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Normally, creating a derivative work based upon a facsimile of an eighteenth-century text without needing to ask for special permission would be a right in any country that honours public domain, but the preceding agreement would seem to preclude such use. Laura Mandell has also critiqued the limitations on using these texts, and subsequently has secured agreements to mediate between commercial vendors and the community of scholars working in eighteenth-century studies. See 18thConnect, unixgen.muohio.edu/~poetess/NINES/home.html . If I understand this agreement correctly, it is an important development for searching, though it also protects the investment of Gale by limiting access to the full transcriptions and images. According to Mandell, “you’ll be able to find the bibliographic data of the texts containing the keywords for which you search: if your library subscribes to ECCO, you can get the text directly, but if not, at least you now know which texts you’ll have to find through some other means (microfilm, interlibrary loan, visit to special collections).” (External Link) . At the least we might be concerned about workflow, having to make a special request for each derivative work. And while it is highly unlikely that Gale would deny any scholar the right to create a derivative work based on these resources, clearly the ease of copying and publishing online has resulted in more restrictive user agreements than books ever inspired. The agreements for accessing commercial databases engender a certain caution about actually using the large volumes of material that are available by subscription. Databases represent important and powerful sources of volumes of information, and in terms of literary studies, enable for the first time the possibility for many researchers of conducting what Franco Moretti has termed “distant reading” of literary texts. Franco Moretti, “Conjectures on World Literature,” New Left Review 1 (January–February 2000). http://newleftreview.org/A2094. But this analysis is impossible if we cannot access, download, and manipulate large bodies of data.

For example, I have been told by a librarian at my institution that printing or downloading a non-substantial portion of a database “(an article, a chapter, a results list)” is permissible, but “if repeated over time with the purpose of duplicating and archiving a substantial part you are probably morally infringing… The vendor assumes that researchers acting in a normal scholarly way in relation to e-resources will not infringe. For example, harvesting or using robots or spiders to download/copy would definitely not be normal research,” and that in any case “As a researcher you are not inconvenienced since the database is available online.” On the one hand, these instructions are by no means punitive or extraordinary, but what if a scholar’s (arguably quite “normal”) digital research concerns reading, conducting OCR, and running analysis tools on a large set of documents offline for a systematic study of a large body of works, or is dependent upon gathering facts (which are not copyrightable) from a database, which may or may not be protected by copyright? Database rights are by no means clear to lawyers and judges, much less to a scholar of English literature: see, e.g., Robert G. Howell’s analysis of the “considerable debate” over whether “the element of ‘originality’ in Canadian copyright law can be sufficiently constituted simply upon industriousness, labour or ‘sweat of the brow,’ or whether a modicum of creativity is necessary.” “Recent Copyright Developments: Harmonization Opportunities for Canada,” The University of Ottawa Law and Technology Journal 1.1-2 (2004), 157. (External Link) . See also Robert G. Howell, “Database Protection and Canadian Laws (State of Law as of June 15, 1998),” prepared for Industry Canada and Canadian Heritage, October 1998. (External Link) . And see Pierre-Emmanuel Moyse, “Database Rights in Canada,” Canadian report commissioned by AIJA, Lisbon, August 2002. (External Link) . These restrictions create an imperative for digital scholars to build new databases of early modern materials with an open access license. The Text Creation Partnership (TCP) with EEBO, ECCO, and Evans offers one exciting possibility, as the license eventually “allows scholars to use texts in their entirety to reproduce or create new editions." (External Link) . However, it is unclear whether this agreement would allow for truly releasing all the texts into the public domain. Does public access to the texts actually mean that users could download the set of 25,000 texts in its entirety? Public access is one thing, but full access might well be limited by page views, expiring sessions, and export limitations to a certain number of records, pages, or documents at a time, as various online resources have shown For example, the English Short Title Catalogue (ESTC) online limits downloads to 1,000, and probably for good reason to limit server traffic, but this proves to be problematic if one wants to analyze the locations of, or subject matter of, all 9,114 works published in London between 1795 and 1796. . My institution’s library, a partner in the Early English Books Online—Text Creation Partnership, specifies on every page linking to a database such as EEBO, ECCO, or ESTC that “Systematic copying or downloading of electronic resource content, including the downloading of a full issue, is not permitted by Canadian and International Copyright law.” (External Link) . However, the Canadian Copyright Act [C-42] does not refer to systematic downloading or to database rights, and though the library cautions that every user is responsible to be aware of copyright, there is no information available about how much downloading is considered systematic, and which International Copyright law forbids it.

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Source:  OpenStax, Online humanities scholarship: the shape of things to come. OpenStax CNX. May 08, 2010 Download for free at http://cnx.org/content/col11199/1.1
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