Cornelius Van Vorst, ca.1620; 
Jersey City Free Public Library; Grover Cleveland Political Cartoon; 
Grover Cleveland Birthplace Historical Site Collection Peter Lee, former slave, ca.1880; 
Hoboken Historical Photographs Collection; Farm Map of Hillsboro, Somerset County, 1860; 
Historical Maps of New Jersey Collection; Bathing Beauties, 1890-1930; 
American Labor Museum/Botto House National Landmark Collection; Flag Salute, 1950; 
Seabrook Farms Collection;
Copyright Issues for Digital Collections

The Congress shall have 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

U.S. Constitution, Article I, Section 8

Copyright at its most fundamental involves ownership of information. A copyright owner has the exclusive right to make his or her copyright-protected resource available for any further use, with certain specific limitations intended to further the public good, during the term of copyright ownership.

So a fundamental question when selecting a collection, or individual resources for digitization, is Do I have the right to make these resources available digitally to the public?

This question can be answered on an individual basis for each resource, and for many resources that are of high interest, potential commercial value, or appear to have identifiable ownership, you will want to do this. However, since most libraries and archives have hundreds or thousands of resources they might make available, a nuanced rights management strategy that is practical, diligent and thus defensible is recommended. This strategy takes considerable time to develop initially but rewards the library or archive with a solid and appropriate approach to collection selection and resource availability that respects both the rights of the creator and society's need for broad access to information.

This strategy consists of six key steps:

  1. Understand copyright basics. Copyright law in the U.S. has undergone considerable revision, and the revisions are not retroactive, meaning that a work in the public domain at the time of a revision, remains in the public domain. A basic understanding of copyright is critical to develop a rights management strategy. This chapter provides some copyright basics for understanding U.S. copyright and also refers you to further resources in the bibliography at the end of the chapter.

  2. Identify resources that are clearly in the public domain. "Public domain" resources are information resources that were excluded from copyright protection in U.S. copyright law, or those resources for which the term of copyright protection has expired.

  3. Obtain permission for resources that have an identifiable copyright holder.

  4. Develop a "risk management strategy" based on a continuum of resources that range from clearly copyright protected to clearly in the public domain. Many resources will fall into a "gray area" of works that may or may not require permission to digitize. The risk assessment strategy provides guidance on which "gray" resources the institution feels can be digitized and made available in a defensible manner. A risk management strategy includes risk assessment and the institution's codified policy, practices and documentation for establishing that a "reasonably diligent" effort has been made to locate and obtain permissions from copyright holders.
    1. NJDH Interim Risk Assessment Strategy PDF File
  5. Clearly identify appropriate use of digitized resources for your users, through an open license for your users.
    1. NJDH Creative Commons License
  6. Develop and publish a copyright policy which codifies, for your organization, the ownership of the resources your organization makes digitally available, the types of resources that you will make available, including your risk management strategy for works with uncertain copyright status, and the acceptable uses for the resources that you are making available to others.
    1. NJDH Copyright Policy PDF File
1. Understand Copyright Basics Top

Copyright, or the "right to copy," began in England with the Statute of Anne, enacted in 1709, to address the needs of the Printers' Guild to maintain their monopoly for the distribution of printed resources with the advent of large scale printing.

Copyright has since codified into the laws of most countries a "creative tension" between the creator or owner of information, that is available in a tangible form, suitable for individual use or further distribution, and the user of that information, who might build upon the information or creativity in a copyright protected work to create something new that advances knowledge or art to benefit society.

In the U.S., the competing needs for a creator to exploit the fruits of his creation, and society's need to benefit from that creation, are explicitly acknowledged in Article I of the Constitution, making the balance of rights between the copyright owner and society one of the fundamental tenets of a new country. Copyright in the U.S. is encoded in Section 107 of the Copyright Act of 1976, as amended (1994) (a.k.a. Title 17, U.S. Code). It has been frequently amended over the years, in part to reflect the requirements of international treaty, since the rights of creators in other countries are explicitly recognized as deserving the same "national treatment" under copyright law afforded to creators in the United States. Amendments to the Copyright Act have reflected international and Congressional struggles to extend copyright to new types of materials (phonograms, television broadcasts, digital materials), new types of information transmission (broadcasting, the Internet) and new types of owners (performers, producers).

Some recent amendments include:

  • The Digital Millennium Copyright Act and Sonny Bono Copyright Extension Act, both in 1998, which addressed copyright in the digital era and extended the basic copyright term to 70 years beyond the life of the creator, respectively.
  • The Technology, Education and Copyright Harmonization Act (the TEACH Act) of 2002, which provided increased "educational use" access to digital resources in distance learning environments.
Copyright law has been interpreted by many court cases (e.g., Feist v. Rural Telephone (1994); Tasini v. The New York Times). Unlike copyright law and practice in some countries, copyright law in the U.S. provides guidance on the "fair use" of copyright protected information and requires case law to establish milestones of practice that can be used to shape the public's understanding of legally appropriate use of copyright-protected resources.

Copyright protects fixed works (e.g., printed, videotapes, transcribed, recorded, etc.) for a fixed amount of time. That amount of time has been changed over the years, most recently with the Sonny Bono Copyright Extension Act of 1998, which extends copyright to 70 years after the end of the year of death for the creator and 120 years from the end of the year of creation for anonymous unpublished works and works made for hire.

No filing of copyright or fixing of copyright notice is required on the work. As soon as an original work is fixed in a medium, it receives copyright protections (as mandated by international treaty--the Berne Convention, 1989).

The U.S. Copyright Office produced a report on January 31, 2006 on "orphan works," those works for which a copyright owner cannot be identified or located. The report recommends supporting the reuse of orphan works if the organization or individual can demonstrate "reasonable diligence" in attempting to locate and contact copyright holders to request permission for reuse. The study further recommends that the remedies should be restricted for to any copyright holder who proves ownership of a work declared "orphan" after a reasonably diligent search on the part of the organization using the work. Owners should be reasonably compensated except if (1) the infringement is performed without any commercial advantage and for primarily a charitable, religious, scholarly or educational purpose and (2) the infringer ceases the infringement expeditiously after receiving notice of the claim for infringement. Orphan works legislation was proposed in 2006, which would codify the recommendations of this report into law.

The primary means by which educational and research organizations and their members can make use of copyright protected materials is via the Fair Use provisions of the copyright law:

...the fair use of a copyrighted work...for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use, the factors to be considered shall include:

  1. The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit;
  2. The nature of the copyrighted work;
  3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
  4. The effect of the use upon the potential market for or value of the copyrighted work.

Fair use is purposefully vague. It essentially says, "the amount must be considered" without spelling out that "10% is OK" or "five minutes is safe" or "20 pages is allowed".

Fair use calls for a case-by-case analysis. All four tenets must be explored and weighted together in light of the total argument and in the context of the use; no one tenet automatically "sinks the ship" of justifiable Fair Use.

It is possible to license or contract away one's Fair Use rights to material. For example, a donation received by an institution with the stipulation that the material be sequestered until 10 years after the death of the donor places that material out of the reach users via Fair Use access until the ten years have expired. Another example is a web-based database subscription that prohibits the subscribing library from printing copies of articles for interlibrary loan purposes.

Fair use does not require anyone wanting to make use of copyright protected materials to request permission of the copyright holder, whether in analog or digital form.

Libraries and archives are also able to make copies of copyright protected materials, including digital copies, under Section 108 of the Copyright Act, for the purposes of preserving or replacing resources to insure long-term availability and to provide information services to patrons. There are conditions and restrictions on the copying permitted under Section 108 to insure that infringement of the copyright owner's rights does not occur. In a nutshell, the law allows for "digitization for preservation" or replacement of copyright protected resources in the lawful possession of the library or archives if (1) the library of archives has, after a reasonable effort, determined that an unused replacement cannot be obtained at a fair price; and (2) any such copy or phonorecord that is reproduced in digital format is not made available to the public in that format outside the premises of the library or archives in lawful possession of such copy.

So, if you have a collection you want to digitize, how do you know if you are able to digitize those resources and provide access to the public via the Web? There are several steps to follow:

2. Determine if the work is in the public domain Top

The copyright status of resources in the U.S. requires some research, since copyright law has moved from requiring registration, renewal and a visible copyright notice to automatic copyright as soon as a creative work is fixed in tangible form, as required by the Berne convention and U.S. law. Changes to the copyright law are not retroactive, so any resource that was out of copyright when a change occurred remains in the public domain.

A number of copyright gurus have developed charts that can help you determine the copyright status of a resource. An excellent chart, developed by Peter Hirtle, is available at the Cornell Copyright Information Center:

http://www.copyright.cornell.edu/training/Hirtle_Public_Domain.htm

A good "rule of thumb" is that anything published before 1923 is in the public domain. For unpublished works, which constitute many of the cultural heritage resources that will be made available through digital initiatives, such as NJDH, works by creators who died before 1936 are in the public domain. Anonymous unpublished works are in the public domain if created before 1886.

3. Obtain Permission Top

If the work is not in the public domain, and the creator or copyright holder can be identified, you will want to obtain permission to digitize or a deed of gift providing the resources to your organization to further distribute as you choose.

There are several issues with seeking permission:

  • Copyright holders are difficult to find, particularly if the creator of a work is deceased and the heirs must be located. Registration is no longer required and older registration and copyright renewal records may not be available online. Agreements between authors and publishers may be lost, and even if the author and publisher can be located, it is very possible that neither party knows who retains the copyright for a published work.
  • Even when copyright holders can be identified, contacting them and receiving a response in a reasonable time frame can be difficult. Multiple letters may be required before a response is received, and then the request may be denied. Carole George presented the results of a study exploring the feasibility of seeking copyright permissions at the 2001 ALA conference at which she reported that it took 3 months to hear back from copyright holders, with only 22% of her requests being granted.
  • Given the difficulty of locating and corresponding with copyright holders, it is really critical that the permissions request be carefully written with a well-crafted deed of gift or permission form included.

Some important "rules of thumb" for the permissions request letter:

  • Be very clear about the resource to be digitized. Provide a full citation, if possible, or otherwise describe the work so that the identity of the work is unambiguous;
  • Describe the context of use-current and potential. Describe the digital project or collection that will include the resource. If this is an existing project, provide a link to the website for the project or collection. Copyright holders are most likely to grant permission to copy and distribute resources if the use is noncommercial and educational. Being clear about the nature and context of use can increase the likelihood that your organization receives the permissions it is requesting;
  • Provide a deed of gift or permission form that the copyright holder can complete, sign and return.
  • Provide a self addressed, stamped envelope as well as multiple ways for the copyright holder to contact you if (s)he has any questions.

Basic "rules of thumb" for a deed of gift or permission form to be signed by the rights holder:

  • Be very clear about the resource to be digitized. Provide a full citation, if possible, or otherwise describe the work so that the identity of the work is unambiguous.
  • Include all current or future reuse of the resource in the deed of gift or permission form. Do not use limiting terminology that restricts a resource to a current technology (e.g., web access) or current use (e.g., for use in the online exhibit, "The Italians of Jersey City"). While you want to explain the current context of use in your permissions request letter, in order to obtain permanent rights to disseminate a copyrighted work, you want to be very inclusive (e.g., "the right to make available to anyone in analog or digital form...") and not tie the hands of future archivists and librarians for continuing to make the resource available.
  • Ask the copyright holder to assert that he or she is the owner of copyright and is legally able to grant the right to digitally copy and disseminate the resource in question. You may want to ask the copyright holder to indemnify the organization against any legal remedies for copyright infringement, if an accusation of infringement is successfully pursued. This indemnification is overkill in most cases, unless the resource has clear commercial value, or the organization has paid a fee to purchase duplication and distribution rights.
  • Be clear about the continuing rights of the copyright holder to reuse the resource. You may have a better chance of securing permissions if you are requesting the nonexclusive right to digitize and disseminate a resource, so that the copyright holder can continue to exercise his or her right to copy and distribute the resource.
  • Depending on the nature of the resource, you may want to offer attribution to the donor or copyright holder for the resource. Most copyright holders want attribution, and it is sound practice to provide attribution, both in metadata and in the web display of the resource, to provide context and guidance for citing the resource for users and to maintain records of copyright ownership for ongoing rights management of the resource. Some copyright holders will not want attribution, so you will probably want to offer this as a "check off" option on the deed or form.
4. Develop a "risk management strategy" Top

There will be many resources, particularly older, unpublished materials, that have no clear copyright status. A consensus is emerging that orphan works with no clear exploitable commercial value should be made available to the public within U.S. copyright law, but these "orphan works" recommendations have not yet been codified into law.

Your next step is to develop a risk assessment strategy to identify the types of resources that the organization may choose to digitize, based upon a hierarchy or continuum from the clearly copyright restricted to resources that are clearly in the public domain. Your risk assessment strategy should result in a risk management strategy that will also include your "reasonably diligent" attempts to identify and contact the "creator" or "copyright owner."

The NJDH Interim Risk Assessment Strategy can provide guidance in developing your strategy.

A written strategy for identifying and contacting potential copyright holders, as well as a documented audit trail (database of attempts or metadata with associated correspondence) combined with the risk assessment strategy completes the organization's risk management strategy. For example, NJDH metadata includes a provenance event that can be used to document attempts to locate and contact copyright holder, with the ability to associate digital copies of correspondence, in Adobe PDF® with each event. A complete risk management strategy, utilizing the event-based metadata schema in NJDH, will be made available in 2006-7.

A sample hierarchy of "ability to digitize"

  1. Is the work restricted by license or donor agreement?
    1. If yes, can permission be sought to change the license or agreement?
      1. If no, it cannot be digitized.
  2. If not restricted, is the work in the public domain?
    1. If yes, it can be digitized and provided to the public.
  3. Is the resource a federal document?
    1. Federal government records and publications are not covered by copyright. There are some exceptions for reports prepared by third parties, but official bulletins, records, and documents are generally safe.
    2. Factual state and local documents are probably acceptable, but it is a good idea to obtain permission from the municipality in question. Older state and local documents are safer, because current state and local documents may have privacy restrictions that prevent widespread digital dissemination.
  4. If not covered by Fair Use, can the copyright holder be identified?
    1. If not, can a case for preservation or only-copy be made, (to conform to the library and archive limited exceptions in Section 108). NB: Digitizing under Section 108 currently restricts access to the physical location of the library and archive, so these digitized resources cannot be provided to NJDH.
  5. If the copyright holder can be identified, will the copyright holder grant permission?
    1. If yes, it can be digitized.
    2. If not, it cannot be digitized.
  6. If the copyright holder cannot be identified, did the library or archive make a reasonable, auditable effort to identify the copyright holder?
    1. If yes, the organization may be able to provide access to the resource as an orphan work.
5. Identify appropriate use of your digitized resources for your potential users Top

Although you may not be actively restricting access to resources, or even requiring users to "opt in" to restrictions on use of resources by agreeing to the terms or conditions of use through a check box or other pre-condition to access, you can inform your users of any restrictions or limits to use through an "open license.' You can create an open license that identifies appropriate use of digitized resources in your collection or apply an open license designed by Creative Commons, a nonprofit organization that provides open source licenses with legally worded terms and conditions, available in multiple languages, with multiple means for display, including via the web or in Open Digital Rights Language (ODRL) metadata. NJDH offers resources for non-commercial, scholarly, educational use, under Creative Commons license 2.5 which offers works for re-use (copy, distribute, display, perform and make derivative works) for noncommercial purposes only, with attribution, although at the request of the resource owning organization, the Creative Commons Attribution-Noncommercial no derivatives license may also be applied.

6. Develop and implement a copyright policy Top

A copyright policy will identify ownership and appropriate use of the resources made available by your organization-primary source materials that the organization digitizes and makes available and complementary resources, such as web pages, cataloging information, finding aids, curatorial notes, etc. that support the collection and form part of the website that host the collection. The copyright policy will identify the principal entities (organization's staff, content creators, content users) how the copyright policy impacts their use of the information governed by the policy.

NJDH Copyright Policy

References Top

Copyright Society of the USA. Copyright Kids. http://www.copyrightkids.org/ [Includes sample permission letters for requesting permission to use copyright resources for school assignments and projects]

Library of Congress. About Section 108. http://www.loc.gov/section108/about.html

Hirtle, Peter. Copyright Term and the Public Domain in the United States, 1 January 2006. http://www.copyright.cornell.edu/training/Hirtle_Public_Domain.htm

InfoPeople. Copyright Permission Agreement [sample] http://www.infopeople.org/training/past/2005/dig-copyright/CDLPermission.doc

Minow, Mary. Library Digitization Projects: U.S. Copyrighted Works that have Expired into the Public Domain http://www.librarylaw.com/DigitizationTable.htm

Society of American Archivists. A Guide to Deeds of Gift. http://www.archivists.org/publications/deed_of_gift.asp

US Copyright Office. http://www.loc.gov/copyright

U.S. Copyright Office. Orphan Works. http://www.copyright.gov/orphan/

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