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

2. 2 Overview of Presentation Quick introduction to copyright Areas of current contention Copyright versus Licensing DON’T EXPECT DEFINITE ANSWERS IANAL

3. Who here has copyrighted something?

4. 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. 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. 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. 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. 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. 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. 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. 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. 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. 13 Reality check Which of the following would be eligible for copyright protection?

14. 14 A Novel by Hemingway Original Highly creative Expression matters, not facts Fixed on paper (and later print) Copyrightable!

15. 15 A Score by Beethoven Original work of authorship Highly creative Expressive, not factual Fixed on paper Copyrightable!

16. 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. 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. 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. 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. 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. 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. 22 Is it Published? Speech delivered before 200,00+ people On television and radio Text distributed to press Unpublished!

23. 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. 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. 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. 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. 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. 28 Section 107: Fair Use Judicially interpreted doctrine – no guidelines  Purpose  Nature  Amount  Effect on market

29. 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. 30 What about Digitization? Rules don’t change – digitization is copying You are now the user Makes infringing acts more noticeable

31. 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. 32 Copying Copyrighted Material Four Options: Use Section 108 (Library and Archives) Use Section 107 (Fair Use) Ask permission Run the risk…

33. 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. 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. 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, not commercial reasons

36. 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. 37 Manuscript permissions For famous authors, WATCH project 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. 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. 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. 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. 41 Non-copyright issues Emergence of quasi-copyright Technological protection measures Encryption Licensing Click-through, shrinkwrap

42. 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. 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. 44 Conclusion Treat creators fairly Know your rights!

45. 45 For More Information… The Copyright Law” http://www4.law.cornell.edu/uscode/17/ http://www4.law.cornell.edu/uscode/17/ A Museum Guide to Copyright and Trademark b y 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