Thanks to a tip from Siva Vaidhyanthan, I just spent some time perusing Elizabeth Townsend's terrific Academic Copyright weblog. Some of you may recall Townsend weighing in on the back-and-forth between Siva and Peter Hirtle on strategies for responding to unnecessary restrictions to fair use. It turns out she's been doing research on a number of issues of interest to copyfighters, including investigating the current state of scholarly access to unpublished works. Two recent posts explore the tension between copyright holders/publishers and academics/librarians/historians:

Copyright and Unpublished Papers - Three Different Approaches reveals that the people in charge of the Mark Twain papers have put everything on microfilm, claiming that this is "publishing" them, so as to prevent the works from entering the public domain after 2003. Remarks Siva, "This is, of course, great evidence in the argument for copyright formalities."

Some Thoughts on the Internet and Society in Relation to Unpublished Works, meanwhile, looks at a paper Peter Hirtle is writing on the "Gentleman's Agreement of 1935" -- "an agreement between librarians and publishers on what was ok to copy without anyone filing infringement lawsuits." The post takes us off the beaten path of the current discussions about copyright, reminding us that access isn't only about making materials available on the Internet: it's also about "continued access to materials with privacy to look, transparent copyright information for materials posted on the Internet and those still remaining soley in archives, and a better fair use scheme that scholars can actually use and depend on, particularly when literary executors DO NOT give permission to quote from materials (this is when it is needed most)."

It's an important point. Those of us who live and breathe the Internet are dazzled by the possibilities for enriching education, knowledge, and creativity, and we tend to talk about glorious futures snuffed out. But what we're aiming to protect is ancient. We have a history of scholarship, knowledge building, and knowledge preservation. We have communities that still understand and respect fair use, both in concept and practice. It's vital that they get a seat at the bargaining table, explaining what the formalities were good for, and why the gentleman's agreement should still hold.