Copyright and Digital Cultural

Heritage

Kathryn MichaelisFebruary 3, 2015

“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

What is copyright?

● The work’s creator(s)

● The descendants of deceased creators (if copyright still applies)

● The repository where the materials are held, in some cases

Who owns copyright to a work?

Original works of authorship fixed in a tangible form, whether published or unpublished

Examples: published books, recorded music, letters, motion pictures, photographs

What can 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”

What can’t be copyrighted?

● 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● Unpublished works: author’s life plus 70 years (Anonymous works or death date unknown: 120 years from creation)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

Public domain (United States)

http://librarycopyright.net/resources/digitalslider/

Digital Copyright Slider

Fair use is: a legal doctrine that provides an exception to the exclusive right granted to the owner of a copyrighted work

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:

Fair use: what it is, what it isn’t

Factor #1: Purpose and character of the intended use

Derivative use vs. transformative use

Salinger vs. Colting

Factor #2: Nature of the copyrighted work

Love vs. Kwitny

Factor #3: Amount and substantiality of the work used

Kelly vs. Arriba Soft Corporation

Factor #4: Effect on market value

Twin Peaks Productions, Inc. vs. Publications International, Ltd.

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

Licensing

Licensing Example:Planning Atlanta Maps/Publications

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

Creative Commons

● Very rare for libraries/archives to be legally challenged over digitizing copyrighted archival material

● Take-down statements

● Document, document, document

Good faith effort matters!

● 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

Elements of a license agreement