IIGS™ Newsletter - April 1999
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IIGS™ Newsletter - April 1999
Although my limited knowledge of copyright law extends only to United States law, copyright laws and the issues surrounding them are somewhat similar no matter the country. This article deals primarily with U.S. copyright law, but it hopefully will clarify some international issues as well.
It may surprise some people that, according to the Working Group on the National Information Infrastructure, the Framers of the U.S. Constitution "intended copyright itself to be the engine of free expression," not to reward authors for their hard work. Copyright means exactly what the word says: The exclusive right to make and distribute copies of a work. It is the "economic incentive to create and disseminate ideas," writes the Working Group.
Copyright primarily protects the work of authors and only secondarily provides a means toward assuring economic reward. The founders of the country believed that encouraging creativity by giving authors a temporary monopoly on their work would reap benefits for the public and the young nation.
Excluded from copyright protection are ideas, procedures, processes, systems, methods of operation, concepts, principles or discoveries. Also excluded are titles, names, short phrases and slogans, although some of these may find protection as trademarks.
Thus, while original works of creativity are protected, facts and ideas are not. The belief is that facts and ideas are the building blocks of creativity and they remain excluded from protection to encourage further creativity.
Standards by which copyright protection is afforded have been developed through the years by a series of court decisions which have served to further define the rather broad concepts of the Copyright Act. The original Copyright Act of 1790 (the date it was signed into law by President George Washington) has undergone three major revisions (1870, 1909 and 1976) as new technologies have created new demands on the law.
The Fair Use Doctrine and Public Domain often are misinterpreted. Fair use is one of the limits placed upon a copyright which serves to balance the monopolistic (although temporary) right of the author of the original, creative work against the public good. Because the primary intent of copyright is to encourage creativity, the courts have consistently held that certain limited uses of a copyrighted work for purposes of research, teaching, criticism, comment or news reporting (some of the more common exclusions) are not infringements of a copyright.
Genealogists should be aware that the courts have held no sympathy for defendants who claim ignorance of the law. Indeed, the burden of proof is not even on the copyright holder, but on the defendant (the infringer).
It also does not pay to dismiss the seriousness of copyright infringement through the belief that a copyright holder won't sue because it would cost money to bring suit. If the court finds in favor of the copyright holder, the defendant must pay the copyright holder's legal fees.
Copyright law is complicated, in part, because it is continually defined and re-defined case-by-case in the courts. The advent of computer technology and the Internet have added to the difficulty in determining what is copyright infringement and what is not.
While copyright law cannot be explained in great detail here, there are some areas where online genealogists are treading dangerous ground. The following are some examples of issues taken from online forums:
- Everything is Public Domain in the computer age.
- Not true! Public Domain applies only to those works upon which copyright has expired or works which never were eligible for copyright protection. Under current law, works created after Jan. 1, 1978, are automatically protected for the author's life plus an additional 50 years after the author's death. (U.S. Copyright Office Circular #1) Further, the law no longer requires a notice of copyright on works created after the 1978 date, nor is registration required. Works created and published before 1978 still must bear a copyright notice. The copyright term on such works was 28 years from date of publication. Renewal was possible in the 28th year and the 1976 law has extended the renewal term to 47 years.
Correction: The Sonny Bono Copyright Term Extension Act extended the terms of copyright, in general, another 20 years. The Act was signed into law Oct. 27, 1998.
- Translations of copyrighted works are original, creative works.
- A translation is considered a derivation of an original, creative work. While the translation is protected by copyright the person creating and publishing the translated work must secure permission to do so from the original copyright holder. According to the Working Group, "a derivative work is a work 'based upon' one or more pre-existing works.…The copyright in a derivative work or compilation… extends only to the contribution of the author of the derivative work or compilation (the compiler), and does not affect the copyright protection granted to the pre-existing material."
- Forwarding messages from one Internet mail list to another is not an infringement of copyright.
- Wrong! "Electronic network transmissions from one computer to another, such as e-mail, may only reside on each computer in RAM (random access memory), but that has been found to be sufficient fixation," according to the Working Group. That e-mail is recorded in digital form (binary coding) which, says the Working Group, fits the definition of "fixation." Fixation is one of the tests for determining whether a work has been reproduced in tangible form.
Now, what is being debated is whether mail list members are giving tacit approval by virtue of their membership for their "original" works (messages) to be reproduced. By posting a message to a list, the poster is actually providing copies of that message to each member of the list.
"… under U.S. law… the placement of copyrighted material into a computer's memory is a reproduction of that material…. ." (Working Group) Further, scanning a book or other document into digital form is reproducing that material. Any works which are digitized are copied. What is still unclear is whether copyright infringement extends to subsequent copies of the original posting of the message being forwarded to other lists.
- Copyright infringement only exists if someone claims the work of another as their own.
- Many people confuse copyright and plagiarism. A work does not have to be copyrighted to be plagiarized. Plagiarism is the appropriation of another's work to claim it as one's own. For example, if John Doe writes a letter to his wife and Joe Dokes takes the same letter (or copy of it) and sends it to his wife with his own name affixed to it, Joe Dokes is guilty of plagiarism. He is also guilty of copyright infringement because he made a copy of the letter. Now, if John Doe wrote the letter in 1700, then it no longer enjoys copyright protection, so Joe Dokes is not guilty of copyright infringement, but he is still guilty of plagiarism.
- Copyright infringement only exists if the violation harms the copyright holder or is done for profit.
- When courts endeavor to determine damage awards in cases of copyright infringement, they may consider how much economic damage was done. But economic damage does not have to be done for the copyright infringer to be ordered to pay damages. Also, the courts have found both public libraries and schools guilty of copyright infringement, although both are nonprofit entities. The harm is in the act of infringing, not in the economic impact of the violation.
- Genealogy books are considered reference books and as such are not copyright protected.
- The following are considered "literary works" and are protected as long as they contain even a minute measure of originality or creativity: "computer programs, articles, novels, directories, computer databases, essays, catalogs, poetry, dictionaries, encyclopedias, and other reference materials." (Working Group)
- Since libraries contain photocopying machines where library books are copied by patrons, it must be okay to copy.
- Libraries operate under a strict set of guidelines which recognize the role of libraries as public research facilities. Libraries are allowed under very strict circumstances (such as the need to protect a fragile copy of an historical book) to make a single copy of a copyrighted work. Libraries, in order to be held harmless should a patron photocopy a copyrighted work, must post a copyright notice at the machine.
- Wholesale reproduction of copyrighted compilations on the Internet is legal because they are just books of facts.
- Genealogists are treading some really murky waters here. Compilations are works "formed by the collection and assembling of pre-existing materials or of data that are selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original work…." According to the Working Group, "the copyright in a compilation… is limited to the original selection or arrangement of the facts or other elements compiled; protection for the compilation in no way extends to the facts or elements." The work of the compiler is not entitled to copyright protection simply because it took years of hard work to extract the data. Copyright protection merely extends to what is original and creative about the work.
The jury is still out on just how much copyright protection should be afforded compilations of "facts." H.R. 354, currently before the U.S. Congress, may have a profound impact on the ability of researchers to use the facts found in such works to create their own works. Some supporters of H.R. 354, called the "Collections of Information Anti-Piracy Act," have called for terms of protection anywhere from 15 years to perpetuity.