Copyright Law for Archivists

Georgia HarperUniversity of Texas System

Overview

Purpose of copyrightCopyright basicsPreserving & accessing archival materials

Statutory optionsLicensingRights managementLobbying Congress

Copyright Basics

What does copyright protect?What’s in the public domain?What are owners rights?What are users rights?Library archival rightsWorks in their last 20 years of protection

What Does Copyright Protect?

Original expression - a person’s unique way of saying somethingfixed in a tangible mediumOnly requires minimum creativityDoes not protect factsDoes not protect ideas, systems, processes

When Does it Begin?

Today: protection starts at the moment of fixation in a tangible mediumIt’s automaticNotice is not requiredRegistration carries certain benefits but is only required to bring a lawsuit

When Does It End?

Works published before 1978Publication + 95 years or 28 years if published before 1964 and not renewed

Works created during/after 1978Life of author + 70Works for hire: Publication + 95/creation + 120

Works unpublished before 1978Life of author + 70

Foreign Works

Territoriality, national treatment and choice of lawBilateral and multi-lateral treaties

Adherents provide similar sets of rights

Wide variations still existRule of the “shorter term”

Restored Copyrights

Certain foreign works have had their copyrights “restored” by the URAA

Not in public domain on Jan. 1, 1996Or date of adherence to WTO or Berne

First published in an eligible countryOne rights holder national or domiciled in eligible countryNot published in US w/in 30 days

Examples Showing How Works Qualify to be Restored

Composition created in 1920Recorded in London in 1935

50-year term in UKWork is public domain in UK in 1985

On Jan. 1, 1996, work is in pd in UK, so not eligible for restored copyright in USIf recorded in 1947: restored in US

Examples, continued

Film created in 1983 in ChinaOn Jan. 1, 1996, work is still protected in China, so copyright is restored in US

Term is complicated:Law of work’s country of origin likely determines authorshipAuthorship determines term in US (life of author plus 70 or 95 years from publication)

The Public Domain

US works published in 1922 or earlierPd compositions recorded in foreign countries in 1945 or earlier (50-year term)Pd compositions recorded in US before 1972

Note possible state law claims

Abandoned and waived copyrightsSome foreign works may be restored

Exclusive Rights ofthe Copyright Owner

Make copiesCreate derivative worksDistribute, display and perform works PubliclyArtists’ moral rights

Integrity/attribution

This is not the only way to provide an incentive to create! It’s just the way we’ve been doing it for 200 years.

Exemptions that Promote Public Uses

Fair use (17 USC 107)Library’s special privileges (108)First sale doctrine (109)Educational performances/displays (110) and the TEACH ActModifications for blind and disabled (121)

Archival Rights and Access

Section 108 (b)Section 108 (c)Section 108 (h)

Section 108 (b)

Unpublished worksFor preservation and security or deposit for research in another libraryWe must possess copy

Cannot make digital archive copies available off library premises

Section 108 (c)

Published worksTo replace damaged, deteriorating, lost and stolen works and works whose format is obsoleteWe must determine that an unused replacement is not available at a fair price

Cannot make digital archive copies available off library premises

Section 108 (h)

“Last 20 years” ruleLibraries may distribute published works for scholarship and research Work is not enjoying commercial exploitation

Most works: 1923 – 1927, inclusiveRecordings: pre-1972

Ambiguous application to musical, pictorial, graphic, sculptural & audiovisual works

Fair Use and Other Exemptions

Fair useElectronic reservesMultimedia projectsDistance education

TEACH Act

Role of Fair Use

Fair use embodies a balance of interests

Between owner control and public accessBetween owner control and public’s First Amendment rights

Fair use addresses market failuresFacilitates good, but uneconomic uses

Fair Use Statute

17 USC 107Criticism, commentary, scholarship, research, news reporting, classroomFour-factor fair use test

Character of the useNature of the material usedAmount and importance of part usedEffect on market for permission/original

Licensing

Licenses can supplant lawBe vigilant about terms on shrink-wraps and click-ons that strip library, archive or patrons of statutory rightsSeize opportunities to negotiate better access than the statute may provide

Promoting Patrons’ Use

Utilize public Websites to show collectionsAcquire rights from rights holdersUpdate acquisitions formsRevisit collection restrictionsFacilitate permissions processEducate researchers about rights issues

Lobbying Congress for Change

National Recording Preservation Board

Has mandate to study laws that must be changed to make preserved recordings available digitally!

Modify premises-only restrictionsClarify that 108 (h) rights apply to all media

Summary

Identify works in the public domainOthers: Digitize and archive in accordance with 108 (b) and (c)

No digital distribution to publicLast 20 years, distribute digital copies for research and scholarship

Consider fair useIf no exception: get permission/licenseAggressive rights managementLobby Congress to change 108