FROM THE DESK OF THE ARCHIVES ADVISOR:
Legislative changes change the work of archivists forever
Michael Gourlie, Archives Advisor
In recent legislation creating the Library and Archives of Canada, the House of Commons also amended provisions of the Copyright Act that protect unpublished materials, the bulk of holdings of most archival institutions. This revision is the latest in a series of legislative changes pertaining to copyright, freedom of information and the protection of privacy that have changed the work of archivists forever. While initially appearing punitive to archivists, these changes will ultimately benefit the archival community.
Prior to the 1980s, one could argue that archival institutions were largely untouched by most legislation. While repositories were created by legislation or governed by internal policies, their actual functions were not rigidly defined. Most common archival practices were not spelled out, and it was largely at the discretion of individual archivists and institutions to define restrictions on access to records, as well as to determine whether to provide copies of records to researchers. One could also argue that, for the most part, this system worked reasonably well for archivists as well as researchers.
Beginning with the development of freedom of information and protection of privacy laws at the federal level in the 1980s, there has been an increase in the legislation that affects how archivists administer the records in their care. It seems that with every passing year, another law has been passed or amended that changes the way that archivists undertake their work. While archivists did not initiate this legislative activity, these acts have a far-reaching and complex impact on the holdings of archival institutions and the day-to-day work of archivists. These laws were implemented for good reasons that satisfy the agendas of some individuals and organizations (such as recording artists, journalists, or privacy advocates); however, the archival community and the records in its care are caught in the crossfire, leaving archivists no choice but to adjust their practices. For those archivists who maintained what they believed to be ethical and sensible custodial practices for the records in their care, the increasingly rigid legislative framework can seem overwhelming in its scope, extremely bureaucratic, and, in some cases, entirely unnecessary. In light of other pressing concerns, trying to confirm the death date of a long-dead individual just to provide a copy of a document seems the height of absurdity.
While elements of that perspective may be valid, there are benefits to a better-defined legislative environment. Clearly, no archivist would suggest that laws regarding copyright, freedom of information and protection of privacy are unnecessary. They provide either definitive answers to some questions or a framework to analyze problems faced by archivists in providing access to records. For more thorny access problems, the work of archivists still retains an element of assessing the risk of allowing access or reproduction, but this assessment is now informed by legislation, concepts learned through professional development opportunities (such as the ASA-sponsored workshop Copyright Issues for Archival Institutions held in Calgary recently), and publications to help archivists make the right choices. In light of the coming wave of retirements of experienced archivists accustomed to making access decisions, legislation and policy will provide necessary direction to people new to the archival community and its work.
While transitional provisions and amendments are frustrating, the inclusion of archives in key legislation raises the profile of the archival community and gives greater authority to its work. Hopefully, archivists will use this profile to advance their own position in other areas rather than reacting to and putting up with the agenda of others.