Copyright in the public domain

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The digital realm has brought us, among other things, an awareness of Digital Rights Management (DRM) files and a case against the music-sharing platform Napster.  These and similar issues have served to implant the matter of copyright into the public psyche in a way that it had not been seen before.  But the last ten days have seen an even more heightened sense of awareness of copyright in the public eye.  On January 2nd, Kevin Smith, the Scholarly Communications Officer at Duke University, posted a blog about the repercussions of the 1976 Copyright Act.  He explains in very clear language why the works of American authors entered the public domain in other countries on January 1st while they will remain protected by U.S. copyright until 2019.  However, unpublished works are protected only for 70 years after the death of the author, so the unpublished works of authors who died in 1943 are now in the public domain — which means archives can freely digitize and publish online any letters or other unpublished works of donors who died in 1943 or before.  (This list of people includes Stephen Vincent Benét, George Washington Carver, Beatrix Potter, Sergei Rachmaninoff, and Simone Weil.)

Television has also gotten onto the copyright bandwagon.  The Good Wife aired an episode on January 5th entitled “Goliath and David” that gave a very thorough explanation of derivative and transformative works of music in light of copyright protections.  And on the same evening, The Simpsons aired “Steal This Episode,” in which Homer was tried for publicly showing pirated versions of movies.  Perhaps archives and libraries should take advantage of this heightened awareness of copyright issues and make this a time to update donor agreements to reflect what sorts of materials will be unavailable to users due to copyright restrictions, to educate patrons about the impacts of copyright on the availability of archival materials, and to clarify what sorts of materials can and cannot be published online because of copyright provisions.

Copyright in archives

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The principle of copyright was incorporated into the original Constitution of the United States, with Article I, Section 8 providing to Congress the power “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.”  This clause seems to have been intended as a somewhat benign protection of intellectual property, but the laws that have been created over the years to implement this principle are gathering increasing relevance (as well as erecting new impediments) to the work being done in libraries and archives.  Some interesting recent decisions include:

  • Kirtsaeng v. Wiley (2013).  The basic question raised in this case is whether the doctrine of first sale applies to foreign works.  If not, archives and museums would need to have permission from the copyright holder to display or lend items.  In this decision, the U.S. Supreme Court sided with the Thai student Kirtsaeng who had resold imported copies of books published by John Wiley & Sons, Inc.  In the words of Peter Hirtle, the decision can be summed up as “you bought it, you own it.”
  • Georgia State University (2012).  Oxford, Cambridge and Sage publishers brought a suit against the university for infringement of copyright through its e-reserve system.  The judge generally sided with Georgia State’s interpretation of fair use guidelines, though she did rule that only 10% or one chapter of a book can be provided under fair use.  (NB: This case is under appeal.)
  • Authors Guild v. HathiTrust (2012).  This case was brought against five universities who had digitized book material, with two practical uses in mind (alongside a dark archive): to provide scholars a corpus of works for text mining and to reformat books for the visually impaired.  The judge made summary judgment for the defendants on the reformatting and text mining issues and questioned the standing of the Authors Guild to bring suit about works for which they do not hold copyright (i.e., those books which HathiTrust had assumed to be “orphan works” but which, in fact, have existing copyright holders).   (NB: This case is under appeal.)

Simplistically stated, archives and special collections libraries acquire unique items, so they are less likely than a traditional library to have vast quantities of published materials in their stacks.  However, two trends are necessitating the attention of archives to copyright issues: mass digitization efforts and the acquisition of born-digital materials.

  • A good example of the intersection of copyright and digitization comes from the Thomas E. Watson Papers Digitization Project at the Southern Historical Collection of the University of North Carolina at Chapel Hill.  Staff conducted intensive research into the status of correspondents in the collection in order to determine copyright status.  The inordinate amount of time involved in this research process along with the inconclusive findings on nearly half of the correspondents caused the staff to conclude that this procedure was not scalable to large collections.  Instead, they have moved toward a take-down policy, publicizing their willingness to remove digitized documents from the Internet if a claimant provides notice that they hold copyright to said documents.
  • The boilerplate end-user license agreements (EULA) for software generally prohibit the transfer of software to a third party.  It remains to be seen whether companies will pursue legal action against repositories that have accepted software from donors.  This situation could become more problematic for institutions that determine to follow a path of emulation as their access mechanism, thereby most likely necessitating the reuse of code from proprietary software.  Lawsuits against cultural institutions are still relatively rare, but that may not continue to be the true (see HathiTrust case above).
  • With both digitized and born-digital materials, some repositories are moving toward making these records available off-site.  In doing so, researchers gain much greater ease of access, but at the same time, reference archivists no longer have the intervention of a face-to-face interview during which they can identify research priorities and explain use restrictions.
  • The Standards Committee of the Society of American Archivists endorsed the Well-intentioned practice for putting digitized collections of unpublished materials online (OCLC, 2010).  In addition to recommending the use of published take-down policies, it also suggests working with donors before an acquisition to resolve any copyright questions.
  • The meeting of the World Intellectual Property Organization this summer adopted the “Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled.”  The treaty requires contracting parties to allow accessible copies to be created, distributed domestically, exported, and imported.

For more information about copyright issues, the following web sites may be useful: