Transcript Access Issues: Copyright and Rights Management

Copyright, Archives, and
Digital Libraries
Peter B. Hirtle
Co-Director
Cornell Institute for Digital Collections
[email protected]
Overview of Presentation
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Quick introduction to copyright
Areas of current contention
Copyright versus Licensing
DON’T EXPECT DEFINITE ANSWERS
IANAL
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Who here has copyrighted
something?
What Is Copyright?
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The right to make copies?
A form of property?
 “intellectual property” – usually includes
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Copyright
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Publicity
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Patents
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Privacy
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Trademarks
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Trade Secrets
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Answer: A Monopoly
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Not like other property
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“stealing” it doesn’t deprive owner of its use
Given by the government
Limited in scope
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Copyright vs. Physical Ownership
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Physical ownership also can control use of
material – but it is different than copyright
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Licenses may mirror copyright terms
Copyright can also limit what you as the physical
owner can do
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Where does copyright come
from?
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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;
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Further Sources for Copyright
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US Code (Title 17)
Interpretation by US Courts
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To date, few court cases to
test distribution of material on
the Internet
Also few on the use of archival
material
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When does Copyright Matter?
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When you supply material to patrons
When you use archival material yourself
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in publications
on your website
It controls what we can use.
It controls how other people can use our stuff.
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Why does Copyright Matter?
SAA Code of Ethics
 Copying copyrighted material may place your
institution at risk
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You need to work with relevant officials to
determine how much risk your institution is
willing to assume
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How Can We Understand the Law?
A Series of Questions
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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?
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What works are eligible for
copyright protection?
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Original works of authorship
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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
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Reality check
Which of the following would be eligible for
copyright protection?
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A Novel by Hemingway
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Original
Highly creative
Expression matters, not
facts
Fixed on paper (and
later print)
Copyrightable!
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A Score by Beethoven
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Original work of
authorship
Highly creative
Expressive, not factual
Fixed on paper
Copyrightable!
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Telephone White Pages
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Original work of authorship?
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Hard work, yes
Compiled
But not creative
Factual, not expressive
Fixed on paper
Not Copyrightable!
(Feist v. Rural Telephone)
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Microfilming Public Domain Texts
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Original work of
authorship?
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Hard work, yes
Creative, no
Not expressive
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No authorial voice
Not Copyrightable!
(maybe – Bridgeman v.
Corel)
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How does one secure copyright
protection?
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Automatic Protection
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Since 1 March 1989
No requirement for notice
or registration
Registration is still
required to sue
©
Remember my opening question: You have
all made copyrighted works!
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Copyright before 1989
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A series of formalities
Differs for published and unpublished:
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Copyright notice
Renewal after 28 years
Manufacturing requirements
For works created before 1989, publication
status matters tremendously for copyright
duration.
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Publication
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“…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…
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Is it Published?
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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.
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Is it Published?
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Speech delivered before 200,00+ people
On television and radio
Text distributed to press
Unpublished!
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Who is the owner of the
copyright?
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Creator of the original work
Work-for-hire
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Employers own your work
Independent contractors own their work
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But prior to 1978, usually the opposite
Assignment and transfer
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In writing
By inheritance
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What are the rights of the
copyright owner?
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Reproduction
Distribution
Derivative works
Public performance and display
Moral rights for art
Technological protection systems
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How long do copyrights last?
(see handout)
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Works created during or after 1978
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Works published before 1978
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Life of the author plus 70 years
Work for hire: 95 years from publication
Generally 95 years maximum
Shorter if the work was not registered/renewed
Works created but not published before 1978
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Life of the author plus 70 years
Delayed until 1 January 2003
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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.
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When did/will Copyright Expire?
D. 2048
A. It is in the public
domain now
(predates 1923)
B. 1981
(70 years after death)
(171 years after creation)
C. 1 January 2003
(when most MSS enter the
public domain)
D. 2048
(171 years after creation)
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Section 107: Fair Use
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Judicially interpreted doctrine – no guidelines
 Purpose
 Nature
 Amount
 Effect on market
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Other Exemptions to Copyright
Owner’s Exclusive Rights
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Section 108: Library copying
Section 109: First sale
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Sales, rental, lending
 But not for CD’s!
Public display
Section 110: face-to-face
and distance learning
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What about Digitization?
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Rules don’t change – digitization is copying
You are now the user
Makes infringing acts more noticeable
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So How Can You Make (and use)
Copies?
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Copying is the exclusive right of the copyright
owner – and you usually don’t own the
copyright.
First, make sure material really is
copyrighted!
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Many people claim copyright when none exists
Copyright may have expired
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Copying Copyrighted Material
Four Options:
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Use Section 108 (Library and Archives)
Use Section 107 (Fair Use)
Ask permission
Run the risk…
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Option 1: Section 108 Copying
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In an area of uncertainty, some concrete
rules:
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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
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Other rights under Section 108
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You can digitize collections!
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For “purposes of preservation and security”
For deposit in another library
Access limited to premises
20 year window on digitization
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What about graphic materials?
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Section 108 excludes musical, graphic, and
AV works
Must use Section 107, “Fair
Use”
Make copies for nonprofit
educational purposes, not
commercial reasons
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Option 2: Locate Copyright
Owners and Secure Permission
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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.
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Manuscript permissions
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For famous authors, WATCH project
<http://www.hrc.utexas.edu/watch/watch.html>
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Ask permission?
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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)
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Option 3: Risk Copying without
Permission
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How much at risk are you?
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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?
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Risk Assessment
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No institution has yet been sued
Statutory fees are only for registered material
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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
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Ways to Minimize Risk
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Make a “good-faith” effort to locate copyright
owners
Use a disclaimer
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See Coolidge collection at LoC
Limit copies to research and educational use
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Don’t make a profit on them
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Non-copyright issues
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Emergence of quasi-copyright
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Technological protection measures
Encryption
Licensing
 Click-through, shrinkwrap
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Archives and Licensing
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Quasi-copyright control over reproduction
Based on ownership of physical object
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May have no legal basis!
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Bottom line:
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Will you sue?
What will you gain?
Reproduction = loss of control
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Other IP Dangers
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You may need to respect rights of:
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Privacy
Publicity
Trademark
Trespass
Question: Which state has the strongest laws
about publicity?
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Conclusion
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Treat creators fairly
Know your rights!
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For More Information…
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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
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