Apropos of the SOPA/PIPA controversy last week, I've revised my short paper on digital copyright issues written for a local history project a few years ago. The website where it was posted has since been shut down, so I'm re-posting it here for my own reference. Even without SOPA/PIPA, modern copyright law has a stifling effect on preserving genealogy and local history, while profiting no one. "Orphan works" still under copyright, are being lost because they cannot legally be curated or shared on the Internet.
Pocahontas County Historic Preservation Project: A First Draft of Digitization Policies
Goals of the Digitization Project
- To facilitate preservation of historic materials through digitization.
- To make freely available as much material as possible, over the web and through local libraries, museums, and historic sites.
- To behave in a scholarly, courteous, and responsible manner to those who create or donate historic materials and to those who wish to access such material for noncommercial purposes. This must include acting in accordance with copyright, property, and privacy laws.
Digitization has tremendous potential to enhance preservation of historic materials, and to make all types of information available to interested parties around the world at little cost. However, it also presents novel problems in intellectual property rights. Who owns the rights to reproduce materials, and what may be done with the digital copies? There have been many changes in intellectual property rights law in the last 20 years, and there are few simple, straightforward answers to these questions.
I believe there are some cases in which we can use materials without fear of infringing anyone's rights.
- Text and photographs published prior to January 1, 1923 are considered in the public domain. At least one item of interest to our project, William T. Price's Historical Sketches of Pocahontas County, has been scanned by the Google Books Project, and is freely available at their website in pdf and ascii text files.
- Works of the United States Government, and other government-generated writings, as described by the West Virginia Division of Culture and History.
- Any work that was neither published nor registered as of Jan. 1, 1978, and whose author died before 1933 entered the public domain on Jan. 1, 2003, unless it was published on or before Dec. 31, 2002. (U.S. Copyright Office, see passage in Appendix.)
- Unpublished works that have been donated, along with their copyrights, to the Historical Society, the Genealogy group, or the Library system. (See the "Deed of Gift" references in the Appendix.) For example, if a diary and some family snapshots are donated by the creator's heir, along with explicit permission to share and reproduce, we may legally digitize and post these on the Web site.
- Our own photographs of three-dimensional artifacts, with the permission of the artifact owner.
- Descriptions of the materials in our local collections, using the Archon archive content management system to list our holdings on the Web, even where we cannot find the copyright owner or obtain permission. We can display excerpts of text or images as long as we comply with the Fair Use Doctrine. (Described by the Copyright Office, see Appendix.)
- Digital copies of unpublished works under copyright protection can be made (up to three copies) by a library for preservation purposes, but they cannot be posted on the Internet, or otherwise displayed or distributed. (Section 108 of the U.S. Copyright Code, see Appendix for a link.)
Items that may not be available for digitization or publication on a Web site include:
- Studio and professional photographs where the photographer was still living as of January 1, 1933. The person who commissioned the photo did not get copyrights at purchase. These remained with the photographer, unless explicitly surrendered.
- Photographs and papers found and donated to the Historical Society. Although these organizations have legal ownership of the physical objects, copyright does not automatically convey with the object.
- Published materials under copyright protection where the copyright holder is unidentifiable, unavailable, or unwilling to give permission for digitization.
To proceed with the digitization project, we need to identify which materials we have legal right to digitize, obtain permission to use materials where necessary, and determine how we want to share our own materials.
- We need to identify copyright holders for materials already in possession of the Historical Society, the Pearl Buck Birthplace, and the libraries. Where this is known, we can request permission to digitize and share materials.
- As we gain access to new materials, we need to get permission in writing to digitize and share the materials. There are several "Deed of Gift" templates available for us to use in developing our own permission form. (See "Deed of Gift" in Appendix.) It will be important to make sure this form does not sound ominous, intimidating, or excessively technical, lest it have a "wet blanket" effect on offers of information.
We need to spell out our copyright for the Web site. I suggest a Creative Commons Attribution-Non-Commercial license, but this will only apply to materials where we own the copyright (for example, things the Historic Preservation Officer writes while "on the clock;" new photographs of historic locations and objects taken specifically for the digitization project, etc.) Where we use materials by permission with attribution, we have no authority to grant permission to another party.
- The possibility of print publications such as books, calendars, and recordings has been discussed, especially as a form of fund raising for the support of the various institutions involved. Copyright issues must be considered especially carefully for such projects, as they are more carefully examined in for-profit situations.
Appendix: Quotations From Pertinent Sources
Copyright Office On Protection of Digital Rights
Pertinent information from the United States Copyright Office Frequently Asked Questions:
It is illegal for anyone to violate any of the rights provided by the copyright law to the owner of copyright. These rights, however, are not unlimited in scope. Sections 107 through 121 of the 1976 Copyright Act establish limitations on these rights....One major limitation is the doctrine of "fair use," which is given a statutory basis in section 107 of the 1976 Copyright Act....
A party may seek to protect his or her copyrights against unauthorized use by filing a civil lawsuit in federal district court. If you believe that your copyright has been infringed, consult an attorney. In cases of willful infringement for profit, the U.S. Attorney may initiate a criminal investigation....
If you use a copyrighted work without authorization, the owner may be entitled to bring an infringement action against you. There are circumstances under the fair use doctrine where a quote or a sample may be used without permission. However, in cases of doubt, the Copyright Office recommends that permission be obtained....
....Uploading or downloading works protected by copyright without the authority of the copyright owner is an infringement of the copyright owner's exclusive rights of reproduction and/or distribution. Anyone found to have infringed a copyrighted work may be liable for statutory damages up to $30,000 for each work infringed and, if willful infringement is proven by the copyright owner, that amount may be increased up to $150,000 for each work infringed. In addition, an infringer of a work may also be liable for the attorney's fees incurred by the copyright owner to enforce his or her rights.....
....Photocopying shops, photography stores and other photo developing stores are often reluctant to make reproductions of old photographs for fear of violating the copyright law and being sued. These fears are not unreasonable, because copy shops have been sued for reproducing copyrighted works and have been required to pay substantial damages for infringing copyrighted works. The policy established by a shop is a business decision and risk assessment that the business is entitled to make, because the business may face liability if they reproduce a work even if they did not know the work was copyrighted....
....In the case of photographs, it is sometimes difficult to determine who owns the copyright and there may be little or no information about the owner on individual copies. Ownership of a "copy" of a photograph the tangible embodiment of the "work" is distinct from the "work" itself the intangible intellectual property. The owner of the "work" is generally the photographer or, in certain situations, the employer of the photographer. Even if a person hires a photographer to take pictures of a wedding, for example, the photographer will own the copyright in the photographs unless the copyright in the photographs is transferred, in writing and signed by the copyright owner, to another person. The subject of the photograph generally has nothing to do with the ownership of the copyright in the photograph. If the photographer is no longer living, the rights in the photograph are determined by the photographer's will or passed as personal property by the applicable laws of intestate succession.....
Materials In the Public Domain
When U.S. Works Pass Into the Public Domain provides a chart to clarify the rules. The simplest entry indicates that works published prior to January 1, 1923 are in the public domain. Complexity increases from there.
The Copyright Office explains how unpublished works may enter public domain: Certain Unpublished, Unregistered Works Enter Public Domain.
Certain works that were neither published nor registered for copyright as of Jan. 1, 1978, entered the public domain on Jan. 1, 2003, unless the works were published on or before Dec. 31, 2002.
Under the 1909 Copyright Act, works that were neither published nor registered did not enjoy statutory protection, although they were protected under common law in perpetuity as long as they remained unpublished and unregistered. But under section 303 of the 1976 Copyright Act, works that were created but neither published nor registered in the Copyright Office before Jan. 1, 1978, lost their common law protection and acquired a statutory term of protection that was the life of the author plus 50 years, amended in 1998 to life plus 70 years.
As a result of the 1976 Copyright Act, any of the works in question whose author had died over 50 years prior to 1978 would have entered the public domain after Dec. 31, 1977. To provide a reasonable term of copyright protection for these works, and in light of the fact that these works had enjoyed perpetual protection under common law, Congress extended their term by at least 25 more years. Congress also encouraged publication by providing an additional 25 more years, extended in 1998 to 45 more years, of protection if the work was published on or before Dec. 31, 2002.
That first 25-year period expired on Dec. 31, 2002. Any work that was neither published nor registered as of Jan. 1, 1978, and whose author died before 1933 entered the public domain on Jan. 1, 2003, unless it was published on or before Dec. 31, 2002. If the author died in 1933 or later, the work will be protected for 70 years after the author's death, due to the passage of the Sonny Bono Copyright Term Extension Act in 1998.
Fair Use Doctrine
A discussion of the Fair Use Doctrine, by the U.S. Copyright Office
Section 107 contains a list of the various purposes for which the reproduction of a particular work may be considered “fair,” such as criticism, comment, news reporting, teaching, scholarship, and research. Section 107 also sets out four factors to be considered in determining whether or not a particular use is fair:
- the purpose and character of the use, including whether such use is of
commercial nature or is for nonprofit educational purposes;
- the nature of the copyrighted work;
- amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
- the effect of the use upon the potential market for or value of the copyrighted work.
The distinction between "fair use" and infringement may be unclear
and not easily defined. There is no specific number of words, lines, or notes that may safely be taken without permission. Acknowledging the source of the copyrighted material does not substitute for obtaining permission.
The 1961 Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law cites examples of activities that courts have regarded as fair use: quotation of excerpts in a review or criticism for purposes of illustration or comment; quotation of short passages in a scholarly or technical work, for illustration or clarification of the author's observations; use in a parody of some of the content of the work parodied; summary of an address or article, with brief quotations, in a news report; reproduction by a library of a portion of a work to replace part of a damaged copy; reproduction by a teacher or student of a small part of a work to illustrate a lesson; reproduction of a work in legislative or judicial proceedings or reports; incidental and fortuitous reproduction, in a newsreel or broadcast, of a work located in the scene of an event being reported.
Privacy and Publicity Issues
While copyright protects the copyright holder's property rights in the work or intellectual creation, privacy and publicity rights protect the interests of the person(s) who may be the subject(s) of the work or intellectual creation. Issues pertaining to privacy and publicity may arise when a researcher contemplates the use of letters, diary entries, photographs or reportage in visual, audio, and print formats found in library collections. Because two or more people are often involved in the work (e.g., photographer and subject, interviewer and interviewee) and because of the ease with which various media in digital format can be reused, photographs, audio files, and motion pictures represent materials in which issues of privacy and publicity emerge with some frequency....
While copyright is a federally protected right under the United States Copyright Act, with statutorily described fair use defenses against charges of copyright infringement, neither privacy nor publicity rights are the subject of federal law. Note also that while fair use is a defense to copyright infringement, fair use is not a defense to claims of violation of privacy or publicity rights. Privacy and publicity rights are the subject of state laws. What may be permitted in one state may not be permitted in another. Note also that related causes of action may be pursued under the federal Lanham Act, 15 U.S.C. P 1125 (a), for example, for unauthorized uses of a person's identity in order to create a false endorsement.
While an individual's right to privacy generally ends when the individual dies, publicity rights associated with the commercial value connected with an individual's name, image or voice may continue. For example, many estates or representatives of famous authors, musicians, actors, photographers, politicians, sports figures, celebrities, and other public figures continue to control and license the uses of those figures' names, likenesses, etc.
How Libraries Manage Copyright Issues Pertaining to Their Digital Collections
Library of Congress
How the Library of Congress handles copyright issues on its Web site, as explained by the United States Copyright Office FAQ's:
I saw an image on the Library of Congress website that I would like to use. Do I need to obtain permission?
With few exceptions, the Library of Congress does not own copyright in the materials in its collections and does not grant or deny permission to use the content mounted on its website. Responsibility for making an independent legal assessment of an item from the Library's collections and for securing any necessary permissions rests with persons desiring to use the item. To the greatest extent possible, the Library attempts to provide any known rights information about its collections. Such information can be found in the "Copyright and Other Restrictions" statements on each American Memory online collection homepage. If the image is not part of the American Memory collections, contact the Library custodial division to which the image is credited. Bibliographic records and finding aids available in each custodial division include information that may assist in assessing the copyright status. Search our catalogs through the Library's Online Catalog. To access information from the Library's reading rooms, go to Research Centers.
Whenever possible, the Library of Congress provides factual information about copyright owners and related matters in the catalog records, finding aids and other texts that accompany collections. As a publicly supported institution, the Library generally does not own rights in its collections. Therefore, it does not charge permission fees for use of such material and generally does not grant or deny permission to publish or otherwise distribute material in its collections. Permission and possible fees may be required from the copyright owner independently of the Library. It is the researcher's obligation to determine and satisfy copyright or other use restrictions when publishing or otherwise distributing materials found in the Library's collections. Transmission or reproduction of protected items beyond that allowed by fair use requires the written permission of the copyright owners. Researchers must make their own assessments of rights in light of their intended use.
If you have any more information about an item you've seen on our website or if you are the copyright owner and believe our website has not properly attributed your work to you or has used it without permission, we want to hear from you. Please contact OGC@loc.gov with your contact information and a link to the relevant content.
West Virginia University Libraries
How West Virginia University University Library regulates use of its archives, physical archives: Rules for the Use of Library Materials in the West Virginia and Regional History Collection
Some materials in the WVRHC are protected by copyright laws and other restrictions. The researcher assumes all responsibility for possible infringement of copyright and/or other literary, artistic, property or privacy rights in the act of copying or in the subsequent use of the materials copied....The reproduction of any collection in its entirety is prohibited.
Any publication, exhibition, or other public use of materials reproduced must properly credit the source from which a copy is made. The basic credit line is "West Virginia and Regional History Collection, West Virginia University Libraries"....Researchers are not permitted to photograph any materials in the WVRHC. To order photographs, users may inquire at the reference desk about policies, forms and fees.
West Virginia History Online Digital Collections has rules that offer us a model on proper usage: Notes on Rights and Reproductions. Their West Virginia History OnView: Photographs From the West Virginia & Regional History Collection is the sort of online archive we hope to produce.
West Virginia History OnLine digital resources are available for use in research, teaching, and private study only. These materials may NOT be used for publication or exhibition, downloaded and placed on another server where they can be publicly accessed, or utilized in any other public manner without the express written permission of the West Virginia and Regional History Collection. Such permission may be granted only by a curator of the WV&RHC or by the Dean of WVU Libraries. Any reproduction of materials from this site must properly credit the source of the materials. For archives and manuscripts, the proper credit line includes the full name of the collection, plus "West Virginia and Regional History Collection, West Virginia University Libraries." For works of art, the proper credit line includes the names of the artist and artwork, plus "West Virginia and Regional History Collection, West Virginia University Libraries."
Some Materials in the WV&RHC and on this web site are protected by copyright laws and other restrictions. The researcher assumes all responsibility for possible infringement of copyright and/or other literary, artistic, property or privacy rights in the act of copying or in the subsequent use of the materials copied.
Deed of Gift Forms
Local history research organizations such as libraries, museums, and historical associations, can protect themselves against inadvertent copyright violations by obtaining permission to display and use material at the time it is donated. If your organization accepts gifts (items), then it needs a Deed of gift form.
Here are two other sources for Deed of Gift formats:
- Wisconsin Historical Records Advisory Board Best Practices Project, 1997-98
- A Guide to Deeds of Gift
Copyright Concerns For Libraries
There are special rules for libraries and digital copying. Section 108 of the U.S. Copyright Code is a graphic presentation of these rules, provided by Copyright advisory network, a site about the latest developments in digital collections and archives.
Modes of Managing Copyright Issues
- Creative Commons
- The Public Domain: Enclosing the Commons of the Mind by James Boyle
- DigitalKoans--What Is the Sound of One E-Print Downloading?
Online Resources for Further Reading
- United States Copyright Office
- Fair Use, explained by the U.S. Copyright Office
- Rules for the Use of Library Materials in the West Virginia and Regional History Collection
- West Virginia History Online Digital Collections
- West Virginia History OnView: Photographs From the West Virginia & Regional History Collection
- Notes on Rights and Reproductions
- A Guide to Deeds of Gift
- Copyright advisory network
- Section 108 of the U.S. Copyright Code--rules especially for libraries
- Creative Commons
- The Public Domain: Enclosing the Commons of the Mind by James Boyle
- The Public Domain--explained by the Copyright Office
- DigitalKoans--What Is the Sound of One E-Print Downloading?
- WHEN U.S. WORKS PASS INTO THE PUBLIC DOMAIN
- Library of Congress Homepage legal issues, including copyright, privacy, and publicity
- Intellectual Property Rights Server--Copyright page--provides information about intellectual property law including patent, trademark and copyright. Resources include comprehensive links, general information, space for professionals to publish articles and forums for discussing related issues.
- A Look Back at Canarsie, Clouded by Copyright Woes --a case study from the New York Times, describing how Brooklyn Historical Society was unable to give permission to a local historian who wanted to include two photographs from their collection in his forthcoming book.
- COPYRIGHTS AND OTHER RIGHTS IN PHOTOGRAPHIC IMAGES
A detailed discussion of 20th century photographs, copyright law, and licensing