Audiovisual Archives and the Public Domain: Economics of Access, Exclusive Control and the Digital Skew

Abstract

This chapter is situated within a larger research project looking at copyright law, film archival practices, and the accessibility of archival film and orphan works. In what follows, it will focus specifically on the concept of ‘digital skew’ — an asymmetry between analogue and digitized collections — which seems to inhibit the visibility of important works of film that are arguably crucial to our understanding of the past. Copyright gridlock has been identified as the main cause of the occurrence of a so-called digital skew in audiovisual archives. Some categories of works can be considered ‘legally difficult’ indeed; they will not be digitized and made available (as a matter of priority) and therefore contribute extensively to this digital skew. As a consequence of examining the accessibility of works that should be free from any legal restrictions — public domain works — it becomes apparent that even in that category the relation between what is potentially available in analogue form as opposed to its digital copy is skewed. By highlighting the varying practices in which both for-profit and non-profit archives provide access to their public domain works, the chapter reveals how the positioning of the digital skew exclusively within the legal paradigm neglects not only certain economics of archival access but also a contributing factor of a human agenda. The chapter argues that a reframing of the debate is needed and highlights how the digital skew is not to be understood as a purely legal issue, but as a more complex issue in which human agency plays a fundamental role.