copyright, archives, and digital libraries peter b. hirtle co-director cornell institute for digital...
TRANSCRIPT
Copyright, Archives, and Digital Libraries
Peter B. HirtleCo-Director
Cornell Institute for Digital [email protected]
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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?
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What Is Copyright?
The right to make copies? A form of property?
“intellectual property” – usually includes
Copyright Publicity
Patents Privacy
Trademarks Trade Secrets
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Answer: A Monopoly
Not like other property “stealing” it doesn’t deprive owner of its use
Given by the government Limited in scope
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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
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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;
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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
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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.
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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
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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?
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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
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Reality check
Which of the following would be eligible for copyright protection?
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A Novel by Hemingway
Original Highly creative Expression matters,
not facts Fixed on paper (and
later print)
Copyrightable!
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A Score by Beethoven
Original work of authorship
Highly creative Expressive, not
factual Fixed on paper
Copyrightable!
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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)
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Microfilming Public Domain Texts
Original work of authorship?
Hard work, yes Creative, no
Not expressive No authorial voice
Not Copyrightable!
(maybe – Bridgeman v. Corel)
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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
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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.
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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…
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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.
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Is it Published?
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?
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
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What are the rights of the copyright owner?
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)
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
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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?
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)
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Section 107: Fair Use
Judicially interpreted doctrine – no guidelines
Purpose Nature Amount Effect on market
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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
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What about Digitization?
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?
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
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Copying Copyrighted Material
Four Options:
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
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
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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
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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
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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.
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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)
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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?
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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
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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
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Non-copyright issues
Emergence of quasi-copyright Technological protection measures Encryption Licensing
Click-through, shrinkwrap
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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
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Other IP Dangers
You may need to respect rights of: Privacy Publicity Trademark Trespass
Question: Which state has the strongest laws about publicity?
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Conclusion
Treat creators fairly Know your rights!
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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