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Copyright and Digital Cultural Heritage

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1 Copyright and Digital Cultural Heritage
Kathryn Michaelis February 3, 2015

2 What is copyright? “The basis for copyright in the United States is found in Article I, Section 8 of the U.S. Constitution, which authorizes Congress to enact laws ‘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.’” Hirtle, Peter, Emily Hudson, and Andrew T. Kenyon. Copyright & Cultural Institutions: Guidelines for Digitization for U.S. Libraries, Archives, & Museums

3 Who owns copyright to a work?
The work’s creator(s) The descendants of deceased creators (if copyright still applies) The repository where the materials are held, in some cases

4 What can be copyrighted?
Original works of authorship fixed in a tangible form, whether published or unpublished Examples: published books, recorded music, letters, motion pictures, photographs Copyright is automatic, even in unpublished materials--do not need copyright symbol, though that might affect the copyright term.

5 What can’t be copyrighted?
Ideas, facts, names, titles, extemporaneous expressions, works in the public domain Examples: an idea for a novel or a script, a song you make up but don’t record or write down, the pseudonym “George Orwell”

6 Public domain (United States)
Works published before 1923 Unpublished works: author’s life plus 70 years (Anonymous works or death date unknown: 120 years from creation) Most works produced by U.S. federal government agencies (but not state/local governments) Works published without copyright notice, or with notice but without renewal, during certain time periods

7 Digital Copyright Slider

8 Fair use: what it is, what it isn’t
Fair use is: a legal doctrine that provides an exception to the exclusive right granted to the owner of a copyrighted work

9 Fair use: what it is, what it isn’t
Fair use is not: always straightforward or easy to assess Whether a use is fair is determined by weighing four factors:

10 Factor #1: Purpose and character of the intended use
Derivative use vs. transformative use Salinger vs. Colting

11 Factor #2: Nature of the copyrighted work
Love vs. Kwitny

12 Factor #3: Amount and substantiality of the work used
Kelly vs. Arriba Soft Corporation

13 Factor #4: Effect on market value
Twin Peaks Productions, Inc. vs. Publications International, Ltd. Factor #4: Effect on market value

14 Licensing A license is an agreement between rights holder and a licensee, granting the licensee permission to use the copyrighted material in a specific way.

15 Licensing Example: Planning Atlanta Maps/Publications

16 Creative Commons Enables rights holders to allow certain types of uses without granting them to specific licensees


18 Good faith effort matters!
Very rare for libraries/archives to be legally challenged over digitizing copyrighted archival material Take-down statements Document, document, document

19 Elements of a license agreement
Licensor/copyright holder's name Licensee's name Description of material being licensed Description of uses permitted by licensee Description of rights retained by the licensor

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