Digital Rights in theUnited States

Haven Hawley, PhDProgram Director

Immigration History Research CenterJune 19, 2008

Thought Questions

• What is the role of cultural institutions in shaping the meaning of archives in a digital age?

• Can we compare the experience of immigrants defining their identity as diaspora communities to the migration of heritage materials into digital forms?

A Few Myths AboutDigital Technology

The world wide web will replace printand make all information available

The world has never seen anything thatcompares to the internet

Any data that can be encoded are neutral

Information on the Web is free, inherentlydemocratic, and in the public domain

XXXX

Historical Precedentsfor the Internet

• From Gutenberg to 19th-century America:

Development of printing and copyright

• Railroad systems:

Efficiency, collapsing distance/time

Electrical communication:

Telegraph, telephone and radio

“Technology is Neither

Good Nor Bad; Nor Is It Neutral”

(Melvin Kranzberg’s1st Law of Technology)

Cost &Resources

“Fit” WithExistingSystems

InterestGroups

Law &Government

PublicAttitudes

TechnicalExpertise

NewTechnology

Technology Is Socially Constructed

Context is Crucial for Data Use

DataInformation

to betransferred

OriginationCreation orrecording ofinformation

CollectionWays that culturalpractices & valuesshape acquisition

AccessConditions

that affect userpractices

UseInterpretationof information

by researchers

Context isData

InstitutionalMission &

Ability to ServiceHoldings

DonorAgreements &

Rarity ofMaterials

Meaning ofInformation inNew Forms& to New

Audiences

ProfessionalCulture/Filters ofThose Collecting

Information

Challenge: Responsibly Sharing DataWhile Ensuring the

Public Good

What is copyright?

• A balance between stimulating individual intellectual activity and the public good of access to information

What Can Be Copyrighted?

• Forms of expression, not ideas

• Literary, musical (and their words), dramatic (and their music), pantomimes, choreographic, pictorial, graphic, sculptural, motion pictures (and other audiovisual works), sound recordings, and architectural works.

• Fixity required; registration not required

Federalism Complicates US Law

• United States: Title 17 of the US Code

• State: Open records laws

• State: Common law (judge made law)

United States law governs copyright

Federal law is slowly being reconciled with copyright in other nations

Selected U.S. Copyright Laws• Copyright Act of 1790 (14-year term and renewal)• Copyright Act of 1909 (doubled term and renewal)• Copyright Act of 1976 (term of 75 years or author life

plus 50 years; ended renewal option and registration)• Sonny Bono Copyright Term Extension Act of 1998 (term

of 95 or 120 years or author life plus 70 years)• Digital Millenium Copyright Act of 1998 (criminalized

certain technology anti-circumvention actions)

International• Berne Convention Implementation Act of 1988

(conformed US copyright registration to other countries)• Uruguay Round Agreements Act of 1994 (restoration of

copyright for limited foreign works)

Exclusive Rights• To reproduce, perform, display a work• To produce additional works derived from the

original• To distribute copies of a work

Exceptions• But copyright is not unlimited control• Exceptions include fair use, library and archives

activity, government publications, and certain smaller areas

• Practice risk assessment: determination of exceptions often is not conclusive

Is It

In The

Public

Domain?See Charts By Peter Hirtle

& Bromberg & Sunstein LLP

GovernmentOr Other Exception?

Is It

Fair Use?See Four Factors

Libraries and

Archives?

Concise Definitions of Terms(See Title 17 U.S. Code for full definitions)

• Fixed – Made into a material, receivable form• Created – When work was fixed (variant forms

are separate works)• Copies – All reproductions (even first fixed form

is a copy)• Publication – Author authorized distribution to

public by sale, transfer of ownership, rental, loan or lease, or offer of distribution supporting public types of exposure. (A display or performance may not be considered publication.)

Is It in the Public Domain?

Bromberg & Sunstein LLP, “Flowchart for Determining When U.S. Copyrights in Fixed Works Expire,” © 2002, http://www.bromsun.com/practices/copyright-portfolio-development/flowchart.htm

Peter B. Hirtle, “Copyright Term and the Public Domain in the United States,” updated 1-1-08, Academic Commons, http://www.copyright.cornell.edu/public_domain/copyrightterm.pdf

Government or Other Exceptions

U.S. Government publications

United Nations publications

In-house use of projects less problematic

X Absence of © notice not always conclusive

X Uruguay Agreement restored certain works

X Cartoons may be covered by trademarks, too

Libraries & Archives

• Published

• Unpublished

Four Factors of Fair Use

Purpose and character of the use:New work, transformative (not derivative)

Nature of the copyrighted workFactual/reference (not creative/interpretive)

How much and how substantial is selectionRelatively little (not entirety or a core portion)

Effect of use on potential market or valueNo harm (not in competition)

Digital Rights Management

• Digital Rights Management may limit or preclude legal uses – or even knowledge --- of material by embedding restrictions within data or requiring purchase

• Private property versus public good• State law (contract) versus federal law

(copyright)• Criminalization (Digital Millenium Act)

versus civil law (copyright)

IHRC Digital Projects• Digital Access: Finding Aids in

VITRAGE (Virtual Information and Tools for Research of Archives on the Immigrant Experience), http://www.ihrc.umn.edu/research/vitrage/index.html

• Image Collection: Images in COLLAGE (Collections Online: Visual Materials of American Immigration and Ethnic History), http://www.ihrc.umn.edu/research/collage.html

• Research Assemblage: Spotlight on Selected Sources, http://www.ihrc.umn.edu/research/projects/index.htm

• Research Database: Ukrainian-American Demography and Mortality Project (in progress, above)

New Lives: Coming to AmericaThe Breman Jewish Heritage Museum

Atlanta, GA, US

Key SourcesStephan Bechtold, “Digital Rights Management in the United States and Europe,” American Journal of

Comparative Law, 52: 2004, pp. 323-382.Bromberg & Sunstein LLP, “Flowchart for Determining When U.S. Copyrights in Fixed Works Expire,”

© 2002, http://www.bromsun.com/practices/copyright-portfolio-development/flowchart.htm. (Last accessed 6-15-08.)

Peter B. Hirtle, “Copyright Term and the Public Domain in the United States,” updated 1-1-08, http://www.copyright.cornell.edu/public_domain/copyrightterm.pdf. (Last accessed 6-15-08; Academic Commons.)

Mary Minow, “Library Digitization Projects and Copyright,” 1-28-2002, http://www.llrx.com/features/digitization.htm. (Last accessed 6-15-08; Academic Commons.)

U.S. Copyright Office, Circular 92: Copyright Law of the United States and Related Laws Contained in Title 17 of the United States Code, http://www.copyright.gov/title17/

U.S. Copyright Office, Circular 22: How to Investigate the Copyright Status of a Work, http://www.copyright.gov/circs/circ22.html#caution. (Last accessed 6-15-08.)

Also of interest:Dennis S. Kariala, “Chart Showing Changes Made and the Degree of Harmonization Achieved and

Disharmonization Exacerbated by the Sonny Bono Copyright Term Extension Act (CTEA),” 5-15-02, http://homepages.law.asu.edu/~dkarjala/OpposingCopyrightExtension/legmats/- HarmonizationChartDSK.html. (Last accessed 6-15-08.)

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