Copyright, Archives, and Digital Libraries Peter B. Hirtle Co-Director Cornell Institute for Digital Collections pbh6@cornell.edu.

Copyright, Archives, and Digital Libraries

Peter B. HirtleCo-Director

Cornell Institute for Digital Collectionspbh6@cornell.edu

2

Overview of Presentation

Quick introduction to copyright Areas of current contention Copyright versus Licensing

DON’T EXPECT DEFINITE ANSWERS

IANAL

Who here has copyrighted something?

4

What Is Copyright?

The right to make copies? A form of property?

“intellectual property” – usually includes

Copyright Publicity

Patents Privacy

Trademarks Trade Secrets

5

Answer: A Monopoly

Not like other property “stealing” it doesn’t deprive owner of its use

Given by the government Limited in scope

6

Copyright vs. Physical Ownership

Physical ownership also can control use of material – but it is different than copyright Licenses may mirror copyright terms Copyright can also limit what you as the

physical owner can do

7

Where does copyright come from?

Is it a natural right? US Constitution (Article 1, Section 8, Clause 8)

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

8

Further Sources for Copyright

US Code (Title 17) Interpretation by US

Courts To date, few court cases to

test distribution of material on the Internet

Also few on the use of archival material

9

When does Copyright Matter?

When you supply material to patrons When you use archival material yourself

in publications on your website

It controls what we can use.It controls how other people can use our

stuff.

10

Why does Copyright Matter?

SAA Code of Ethics Copying copyrighted material may place your institution at risk

You need to work with relevant officials to determine how much risk your institution

is willing to assume

11

How Can We Understand the Law? A Series of Questions

What works are eligible for copyright protection?

How does one secure copyright protection? Who is the owner of the copyright? What are the rights of the copyright owner? How long do copyrights last? What are the rights to use copyrighted

works?

12

What works are eligible for copyright protection?

Original works of authorship Originates with an author Minimum amount of creativity

Compilations Expression only; not ideas or facts

Fixed in a tangible medium of expression Artwork, prints, sculpture, film, electronic

media Copyright is separate from physical ownership

13

Reality check

Which of the following would be eligible for copyright protection?

14

A Novel by Hemingway

Original Highly creative Expression matters,

not facts Fixed on paper (and

later print)

Copyrightable!

15

A Score by Beethoven

Original work of authorship

Highly creative Expressive, not

factual Fixed on paper

Copyrightable!

16

Telephone White Pages

Original work of authorship?

Hard work, yes Compiled But not creative Factual, not expressive

Fixed on paper

Not Copyrightable!

(Feist v. Rural Telephone)

17

Microfilming Public Domain Texts

Original work of authorship?

Hard work, yes Creative, no

Not expressive No authorial voice

Not Copyrightable!

(maybe – Bridgeman v. Corel)

18

How does one secure copyright protection?

Automatic Protection Since 1 March 1989

No requirement for notice or registration ©Remember my opening question: You

have all made copyrighted works!

Registration is still required to sue

19

Copyright before 1989

A series of formalities Differs for published and unpublished:

Copyright notice Renewal after 28 years Manufacturing requirements

For works created before 1989, publication status matters tremendously

for copyright duration.

20

Publication

“…The distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending.”

“A public performance or display of a work does not of itself constitute publication.”

Often surprisingly difficult to determine…

21

Is it Published?

Title page says it is published Distributed to as many as 55,000 people

Maybe unpublished!

LDS Church Handbook of Instruction – distributed only to church officials, not the public.

22

Is it Published?

Speech delivered before 200,00+ people

On television and radio Text distributed to press

Unpublished!

23

Who is the owner of the copyright?

Creator of the original work Work-for-hire

Employers own your work Independent contractors own their work

But prior to 1978, usually the opposite

Assignment and transfer In writing By inheritance

24

What are the rights of the copyright owner?

Reproduction Distribution Derivative works Public performance and display Moral rights for art Technological protection systems

25

How long do copyrights last?

(see handout)

Works created during or after 1978 Life of the author plus 70 years Work for hire: 95 years from publication

Works published before 1978 Generally 95 years maximum Shorter if the work was not registered/renewed

Works created but not published before 1978 Life of the author plus 70 years Delayed until 1 January 2003

26

Reality Check: When does Copyright Expire?

This summer an unpublished story written by Mark Twain in 1876 will be published in the Atlantic Monthly. Twain wrote this independently (not as an employee) He died in 1910.

27

When did/will Copyright Expire?

A. It is in the public domain now (predates 1923)

B. 1981

(70 years after death)

C. 1 January 2003

(when most MSS enter the public domain)

D. 2048

(171 years after creation)

D. 2048

(171 years after creation)

28

Section 107: Fair Use

Judicially interpreted doctrine – no guidelines

Purpose Nature Amount Effect on market

29

Other Exemptions to Copyright Owner’s Exclusive Rights

Section 108: Library copying

Section 109: First sale Sales, rental, lending

But not for CD’s! Public display

Section 110: face-to-face and distance learning

30

What about Digitization?

Rules don’t change – digitization is copying

You are now the user Makes infringing acts more noticeable

31

So How Can You Make (and use) Copies?

Copying is the exclusive right of the copyright owner – and you usually don’t own the copyright.

First, make sure material really is copyrighted! Many people claim copyright when none

exists Copyright may have expired

32

Copying Copyrighted Material

Four Options:

Use Section 108 (Library and Archives) Use Section 107 (Fair Use) Ask permission Run the risk…

33

Option 1: Section 108 Copying

In an area of uncertainty, some concrete rules: For textual records Available to archives open to the public Copying is for private research (not

“direct or indirect commercial advantage”)

Copy becomes property of user An archival copying safe haven

34

Other rights under Section 108

You can digitize collections! For “purposes of preservation and security” For deposit in another library

Access limited to premises 20 year window on digitization

35

What about graphic materials?

Section 108 excludes musical, graphic, and AV works

Must use Section 107, “Fair Use”

Make copies for nonprofit educational purposes, notcommercial reasons

36

Option 2: Locate Copyright Owners and Secure

Permission

Library of Congress has an online database for modern copyrights

But no requirement anymore to register Also no requirement to maintain current

information Publishers have rights departments Rights societies

ASCAP, BMI, Harry Fox Artists Rights Society, VAGA, etc.

37

Manuscript permissions

For famous authors, WATCH project<http://www.hrc.utexas.edu/watch/watch.html>

Ask permission? Civil War letters… AD*Access, Oxford Human Rights Archives

Some people expect you to:“contact rights societies, Internet, publishing houses,

libraries, universities, museums and provincial departments of Education…. Try to find out who inherited the copyright or who administered the estate….” (Canadian Copyright Board)

38

Option 3: Risk Copying without Permission

How much at risk are you? Damages can be high:

Real monetary damages $150,000 statutory damages per

infringement Impoundment of text Criminal charges Attorney fees

Arena is international Should you be scared?

39

Risk Assessment

No institution has yet been sued Statutory fees are only for registered

material Archival material: actual monetary damages

Waiver for libraries of statutory damages if you reasonably assumed use was fair

Copyright infringement insurance State agencies may be exempt

40

Ways to Minimize Risk

Make a “good-faith” effort to locate copyright owners

Use a disclaimer See Coolidge collection at LoC

Limit copies to research and educational use Don’t make a profit on them

41

Non-copyright issues

Emergence of quasi-copyright Technological protection measures Encryption Licensing

Click-through, shrinkwrap

42

Archives and Licensing

Quasi-copyright control over reproduction

Based on ownership of physical object May have no legal basis! Bottom line:

Will you sue? What will you gain?

Reproduction = loss of control

43

Other IP Dangers

You may need to respect rights of: Privacy Publicity Trademark Trespass

Question: Which state has the strongest laws about publicity?

44

Conclusion

Treat creators fairly Know your rights!

45

For More Information…

The Copyright Law” http://www4.law.cornell.edu/uscode/17/

A Museum Guide to Copyright and Trademark by Michael Steven Shapiro, Brett I. Miller, Christine Steiner. AAM, 1999

The Public Domain : How to Find and Use Copyright-Free ritings, Music, Art & More by Stephen Fishman. Nolo Press, 2001