PRA-L Archives

From: "Gene Pennington" <>
Subject: COPYRIGHTS - 2ND POSTING
Date: Wed, 10 Mar 1999 14:44:40 -0800

This is the 2nd posting of Katherine Cochrane's white paper on copyrights.
She has presented it without references and as an opinion piece. Katherine
reminds us that
she is NOT an attorney at law and the concepts presented in this paper are
her opinions and should not be taken as legal advice. When/if the Board
accepts this document as our guidelines, we can publish it on our website.
Then we can enhance it with links to related websites to make the document
more useful to researchers.

=======================================================
Copyright Concepts for Genealogists
(c)1999 Katherine W. Cochrane
Summary
There is a great deal of confusion concerning copyrights, made more
complicated by recent changes in the US Copyright laws in late 1998. In
this paper I address only the basic concepts concerning what a copyright
consists of, how copyright law can protect creators' rights to literary or
artistic works, and what needs to be done to comply with copyright law.
Disclaimer
Contrary to the accepted practice of establishing one's credibility as an
authority on the subject matter one is addressing, I am going to start by
disclaiming any authority in the matter of copyright law. I am not a
lawyer, and I am not a copyright specialist in any sense. Questions of a
specific legal nature about this subject should be referred to a qualified
lawyer who specializes in this area of the law. However, as a publisher I
have done my best to become informed about the US and international
copyright laws, for the same reasons that any publisher or author should be
aware of them: to avoid infringing others' rights under the laws (and avoid
litigation), and to protect my own rights, and those of authors and artists
who depend on me for this purpose as their publisher.
That said, I have spent considerable time and effort reading and discussing
the issues surrounding copyright and intellectual property, and I am happy
to share my opinions on this topic and references I have found useful for
understanding them with the Pennington Research Association (PRA) and anyone
else who has access to this document. This paper represents my opinions
alone, and concepts contained in it do not necessarily represent the opinion
of the Pennington Research Association or any other entity. Neither I, The
CD-Info Company, Inc. nor the Pennington Research Association accept any
liability related to any use of information or opinions contained in this
article.
What is Copyright
Copyright is intended to provide control for a copyright owner over what is
done with an original work, by making it illegal for anyone else to use
protected works without permission of the copyright owner. To facilitate
enforcement of the US copyright law, the US Congress chartered the Library
of Congress to be the registrar and repository for copyrighted works created
in this country. Other countries have similar agencies, and reciprocal
protection for works created in different countries is provided by countries
who have signed the various international treaties that deal with the
subject. Rights under international law may vary somewhat from the laws of
any individual treaty-signing country, however. The laws for each
jurisdiction must be understood individually, and are applied depending upon
the venue of any specific complaint.
Copyrightable Works
The next important concept for our purposes concerns the types of works can
be copyrighted. Copyright only covers the expression of facts or fiction,
not the facts themselves, and it does not protect ideas or concepts, only
their expression or representation in a permanent form. So, of interest to
genealogists in particular, the facts concerning dates and places of events
in individuals' lives are not Copyrightable, but a book or article that
contains a representation of such facts in some fashion can be copyrighted.
Likewise, public records, such as a census or birth certificate or a
registered will or deed, cannot be copyrighted, but a photographic copy of
such a record is the Copyrightable property of the person who created the
copy, and it cannot be republished without permission.
Naturally, there are complications surrounding this, as there are with every
other area of the law. A writer might create a work of fiction that
consists of a story, with characters, as his original creation. Another
writer may wish to "adapt" this story or use these characters in a different
work, without copying the exact expression of them used by the original
author. Sometimes this is legal, sometimes it is not. It is gray areas of
the law like this that keep the legal profession alive and healthy, since
the only sure way to resolve disputes based on situations like these is in a
court of law, and precedent is very important to adjudication of such cases.
Again, except to mention that these issues exist, we are not going to delve
into them in any depth in this paper.
What Is Not Protected By Copyright
[n.b. This section is quoted from the Library of Congress Circular 1:
Copyright Basics. This document is available from the U.S. Copyright
Office, or on the Web at http://lcweb.loc.gov/circs/circ1.html]
Several categories of material are generally not eligible for Federal
copyright protection. These include among others:
Works that have not been fixed in a tangible form of expression, (for
example, choreographic works that have not been notated or recorded, or
improvisational speeches or performances that have not been written or
recorded).
Titles, names, short phrases, and slogans; familiar symbols or
designs; mere variations of typographic ornamentation, lettering, or
coloring; mere listings of ingredients or contents.
Ideas, procedures, methods, systems, processes, concepts, principles,
discoveries, or devices, as distinguished from a description, explanation,
or illustration.
Works consisting entirely of information that is common property and
containing no original authorship (for example: standard calendars, height
and weight charts, tape measures and rulers, and lists or tables taken from
public documents or other common sources).
Establishing Copyright
One of the most important concepts to understand in this context is that
under current US and international law, as soon as any creative work is
committed to a "permanent" form, which could mean saving a file to a
computer hard disk or writing it on paper, it is considered to be the
copyrighted property of the creator and under the protection of the
copyright law, with certain exceptions. These exceptions have to do with
works that are created as "works for hire" by employees of a company or
government agency, or by contractors, when a contract stipulates that the
work is in fact the property of the party that gave the contract or hired
the creator of the work. There are other requirements for defining
something as a work for hire, but that area of the law is outside the scope
of this paper, so I will ignore it for now. It may be addressed in a
subsequent article, however, since it is possible that the PRA may at some
time wish to commission some works for hire, and will need to understand the
copyright issues involved.
So, if a work is copyrighted as soon as it is recorded, why do we need a
copyright office, and how can anyone besides the creator publish such works?
Registration of Copyrights
The copyright office of the Library of Congress (LOC) serves as a registrar
of copyrighted works, and the LOC is the official repository for copies of
all published copyrighted works registered in the United States. It is in
the best interest of authors and other creators of Copyrightable works to
register and deposit copies of their works with the LOC, since while they
hold the copyright automatically upon its being committed to a permanent
medium, their rights cannot be enforced in a court of law unless the work is
registered and deposited before any lawsuit is brought against a violator of
their copyright. Luckily, it is not difficult or expensive to accomplish
this. Information and instructions for registering and depositing a
copyrighted work can be found in the LOC's website at
<http://lcweb.loc.gov/copyright>;.
Publishing Copyrighted Works
Publishing someone else's copyrighted work within the provisions of
copyright law is quite simple. The publisher only needs to obtain written
permission from the copyright owner prior to publication. It is not
necessary for payment of any kind to be made for this privilege, although of
course that is frequently done. Publishing permissions can be of many
kinds, from a one-time use in a specific format to unlimited rights,
depending upon what is included, or in some cases, not explicitly excluded,
in the document that establishes the publisher's permissions.
A secondary copyright, called a "compilation copyright," can be obtained by
publishers who register and deposit works that contain copyrighted or public
domain materials which they have the right to publish. This ensures that no
one can take, for instance, a new anthology of old stories that were in the
public domain, and republish that work or any part of it (beyond what is
allowed by the Fair Use Clause of the copyright law) without obtaining the
publisher's permission.
Sale or Assignment of Copyrights
Copyrights can be sold or assigned, or inherited, under specific sections of
the law, but this is also outside the scope of the present article, and will
not be discussed beyond that bare statement.
Term of Copyright Protection
One of the most important questions asked by people involved in historical
research who wish to publish their findings is, "How do I know when a work
is out of copyright?" The law concerning copyright expiration and some of
the definitions of what constitutes Copyrightable material has just been
changed (in late 1998), so previously-correct information on this point may
be out of date. Put simply, if a work was published on or after 1 January
1978, it will go out of copyright and into the public domain 50 years after
the author's death, or 50 years after the death of the longest surviving
author in the case of works with more than one author.
Works copyrighted before 1 January 1978 are protected for 75 years from the
date of their copyright.
Works that were created before 1 January 1978 but not copyrighted upon
publication are now protected automatically under the US Copyright law for
the same term as copyrighted works. That is, for the life of the author
plus 50 years, or in the case of anonymous works, for the shorter of 75
years from the date of publication or 100 years after creation.
Works in the Public Domain
This brings up the question of what is in the public domain, and what that
implies. Any work that is out of copyright, either because the original
copyright has expired or because the copyright has been nullified for some
reason, is considered to be in the public domain. No one else can obtain an
original copyright to it, although compilation copyrights can be obtained on
works that include public domain material. Also, authors may donate their
work to the public domain if they so choose. If this is done, a statement
to that effect is usually included in the work when it is published.
Fair Use
One part of the copyright law that is widely misunderstood, and frequently
misused, is that relating to Fair Use. In general, this clause provides
relief from the requirement to obtain permission to quote for publication
limited portions of a copyrighted work for certain purposes, including for
reviews or for scholarly work, or to make copies of portions of a work for
personal reference. The definition of what constitutes "Fair Use" is vague,
and varies depending on the size or content of the work, and the purpose for
which the work is quoted. In general, if the amount or type of material
quoted or copied hurts the copyright owner's opportunity to realize
financial benefit from potential sales of the work, or if the copyright
owner's control of the way the work can be used is violated in some way by
such quotation, Fair Use is not applicable. Obviously, this is very
subjective and open to interpretation, and in fact can only be definitely
established by adjudication. The best way to avoid complications is to get
the copyright owner's permission to use a work or portion of it before
publishing in any form.
Enforcing Copyright Laws
Violations of the US Copyright law can be addressed by the copyright owner
by filing a civil lawsuit against the violator. However, before bringing a
lawsuit, the copyright owner must register the copyright and deposit copies
of the work with the Copyright Office of the Library of Congress.
Conclusions
While copyright law is complex, it is not impossible to understand and
observe. Many resources are available for finding out what the law says and
how it affects publishers and researchers.

Gene Pennington
Research Director
Pennington Research Association
www.penningtonresearch.org

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