If it is difficult for you to find a rights holder after employing due diligence, it ought to be equally difficult for a claimant to show that a copyright had been secured.
—Library of Congress1
Before initiating a digitization project, it is important to ensure that the library has the right to digitize the material.2 Some materials may be protected by copyright while others are not and are part of the public domain. Original documents donated to your library may have included different permissions and restrictions on use. Some material may have been in the collection for so long that there is no longer any documentation regarding permissions on usage. Do your current donation forms include language regarding copyright, permissions, and digitization? Perceived legal problems within the scope of copyright law can keep some libraries from even attempting a project. There are helpful sources and tools you can use to get a better understanding of copyright law and how it affects your digitization project. The following gives an overview of copyright law, important exceptions to copyright law—such as the doctrine of fair use and public domain materials—along with some tips on managing copyright affairs within a digitization project.
Copyright law in the United States protects an author’s original expression of creative work so that they are able to financially benefit from it for a limited period of time. After such period of time has ended the work is no longer covered by copyright and falls into the public domain. The foundations of U.S. copyright law are based on British law, as well as on the first article of the U.S. Constitution:3
The Congress shall have Power . . . to promote the Progress of Science and useful Arts by securing for limited Times to Authors and Inventors exclusive Right to their respective Writings and Discoveries.4
Current copyright law protects the following kinds of works so long as they are “fixed in any tangible medium of expression.”5
▪ Literary works
▪ Musical works (including accompanying words)
▪ Dramatic works (including accompanying music)
▪ Pantomimes and choreographic works
▪ Pictorial, graphic, and sculptural works
▪ Motion pictures and other audiovisual works
▪ Sound recordings
▪ Architectural works6
Copyright does not protect ideas, facts, theories, titles, brief phrases, names, or processes. Any fixed expression of an idea, theory, or process can be copyrighted; for instance, a painting or a scientific article about the Big Bang theory has copyright protection. The actual theory is not protected by copyright. It is also helpful to know that copyright does not protect works created by U.S. federal government agencies.
It is important to note that copyright protects a work as soon as it is created. No notice of any kind, or formal registration with the U.S. Copyright Office (USCO) is required for a work to be copyrighted. However, formal registration carries benefits that assist an author in court if they decide to sue another party for copyright infringement. Registration with the USCO establishes prima facie evidence to a court that the author possesses copyright in the work. It also allows the author to sue for statutory damages rather than actual damages in an infringement lawsuit; statutory damages can range from $750 to $150,000 per infringed work.7
Consider the federal court case Capitol Records, Inc. v. Thomas-Rasset, which lasted from 2007 until 2012. Jammie Thomas-Rasset was found guilty of copyright infringement for illegally downloading and file-sharing twenty-four popular songs. The plaintiffs, because these twenty-four songs were registered with the U.S. Copyright Office in their name, were awarded statutory damages—$9,250 per song—rather than actual damages which could have been much smaller; for example, think of the cost of an iTunes download or an entire CD at a store.8
Authors, artists, musicians, choreographers, and other creators (hereby referred to as “authors” in a general sense) have the following six exclusive rights in their copyrighted works:
▪ Reproduce or copy the work.
▪ Create derivative works based on the work (e.g., a movie based on a book)
▪ Distribute copies of the work by selling it, lending it, renting it, or otherwise transferring it.
▪ Publicly performing the work.
▪ Publicly displaying the work.
▪ Digitally transmitting the work as a sound recording.9
These rights are not without exceptions. In order to maintain the free flow of creativity and ideas in a democratic society, as well as to ensure that copyright does not impinge upon others’ freedom of speech, the copyright law contains a handful of exceptions.10
The six exclusive rights of copyright owners are a bundle of rights that can be transferred. While it may seem obvious that the creator of a copyrightable work is the rights holder, the reality is that creators may transfer some or all of their rights to others. For instance, an author may give an exclusive license to his or her publisher to copy and distribute their book, but the author retains all other rights. An employee taking photos or creating other works in the course of her job may transfer all of her rights according to her employment policies or contracts (also known as work for hire). There may be more than one copyright holder in some works; a book may have two authors or a work of art may have more than one artist assisting in its creation. Another example of this manifests itself within sound and video recordings. There can be numerous copyright owners in either medium, which can make the permissions process complex.11
Donors may wish to give you all kinds of materials for a potential digitization project such as photographs, scrapbooks, recorded interviews, or performances. Your library may also wish to embark on an oral history project. In terms of those materials which are still covered by copyright, who owns the rights in these works?
Despite the myth that subjects in a photo have the copyright to the work, it is usually the one who takes the photo who owns it. Another copyright myth around photographs is that if the library owns the physical photograph then it owns the copyright; this is definitely not the truth any more than it is for books or other materials in one’s collection. In professionally taken photos or portraits, the photographer or the studio owns the copyright. In personal photographs, whoever took the photo owns the copyright.12
If a release form was not signed, the interviewee typically owns the copyright in a recorded interview. The interviewer may have copyright in his or her recorded questions. This has implications for oral history projects in that a library will want to have the interviewee sign a form to transfer the appropriate rights for recordings to be available on the library’s website.13
Let’s say that a donor wanted to give you a collection of recordings featuring the local community orchestra or high school band. Copyright and music recordings can be very complex. This is because there can be multiple rights holders in a recording; the composition being recorded as well as the recording of the performance both enjoy their own respective copyright protections.14 The composer of the works performed, recording technician, performers, and any sponsoring institutions (such as a high school) may share copyright in the recording to some degree.15 Sometimes licenses, contracts, or other agreements may transfer copyright in the recording to an individual, one business, or a single institution. If this is the case then locating the rights holder of the sound recording will not be as difficult; however, you will also need to locate the composer for permission.16
As with music, video materials can have multiple rights holders, and they are even more complex in terms of copyright. Perhaps a donor approaches you with a collection of VHS tapes of a high school’s annual variety shows from the late 1980s and early 1990s. These variety shows likely contain copyrighted material such as sound recordings, performances of music, drama, and so on. On top of this would be original copyrighted works by students such as skits, comedy sketches, poetry, or their own musical compositions. One might need to seek permission to digitize the tape from a variety of rights holders.17 Because of such complexities, tread very cautiously when considering whether or not to digitize such videos.
A donor agreement, or a deed of gift, is an agreement between the library and the donor of a collection as to how said collection will be used by the library and by patrons. It is a legal agreement between the two parties and can transfer certain legal rights to the library when it acquires the collection.18 This is an important step to take with a donor because you will want to negotiate the right to make the collection available for use by the public as well as to digitize it. A deed of gift addresses how users will be able to access and use the collection as well as working out with the donor which parts of the collection will be kept private or eliminated from the collection based on your collection development policies.19 It will also assist greatly if the donor is the copyright holder of the materials that they wish to donate, so that you may ask them to transfer rights needed in order to digitize the collection and make the items publicly available.
For examples of how donor agreements work with a library digitization project, Curt Witcher, genealogy center manager of the Allen County Public Library (ACPL) in Fort Wayne, Indiana, provides some insight in an interview. The ACPL hosts the Allen County Community Album digital project. Witcher states that the ACPL uses a donor agreement which asks donors to sign an agreement giving them “perpetual, non-exclusive rights to present this material on our website.”20 Most of the time, donors have had no problems with this agreement and are happy to sign it. The only exception, Witcher stated, was a collection of photographs taken by a local theatre director. This particular donor did not want the library to make the items available to the public in any manner. ACPL did not accept the donor’s collection because of these extreme restrictions on accessing the collection.21
For works created after 1978, copyright in the United States lasts for the life of the author plus seventy (70) years after their death.22 In the case of works made for hire after 1978 copyright lasts either ninety-five (95) years after publication or 120 years after its creation.23 If the work is unpublished and created after 1978 by an anonymous author, pseudonymous author, or it is not known whether they have died, the copyright lasts 120 years after the date of creation.24 When copyright expires in a work, it becomes part of the public domain.
In addition to ideas, facts, theories, titles, brief phrases, names, processes, and works created by the U.S. federal government, the public domain contains materials that are no longer protected by copyright law. In the United States, items published prior to 1923 are in the public domain. The year 1923 is an important one to remember because of this. Any items, with the very large exception of sound recordings, published before this year can be digitized without the need for permission.25
Materials that have not been published have a longer duration of copyright. Any unpublished work, with the exception of sound recordings, created after 1895 is still protected by copyright. Unpublished works created by an author who died prior to 1945 are in the public domain. Works made for hire that were created prior to 1895 are also in the public domain.26
There is a grey area in terms of copyright duration for works published in between 1923 and 1977. When these works were created, it was necessary for them to be registered with the Copyright Office in order for them to be protected by copyright law, and the copyrights could also be renewed. If a work that you would like to digitize falls into one of these two categories then it could be in the public domain: (1) work was published with notice in between 1923 and 1963 and not renewed; or (2) work was published without notice in between 1923 and 1977.27 It is important to look through the U.S. Copyright Office’s Catalog of Copyright Entries for verification on whether the work was renewed or even registered through the Copyright Office. Even with such verification on a particular item, it is prudent to consult with an attorney who specializes in intellectual property law and to confirm with the Copyright Office before digitizing such a work without permission. In most cases an attorney and the Copyright Office will charge for research and consultation but it may likely be worth it in case something was amiss.
With respect to library digitization projects, the doctrine of fair use is likely the most important exception to the six exclusive rights of copyright holders; it is also the most misunderstood one. Fair use allows for using copyrighted material for the purposes of “criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research.”28 There are four factors within the statutory language of fair use that judges use to determine whether a use is fair in an infringement lawsuit:
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(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.
The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.29
Notice that there are no percentages, number of pages, or amounts of a copyrighted work mentioned within these four factors. There are no amounts given in the rest of the statute either. Many librarians and other educators have conflated the “Agreement on Guidelines for Classroom Copying in Not-For-Profit Educational Institutions with Respect to Books and Periodicals,” “Guidelines with Respect to Music,” and various other fair use guidelines with the actual statutory language of fair use. These guidelines do prescribe amounts of copyrighted works that would be considered fair uses (e.g., 10 percent of a work of prose). Such amounts were agreed upon and set into place by publisher groups, authors, educators, as well as members of Congress in 1976. However, it is important to remember that these guidelines are not actual law. These guidelines, written in the late 1970s, also do not address digitization projects.30
The language of the actual statute can indeed be considered vague. While this can be confusing due to lack of bright line rules in how to apply fair use to a situation, it also allows for flexibility. Outside of the “Agreement on Guidelines for Classroom Copying in Not-For-Profit Educational Institutions” there are other helpful resources to assist librarians in applying fair use for a potential digitization project. Described below are two authoritative sets of tools that were either created or spearheaded by copyright experts—often with the expertise and experiences of librarians working with fair use issues on a day-to-day basis.
The first tool, Fair Use Checklist, was originally created in 1998 by copyright experts Kenneth Crews and Dwayne Butler. It assists potential fair users with coming to their own conclusions about their use of copyrighted material. The checklist is arranged into four sections, which is important for helping one to remember the four factors of fair use: (1) purpose (of use); (2) nature (of copyrighted work being used); (3) amount (of copyrighted work used); and (4) effect (on market for copyrighted work). Each section then has a checklist of behaviors that are either in favor of the particular factor or oppose it. One can then balance out the positives and negatives to determine whether or not a use is fair. Using this checklist should be saved as potential evidence for a fair use defense if an institution is sued for infringement. The introduction and checklist is quoted here:
This checklist is provided as a tool to assist you when undertaking a fair use analysis. The four factors listed in the Copyright Statute are only guidelines for making a determination as to whether a use is fair. Each factor should be given careful consideration in analyzing any specific use. There is no magic formula; an arithmetic approach to the application of the four factors should not be used. Depending on the specific facts of a case, it is possible that even if three of the factors would tend to favor a fair use finding, the fourth factor may be the most important one in that particular case, leading to a conclusion that the use may not be considered fair.
FIGURE 2.1. Fair Use Checklist by Kenneth Crews (formerly of Columbia University) and Dwayne K. Butler (University of Louisville)
FAIR USE CHECKLIST
Copyright Advisory Office, Columbia University Libraries
Kenneth D. Crews, Director
NAME:
INSTITUTION:
PROJECT:
DATE:
PREPARED BY:
PURPOSE
FAVORING FAIR USE
☐ Teaching (including multiple copies for classroom use)
☐ Research
☐ Scholarship
☐ Nonprofit educational institution
☐ Criticism
☐ Comment
☐ News reporting
☐ Transformative or productive use (changes the work for new utility)
☐ Restricted access (to students or other appropriate group)
☐ Parody
OPPOSING FAIR USE
☐ Commercial activity
☐ Profiting from the use
☐ Entertainment
☐ Bad-faith behavior
☐ Denying credit to original author
NATURE
FAVORING FAIR USE
☐ Published work
☐ Factual or nonfiction based
☐ Important to favored educational objectives
OPPOSING FAIR USE
☐ Unpublished work
☐ Highly creative work (art, music, novels, films, plays)
☐ Fiction
AMOUNT
FAVORING FAIR USE
☐ Small quantity
☐ Portion used is not central or significant to entire work
☐ Amount is appropriate for favored educational purpose
OPPOSING FAIR USE
☐ Large portion or whole work used
☐ Portion used is central to or “heart of the to work”
EFFECT
FAVORING FAIR USE
☐ User owns lawfully purchased or acquired copy of original work
☐ One or few copies made
☐ No significant effect on the market or potential market for copyrighted work
☐ No similar product marketed by the copyright holder
☐ Lack of licensing mechanism
OPPOSING FAIR USE
☐ Could replace sale of copyrighted work
☐ Significantly impairs market or potential market for copyrighted work or derivative
☐ Reasonably available licensing mechanism for use of the copyrighted work
☐ Affordable permission available for using work
☐ Numerous copies made
☐ You made it accessible on the Web or in other public forum
☐ Repeated or long-term use
Used under a Creative Commons BY license from the Copyright Advisory Office of Columbia University, Kenneth D. Crews, director.
Most recent revision: 051408
The second set of tools to consider for fairly using materials for your digitization project are codes or statements of best practices in fair use. These tools were spearheaded by Pat Aufderheide, university professor, School of Communication at American University, and Peter Jaszi, professor of law and faculty director of the Glushko-Samuelson Intellectual Property Clinic at American University. The movement started in 2005 with the development of the Documentary Filmmakers Statement of Best Practices in Fair Use.31 Such codes or statements of best practices in fair use are developed by user groups of copyrighted materials along with legal consultants to document common fair use behaviors. There are now a large number of disciplines and user groups who have crafted such documents, some of which can be used by public libraries to assist them in making fair use determinations when the need arises. It is still important to remember that, like the 1976 Guidelines, these best practices should not be viewed as the limit on what can be fairly used.32
The Code of Best Practices in Fair Use for Academic and Research Libraries was crafted by and for academic and research librarians in consultation with legal experts. These librarians agreed on eight common situations—or principles—where fair use needs to be applied in their day-to-day work or major projects. Principle four, “Creating Digital Collections of Archival and Special Collections Materials,” would be most applicable to a public library’s potential digitization project. With digitizing any special collection, it’s important to refer to the deed of gift or any other related agreement to make sure that any donor restrictions are applicable.33 Quoted below is the principle along with limitations and enhancements:
Principle
It is fair use to create digital versions of a library’s special collections and archives and to make these versions electronically accessible in appropriate contexts.
Limitations
▪ Providing access to published works that are available in unused copies on the commercial market at reasonable prices should be undertaken only with careful consideration, if at all. To the extent that the copy of such a work in a particular collection is unique . . . access to unique aspects of the copy will be supportable under fair use. The presence of non-unique copies in a special collection can be indicated by descriptive entries without implicating copyright.
▪ Where digitized special collections are posted online, reasonable steps should be taken to limit access to material likely to contain damaging or sensitive private information.
▪ Full attribution, in a form satisfactory to scholars in the field, should be provided for all special collection items made available online, to the extent it is reasonably possible to do so.
Enhancements
▪ The fair use case will be even stronger where items to be digitized consist largely of works, such as personal photographs, correspondence, or ephemera, whose owners are not exploiting the material commercially and likely could not be located to seek permission for new uses.
▪ Libraries should consider taking technological steps, reasonable in light of both the nature of the material and of institutional capabilities, to prevent downloading of digital files by users, or else limit the quality of files to what is appropriate to the use.
▪ Libraries should also provide copyright owners with a simple tool for registering objections to online use, and respond to such objections promptly.
▪ Subject to the considerations outlined above, a special collection should be digitized in its entirety, and presented as a cohesive collection whenever possible.
▪ Adding criticism, commentary, rich metadata, and other additional value and context to the collection will strengthen the fair use case.
▪ The fair use case will be stronger when the availability of the material is appropriately publicized to scholars in the field and other persons likely to be especially interested.34
Both the Fair Use Checklist and the Code of Best Practices can assist a public library in coming to its own conclusions about how fair use can apply to a digitization project, as well as crafting a starting point for copyright policy in digitization projects. It is important that a library evaluate a project on all four factors of fair use and not make an assumption that just because it may be a nonprofit educational institution that fair use will always apply to using copyrighted works. One needs to apply both sets of tools to each individual new project. Each new project that has the potential to employ fair use with respect to using copyrighted materials needs to be reevalluated de novo since the four factors of fair use are sensitive to specific situations.35
17 U.S.C. Sec. 108 is the “libraries and archives exception” within American copyright law. It’s important to note, however, that this section deals more with preservation than with making library materials available in a digitization project. A fair amount of this statute is out of date with respect to current technologies and ways that copyrighted materials are distributed. However, the last portion of the statute—17 U.S.C. Sec. 108(h)—is the most relevant to a digitization project:
(h) (1) For purposes of this section, during the last 20 years of any term of copyright of a published work, a library or archives, including a nonprofit educational institution that functions as such, may reproduce, distribute, display, or perform in facsimile or digital form a copy or phonorecord of such work, or portions thereof, for purposes of preservation, scholarship, or research, if such library or archives has first determined, on the basis of a reasonable investigation, that none of the conditions set forth in subparagraphs (A), (B), and (C) of paragraph (2) apply.
(2) No reproduction, distribution, display, or performance is authorized under this subsection if—
(A) the work is subject to normal commercial exploitation;
(B) a copy or phonorecord of the work can be obtained at a reasonable price; or
(C) the copyright owner or its agent provides notice pursuant to regulations promulgated by the Register of Copyrights that either of the conditions set forth in subparagraphs (A) and (B) applies.
(3) The exemption provided in this subsection does not apply to any subsequent uses by users other than such library or archives.36
Using this exception only applies to published works as defined in 17 U.S.C. Sec. 101. It would be incumbent upon the library to carefully document its steps if one wished to use this part of the libraries and archives exception. Such documentation should include the following facts:
(1) the work was indeed published;
(2) it is in the last 20 years of its copyright protection;
(3) it is no longer commercially available;
(4) it is not able to be purchased at a reasonable price; and
(5) the copyright holder has not indicated with the Copyright Office that the item is commercially available.
There will be times when fair use, or other exceptions to the rights of copyright holders, may not be the best thing to employ as a defense to use a copyrighted work without permission in a digitization project. At this point, one may have used a fair use checklist, and looked at guidelines or best practices, and it becomes clear that fair use would not be an option. This is when it becomes important to know the process of asking permission of rights holders in order to use an item in a digitization project.
Upon the realization that permission is needed to use a copyrighted item in a digitization project, it is important to obtain it well in advance of when the item will need to be used. Be sure to communicate with rights holders in writing so that you can keep documentation in case of any potential conflicts or miscommunications. It is also important to document your process of locating the rights holder—from phone calls to e-mails and letters sent via postal service.
When working with items to digitize, you will likely have unpublished items as well as published ones. For example, your library may wish to digitize high school yearbooks, which qualify as published works. Members of the respective communities you serve may wish to have you digitize their own personal photographs to document the history of your locale. Such photos, diaries, letters, and other related materials are examples of unpublished works. Lastly, donors may also wish to donate sound or video recordings. It’s important to know who owns the copyright in these items so that you can contact the appropriate rights holders.
It is generally easier to find the copyright holder in items that are published rather than those that are not. In either case, to begin the process to locate rights holders, have a look at the item for any company names, copyright notices, names of photographers, artists, authors, composers, or logos. From there you will have some information to begin your search. Try searching the Internet, newspaper searches, or other historical databases to help you track down the original copyright owner and his or her heirs. Make phone calls to any companies you may see with respect to the original rights holder to make sure that you have the correct rights holder. Note that there will be times when you will not be able to locate a rights holder; sometimes copyright can be transferred to companies or multiple heirs without any easily traceable documentation. Other times a search may not turn up a verified copyright owner—more on this later.37 There are several sources that can help you verify rights holders on items you wish to digitize:
Catalog of Copyright Entries (http://archive.org/details/copyrightrecords): When researching the rights holder for an item created prior to 1978, one can look at digitized copies of the Catalog of Copyright Entries. Currently the Internet Archive has volumes going back to 1891. You’ll need to use other search engines in order to possibly locate contact information for the rights holder.
ASCAP and BMI (https://www.ascap.com/Home/ace-title-search/index.aspx) & (http://repertoire.bmi.com/artistSearch.asp): These two organizations are related to composers and musicians. Both are collective licensing organizations where you can contact one or the other to seek permission—or a license—to use a musical score. The organization then charges you a fee to use the work and forwards the royalties on to the author. You can use the links above to search for a rights holder related to a score. If you found the work that you’d like to use, then you can make a request to license the work from the organization. It is important to note that these organizations do not handle rights for sound recordings of a musical work, however.
Recording Industry Association of America and Harry Fox Agency: Sound recordings of musical works can become complex when investigating rights holders. Oftentimes there are two sets of copyright holders you need to keep in mind with sound recordings: (1) the rights holder of the musical score; and (2) the rights holder of the sound recording. The two organizations listed above can be helpful for locating the rights holders of a sound recording.
Copyright Clearance Center (www.copyright.com): The Copyright Clearance Center is another collective licensing organization that works mainly with book and journal article content. If the copyright holder works with CCC it will be relatively easy to request a license to use the work.
Artists’ Rights Society (ARS) and Visual Artists and Galleries Association (VAGA): These two organizations are the main collective licensing organizations for visual artists.
So you’ve found the rights holder after a thorough search, documented your steps in finding them, and are ready to ask permission to use an item in your digitization project. How do you proceed? First, clearly convey in writing the title of the work, how much of the work you want to use, and how and why you want to use the item. Rights holders will usually only give you permission for the use that you explicitly state in writing.38 Be sure to save copies of letters, e-mails, or copies of notes taken in your documentation. For easy reference and preservation, it helps to digitize such communications and save them on a server that is backed up very frequently. Verbiage for a permission request form letter should include (1) your name and organization, (2) the name of the rights holder, (3) complete citation of the work, (4) how you want to use the item and for what purpose, and (5) asking the party to forward you to the appropriate people if they are not able to grant permission.39
Sometimes, after all of the work you have put into finding the rights holder for an item you wish to digitize, you may come up against roadblocks. For instance, you might run into the situation where you cannot determine who the copyright owner of a work is, or the copyright owner never responds to your permission requests. The copyright owner may also decline to give you permission, or will charge you an unreasonable fee to use the item.40
In the case of the latter, if you still wish to use the item in a digitization project, you may wish to scale down your desired use of it (e.g., limiting use to the network in your physical location, or not putting the entire item online). From there you may be able to negotiate with the rights holder so that you can secure permission to use the item at a more reasonable price. Some rights holders will negotiate and others will not. If you still cannot get permission, you may need to substitute another item for it or not use the item in your project.41
In the case of being unable to locate a rights holder, or the rights holder has not responded to your queries, you have happened upon what is known as an “orphan work.” This means that the item is still under copyright, but the rights holders cannot be found. This is an issue that has hounded libraries and memory institutions for years; Congress and the U.S. Copyright Office have made attempts to study the issue and to create legislation, but none so far has been passed.42
When confronted with orphan works in a collection that you would like to digitize, you do have some options. If you initially conducted a fair use analysis on the work, you may wish to revisit it. If a rights holder was not found for the work then there may not be a large harm to the market for the item. A new fair use analysis may be different from the previous one based on the fact that you are dealing with an orphan work.43
It is also important to consult resources about orphan works to get a sense of best practices when it comes to including these materials in your library. There are two documents written by and for librarians and archivists that can provide such guidance on using orphan works: the Society of American Archivists’ Orphan Works: Statement of Best Practices (2009) and the UC Berkeley and American University’s Statement of Best Practices in Fair Use of Collections Containing Orphan Works for Libraries, Archives, and Other Memory Institutions (2014).44 The Orphan Works best practices statement outlines “reasonable efforts” in detail to find rights holders of unpublished works; but its authors clearly state the usefulness of their document to locating rights holders of published works as well. It contains very detailed information on locating rights holders through collective licensing organizations, professional author organizations, and publishers. Additionally, this document contains a detailed bibliography of other sources to consult with respect to using orphan works.45
The Statement of Best Practices applies fair use to orphan works, and gives guidance on the following aspects of such collections: “1. Acquisition, 2. Clearances, 3. Selective Exclusions from Access, 4. Curation, 5. Conditions on Availability, 6. Dialogue with the Public, 7. Providing Copies to Members of the Public.”46 The “Acquisitions” portion describes the importance of donor agreements and appropriate description of rights within metadata. Upon acquiring a collection that may be digitized by your library, it is important to reach an agreement with a donor to have permission to make it available and to digitize it.47 The “Clearances” portion covers seeking permission from a rights holder and the importance of documenting such a search.48 “Selective Exclusions from Access” discusses the importance of potentially needing to exclude some works for reasons of protecting personal privacy as well as “third-party” materials that are likely copyrighted by others.49 “Conditions on Availability” covers the basics of user policies with respect to orphan works in a digitized collection.50 “Dialogue with the Public” states the importance of why a particular orphan work is made available as well as the prominent availability of a way for users to provide feedback on items in the collection. This is a good faith measure that provides a channel for a rights holder to come forward and claim an orphan work. Such a means of communication for a potential rights holder to contact the library about an orphan work does not necessarily mean that the library will immediately remove the item from a digital collection.51 “Providing Copies to Members of the Public” discusses the importance of making users aware of the fact that the orphan work they wish to use may still be covered under copyright and that they should not infringe copyright with their uses.52
End-user policies are also important to establish since they communicate important information on how patrons should use your digitized collection. They address copyright information on the contents of the collection, notifying users of their legal responsibilities in using works, and the ethics of how to properly cite digitized materials. To see a few examples, have a look at the “Legal” and “The Cabinet of American Illustration: Rights and Restrictions Information” pages of the Library of Congress.53 The “Legal” page addresses the legal user policies for all collections such as copyright and privacy and publicity rights, as well as user privacy when using the site. The “Cabinet of American Illustration: Rights and Restrictions Information” page is specific to its respective digital collection. It briefly describes what is in the collection, reproduction permissions, publication in outside sources, as well as how to cite an item from the collection.
Here are some examples of sample language from the Georgetown County Public Library, Flora Public Library, and the Banning District Library:
1. Images from the Georgetown County Public Library (South Carolina): The link at the end of the following quote will show you a “Rights” field in the description. “The images in this collection are part of a private collection. All rights are reserved and the images may not be reproduced. For more information, contact the Georgetown Library at 405 Cleland Street, Georgetown SC 29440. (www.gcdigital.org/cdm/compoundobject/collection/p15077coll18/id/26/rec/1).”
2. Here is some language from the Flora Public Library in Illinois: “Charles and Katie Overstreet have generously allowed the Flora Public Library to borrow their collection for digitization. To order reproductions or inquire about permissions, contact Flora Public Library, 216 North Main Street, Flora, IL, 62839-1510 (618-662-6553). Please cite item title and collection name.” To see this used in the description of an item please see: www.idaillinois.org/cdm/compoundobject/collection/fpl/id/350/rec/1.
3. The Banning District Library has a digitized collection of historical local photographs. Here is the end-user policy language that they use in the description of an item: “Copyright status unknown. Some materials in these collections may be protected by the U.S. Copyright Law (Title 17, U.S.C.). In addition, the reproduction of some materials may be restricted by terms of gift or purchase agreements, donor restrictions, privacy and publicity rights, licensing and trademarks. Transmission or reproduction of materials protected by copyright beyond that allowed by fair use requires the written permission of the copyright owners. Works not in the public domain cannot be commercially exploited without permission of the copyright owner. Responsibility for any use rests exclusively with the user.” Here is a link to an example: www.oac.cdlib.org/ark:/13030/c8pz59hq/?brand=oac4.
This is probably the most frequently asked question regarding placing digitized materials on a library’s website. What does the library do if it receives a take-down notice or other complaint from an alleged copyright owner? Both the Statement of Best Practices in Fair Use of Orphan Works for Libraries and Archives along with the Code of Best Practices in Fair Use for Academic and Research Libraries address only part of this question. Both advocate for an obvious communication channel for copyright owners to register an objection to placing their work online.54 The Orphan Works statement goes slightly further to state that an institution should not immediately take down the offending material, but should keep communicating with the copyright owner in question.55
CASE STUDY
DUE DILIGENCES AT THE SAN FRANCISCO PUBLIC LIBRARY
The Daniel E. Koshland San Francisco History Center began in 1964 as the California Collection at the San Francisco Public Library (SFPL).56 The collection of primary and secondary sources on the history of the city is located in the Main Library building. The SFPL has 27 branches and in 2013–2014 had well over six million total visits and a budget of $96.9 million.57 When the history collection started acquiring material the pieces were not logged and paperwork documenting donation or acquisition was inconsistent. This changed in 1996 when the library gained a city archivist who implemented changes to maintain records for new materials. The History Center currently has over two million photographs and provides access to digitized versions, which has required some research into the copyright status of some items.
Christina Moretta, photo curator at the San Francisco History Center, has experience with determining copyright status. When looking at the photograph collection for possible images to include in the library’s digital collection, Moretta looks for materials which are obviously in the public domain due to age. For materials which may be under copyright she searches for any donor information which transferred rights to the library. This could be a letter, donation form, or notes made by a previous librarian. If there is no paperwork associated she looks to the image for clues; a building which can be used to date the photograph, the mark of a studio, or notes on the image such as names or dates.
From studio information she can check business directories to determine the business timeline and owners. With a name she can search on Ancestry.com for possible heirs. She will contact individuals and start corresponding with these people to document the materials and gain permission to place them online. This effort can take days or weeks. Moretta tries to emulate the efforts of a researcher and spends a reasonable amount of time to determine if the work is an orphan. Throughout this process she keeps a record of her efforts which show her findings and prove there was an attempt to locate any copyright holders. If there are concerns regarding a piece, the library is able to consult the city attorney for advice. In the case of a collection of videos from a local broadcasting station, Moretta has set those items aside until she has completed her research, including consulting experts at other archives to trace who may still have the rights.
When an owner is found and permission is given to place the image online, a note is added to the metadata regarding rights. The library uses different terms depending on who holds the copyright. If rights are held by the photographer, this states “Restrictions Apply” with the name of the photographer. For materials where the rights holder is unknown or is in the public domain, “Restrictions May Apply” with the name of the collection. Some images instruct those interested in using an image to obtain permission from the library.
Knowing the rights status of a film is required when nominating a work to the California Audio Visual Preservation Project (CAVPP). This project, hosted by University of California Berkeley and made available on the Internet Archive, digitizes and preserves audiovisual materials from Californian libraries. This program was very tempting for the SFPL, which wants to preserve its collection but does not have the refrigerated storage needed to protect old film.
Determining copyright for audiovisual materials can be difficult without the equipment to view the material, or without the ability to see the images without damaging fragile film. Among the materials from the SFPL that have been digitized by CAVPP are several films of San Francisco’s 34th mayor George Christopher, which were given to the library by his family. The library had the documentation transferring rights to the library. Another film, Giant Trees of California, was an Edison film produced in 1912 and was in the public domain due to the age of the film. One film canister had a label simply stating “parade.” This piece, which is a little over one minute in duration, was found, after digitization, to be of President Franklin D. Roosevelt’s first visit to San Francisco in 1938. Unlike the Edison film, it was past the 1923 date and did not include any information about the creator such as a title segment. This item could still be covered by copyright but could also be an orphaned work. The library felt that the likelihood of the original creator of the film still being alive was minimal and if someone stepped forward regarding the piece it could be taken down from the site and the history behind the film could be more fully documented. This position could be expressed in the rights statement.
CAVPP requires all audio/visual materials to include a rights statement and libraries are able to choose from a selection of these that best describe the situation. For the Roosevelt film this states “Copyright status unknown . . . San Francisco Public Library attempted to find rights owners without success but is eager to hear from them so that we may obtain permission, if needed. Upon request to info@sfpl.org digitized works can be removed from public view if there are rights issues that need to be resolved.”58 This is a basic statement which can be included for any material for which copyright cannot be determined.
Moretta estimates the amount of time between a nominated film being accepted and placed online is about eleven months. This provides additional time to research and determine the copyright status. For some of these materials the preservation of the film trumps that of access, and there are some materials which were not sent to CAVPP which the library has digitized with other funds in order to safeguard the content.
When the copyright status is in question the boilerplate statement asks that the library be contacted. This happens very rarely. In one case a photographer saw one of his images in a book and contacted the author, who informed him that the image was at the library. In this instance the issue was that the photo was not attributed to the artist. This person did not mind having the photo online but did want credit for the work and the library was happy to oblige. In another case a woman had given the images to the library but objected to those items being online. The library took those images down and maintains the originals.
In cases where there is a copyright challenge Moretta will communicate with the individual and explain how and why the materials are available online. If the person is not satisfied the state archivist may join the conversation, and if necessary the city attorney’s office can be consulted. The library always has the option of removing a digital item from the collection. These occurrences are very rare, and even if there is an issue the library can keep the digital files and has the possibility of gaining important information about what was once considered an orphaned work.
The SFPL has chosen a policy of making materials available with the knowledge that it might be asked to remove access. To minimize the possibility of this occurring the library starts with materials known to be in the public domain or with rights transferred to the library. When copyright is in question the efforts to determine the owner are documented. Your library should determine what will work best for your situation and workflow.
Chapter Synopsis
This chapter was not meant to be a comprehensive resource in copyright law as it applies to digital collections in any library. It was meant to serve as an introduction to copyright matters that a public librarian may need to know from the beginning of a project. Please be sure to consult the resources cited to gain further knowledge of this topic. To summarize, here are the main points to consider from this chapter:
▪ Copyright subsists in a work from the moment of its creation. No registration is needed.
▪ Copyright owners have the exclusive rights to copy, make derivative works, distribute, and publicly perform or display their works. In the case of sound recordings, copyright owners also have the right to digitally transmit such work.
▪ The creator of a copyrighted work is the one who usually owns the rights to it. However, these rights can be transferred—in whole or in part—to others.
▪ Donor agreements ensure that the library has the right to digitize the items and to make them available in the manner that they would like. They also help to clarify whether the donor owns the copyright to items in their donation.
▪ Copyright in the U.S. typically lasts for the life of the author plus seventy years. Works published before 1923 are in the public domain. Unpublished works created prior to 1895 are in the public domain. No sound recording will enter the public domain until 2067.
▪ Fair use allows for uses of copyrighted works for purposes of teaching, criticism, research, or comment. In an infringement case, a judge will analyze the use against the following four factors to determine whether the use was fair:
– Purpose of the use.
– Nature of the copyrighted work (fiction/highly creative versus nonfiction/factual).
– Amount of the copyrighted work used.
– The effect of your use on the market for the copyrighted work.
Tools such as Kenneth Crews’s Fair Use Checklist and codes of best practices in fair use can assist you in making a determination on whether your use might be fair.
▪ It might be necessary to get permission to use a copyrighted work in your digitization project. Start with the work you’d like to digitize for clues on who may be the rights holder. Also search the U.S. Copyright Office’s databases as well as other rights holder organizations.
▪ In some cases, it may not be possible to locate a rights holder even though the work is still in copyright. These are called orphan works. Librarians and archivists have created statements of best practices on this issue with respect to documenting search efforts to find the rights holder as well as the legalities involved in using orphan works.
▪ End-user policies help your patrons to understand how they can and cannot use digitized works in your collections.
1. “Copyright and Other Restrictions That Apply to Publication/Distribution of Images: Assessing the Risk of Using a P&P Image,” Library of Congress website.
2. Tammy Ravas, the author of this chapter, is not a lawyer and cannot provide legal advice. This chapter is written with the intent to provide authoritative information on the matters of copyright and digitizing collections in public libraries. None of it should be taken as legal advice. Please consult a licensed attorney, preferably one with a specialization in copyright law, should you need legal advice.
3. Statute of Anne; April 10, 1710, Yale Law School, Lillian Goldman Law Library website, http://avalon.law.yale.edu/18th_century/anne_1710.asp.
4. U.S. Constitution, art. I, sec. 8, cl. 8.
5. Subject matter of copyright: in general, 17 U.S.C. §102 (a).
6. Ibid.
7. Remedies for infringement: Damages and profits, 17 U.S.C. § 504 (c).
8. Capitol Records, Inc. v. Thomas-Rasset, 692 F. 3d 899 (8th Cir. 2012).
9. Exclusive rights in copyrighted work, 17 U.S.C. § 106.
10. Limitations on exclusive rights: Reproduction for blind or other people with disabilities, 17 U.S.C. Sec. 107-121.
11. Kenneth D. Crews, Copyright Law for Librarians and Educators: Creative Strategies and Practical Solutions, 3rd ed. (Chicago: American Library Association, 2012), 31−38.
12. David Ensign, “Copyright Corner: Copyright of Photographs,” Kentucky Libraries 76, no. 1 (Winter 2012): 27−28.
13. Laura Gasaway, “Questions and Answers—Copyright Column,” Against the Grain 19, no. 1 (February 2007): 57; Caroline Daniels, “Providing Online Access to Oral Histories: A Case Study,” OCLC Systems & Services 25, no. 3 (2009): 176−77.
14. Dwayne Buttler, “Music and Copyright” in Copyright Law for Librarians and Educators, 3rd ed. Chicago: (American Library Association 2012), 112.
15. Eric Harbeson, Ownership in Institutional Sound Recordings (Helsinki, Finland: World Library and Information Congress, 78th IFLA General Conference and Assembly, 2012), 9−12, http://conference.ifla.org/past-wlic/2012/148-harbeson-en.pdf.
16. Buttler, “Music and Copyright” 112.
17. Carrie Russel, Complete Copyright for K-12 Librarians and Educators (Chicago: American Library Association, 2012), 108−09.
18. “A Guide to Deeds of Gift,” Society of American Archivists website, www2.archivists.org/publications/brochures/deeds-of-gift.
19. “A Guide to Deeds of Gift.”
20. Curt Witcher, personal interview with the author, August 20, 2014.
21. Ibid.
22. Duration of copyright: Works created on or after January 1, 1978, 17 U.S.C. § 302 (1976).
23. Ibid. (c).
24. Ibid. (c), (e).
25. Ibid. “Hirtle, P. (2010). Copyright Term and the Public Domain in the United States. Retrieved from http://copyright.cornell.edu/resources/publicdomain.cfm.
26. Hirtle, P., Copyright Term and the Public Domain in the United States.
27. Ibid.
28. Limitations of exclusive rights: Fair use, 17 U.S.C. § 107 (1976).
29. Ibid.
30. U.S. Copyright Office, Circular 21, pp. 6−8.
31. Pat Aufderheide and Peter Jaszi, Reclaiming Fair Use: How to Put Balance Back into Copyright (Chicago: University of Chicago Press, 2011), 94−107.
32. Ibid., 108−26.
33. Code of Best Practices in Fair Use for Academic and Research Libraries (Washington, DC: Association of Research Libraries, 2012), 19.
34. Ibid., 20−21.
35. Crews, Copyright Law for Librarians and Educators, 56.
36. Limitations on exclusive rights: Reproduction by libraries, 17 U.S.C. § 108 (1976).
37. Crews, Copyright Law for Librarians and Educators, 139−41; Rebecca P. Butler, Copyright for Teachers and Librarians in the 21st Century (New York: Neal-Schumann, 2011), 29−31.
38. Crews, Copyright Law for Librarians and Educators, 142.
39. Butler, Copyright for Teachers and Librarians in the 21st Century, 33.
40. Crews, Copyright Law for Librarians and Educators, 143.
41. Ibid.
42. Report on Orphan Works (Washington, DC: U.S Copyright Office, 2006), http://copyright.gov/orphan/orphan-report-full.pdf; Shawn Bentley Orphan Works Act of 2008, 110th Congress, S.2913 (2007−2008).
43. Crews, Copyright Law for Librarians and Educators, 143.
44. Orphan Works: Statement of Best Practices (Chicago: Society of American Archivists, 2009), www2.archivists.org/sites/all/files/OrphanWorks-June2009.pdf.; Statement of Best Practices in Fair Use of Collections Containing Orphan Works for Libraries, Archives, and Other Memory Institutions (Berkeley: University of California Press, 2014), www.cmsimpact.org/fair-use/best-practices/statement-best-practices-fair-use-orphan-works-libraries-archives#twentynine.
45. Orphan Works: Statement of Best Practices, 2−11.
46. Statement of Best Practices in Fair Use of Collections Containing Orphan Works for Libraries, Archives, and Other Memory Institutions, 27.
47. Ibid., 28.
48. Ibid., 30−31.
49. Ibid., 32−33.
50. Ibid., 35.
51. Ibid., 36.
52. Ibid., 37.
53. “Legal,” Library of Congress website, www.loc.gov/legal/; “Cabinet of American Illustration: Rights and Restrictions Information,” Library of Congress website, www.loc.gov/rr/print/res/111_cai.html.
54. Code of Best Practices in Fair Use for Academic and Research Libraries, 20; University of California Berkeley and American University, 36.
55. Statement of Best Practices in Fair Use of Collections Containing Orphan Works for Libraries, Archives, and Other Memory Institutions, 36.
56. “About the San Francisco History Center,” San Francisco Public Library website, http://sfpl.org/index.php?pg=2000019101.
57. San Francisco Public Library Annual Report: By the Numbers, 2013−2014 (San Francisco: San Francisco Public Library), http://sfpl.org/pdf/about/administration/statistics-reports/annualreport2013_2014.pdf.
58. “President Franklin Delano Roosevelt in San Francisco,” Internet Archive, https://archive.org/details/csf_00002.