-
1A. What can we do with physical ownership
rights?
- How does that differ from what we can do when we own copyright?
Copyright pertains to the intellectual content of the document
and is generally held by the author or publisher. It exists, and is protected,
from the time it's fixed in tangible format, now known or later developed.
There are eight categories into which copyrighted materials fall (see Section
102A of the Copyright Act) including literary, dramatic, musical, audio
visual, and motion pictures. The owner of copyright has the exclusive right
to publish, distribute, transfer ownership, reproduce, perform, display,
and adapt the work. The copyright owner can transfer portions of copyright
to a publisher (such as the right to publish a hardback version of a book,
a book-on-tape version, a paperback version, etc.) Ownership of copyright
is only for a limited number of years. Thereafter, the material passes into
the public domain and is owned by everyone (see discussion of public domain
below.)
Physical ownership, sometimes called "simple ownership," means
that you own a "copy" of the work; you own the medium on which the intellectual
content is stored. Medium may include paper, computer disk, video tape,
etc.
When you own both the "copy" and copyright, you may do anything
with the material, including charging for access to it, and for publishing
it. You can also withhold permission to publish. When you own a "copy" but
not copyright, you can only use the copy for research purposes; you may
transfer the copy to someone else; and/or you can reproduce portions of
it under "fair use." You can charge for access to your copy, but you cannot
charge for permission to publish, because you do not own the right to grant
permission to publish. If you own a "copy" and the intellectual content
has passed into the public domain, you can charge for providing access to
your "copy," but you cannot charge for permission to publish, nor can you
withhold permission to publish (note exception under 2).
When a copyright owner donates material to a library, s/he
must explicitly donate copyright, otherwise only physical ownership is donated.
The best source on the difference
between ownership of copyright and physical ownership is: The Nature
of Copyright: a Law of Users' Rights,
L. Ray Patterson & Stanley W. Lindberg; foreword by Robert W. Kastenmeier.
Athens: University of Georgia Press, c1991.
-
1B. What portion of
the copyright law governs making copies of unpublished materials
for researchers when Yale University
does not own copyright to those materials?
After the 1992 amendments to the act, unpublished works are
treated just the same as published ones, and fair use applies. See Section
107 as amended. Case law tells us that someone may not publish unpublished
works written by someone else if they are still under copyright, but they
may quote from them following the 4 fair use factors.
If Yale owns a copy of the unpublished work, under Section
108(b) the library may make up to three copies of the work for preservation,
security or deposit in another library. However, if one of the copies is
a digital copy, the digital copy may not be used outside the premises of
the library. (From the Digital Millenium Copyright Act of Oct. 28 1998).
Publication
-
2A. When a researcher requests
permission to publish a "copy," or from a "copy," owned by a special
collections unit, what can we lawfully do for them/require of them?
If Yale owns the copy only:
If Yale owns a copy of such a work, but does not own the copyright,
Yale has no right to grant permission to publish (or charge for such permission)
and the researcher should be so informed. Yale also cannot deny to someone
else the right to publish since Yale does not own the copyright or force
a researcher to credit a Yale special collection should they publish. However,
Yale can deny access to the work entirely which effectively withholds from
someone else the right to publish since they have no access.
If Yale owns the copy and the copyright:
If Yale also owns copyright, it can
permit access to the "copy," and publication of it (and charge for both),
or it can deny access and/or publication.
If Yale owns the copy, but the copyright has passed into
public domain:
If the copyright has passed into
the public domain, Yale may charge for access to its copy, but it cannot
request that the researcher
apply for permission to publish it. Although not tested in court, Yale
may be able to permit access to a copy in the public domain but deny
permission
to publish it, if Yale itself is going to publish the "copy" in the foreseeable
future.
-
2B. When a researcher requests permission to
publish a "copy," or from a "copy," owned by a special collections
unit, in facsimile form, or to publish a copy photograph (i.e. a photograph
of a work of art), what can we lawfully do for them/require of them?
All photographs, even those referred
to as "copy photographs," are copyrighted. Copy photographs are copyrighted
even if the original work of art reproduced in a photograph is in the
public domain. (There is controversy
over whether copy photographs should be copyrighted, especially in the
art history community.) Only the owner of the copyright can grant permission
to publish, and charge for such permission. If a special collections
unit
owns a collection of personal papers which includes photographs, it will
have to determine whether it owns the copyright to the photos in order
to
know how to advise researches who wish to publish one or more of them.
-
2C. When a special collections unit wants to publish
(analog or digitally) a work from its holdings and ownership of copyright
to that work is unknown, what steps should the special collections take
to try to determine ownership? Is there a commonly agreed upon "reasonable
effort" that should be made?
The unit needs to do everything reasonable
to determine who the copyright holder is and to secure their permission
to publish. The unit
can search the Copyright Office files (http://lcweb.loc.gov/copyright/),
which contain information on published works both before and after 1978,
and unpublished works after 1978, or hire the Office or a search firm
to
do it. A search firm can also try to locate heirs. The steps taken should
be documented and placed in the unit's files. The unit can also determine
whether publishing the item is taking an "acceptable risk" -that the
chances of heirs (if there are any) coming forward to protest the publication
are
minimal.
Public Domain
-
3. What rights does
Yale have in works it owns, that are now in the public domain?
When do photographs (including slides and negatives), recordings,
and art objects (including paintings, drawings, prints, and decorative arts),
each pass into the public domain?
See: "When Works Pass into the Public
Domain" http://www.unc.edu/~unclng/public-d.htm.
The Sonny Bono Copyright Term Extension Act passed in October
and was signed into law 10-27-98. It extends the term to Life + 70 and is
retrospective. Photographs, art objects, recordings, all pass into the public
domain in the same manner as books and manuscripts. (Beginning in 1978,
when art objects are purchased only the object is purchased, not copyright
in it. The owner of copyright in the art work must explicitly transfer it.)
Foreign Copyright Laws
-
4. For materials of
foreign origin (materials created in a foreign country and exported
to the U.S., now residing
at Yale), what copyright laws apply? (Many special collections in the
United States work under the assumption that if the materials are
housed
in the United States, they are covered by US copyright laws, not the
copyright laws of the country in which they were created.
Where the materials are housed is immaterial, it is the laws
of the country of origin which apply regardless of the citizenship of the
creator.
Copyright and Digitization
-
5. When can we reproduce
on the Internet, prints, drawings, photographs, manuscripts, or
sound recordings for: Yale classes,
Yale community at-large, any researchers with access to the Internet?
If Yale holds the copyright to the
materials to be reproduced, it can do anything it wants to do with them.
If it doesn't hold the copyright,
it needs to try to find the owner and get permission to reproduce them,
or it can choose to "assume the risk." If the materials are in the public
domain, they can be freely reproduced on the Internet.
Yale Classes:
The "Classroom Guidelines" which accompany the copyright act
should govern the mounting of materials on the Internet for class use. Mounting
materials on the Internet for a class is the equivalent of creating a reserve
collection for that class. Publishers, the American Council on Education,
and the American Library Association have all agreed to follow these guidelines.
The guidelines (see: "Classroom Guidelines" http://www.dickinson.edu/copyright/guidebks.htm
) have been cited with approval in two court cases. When putting materials
on the Internet for classroom use, follow the guidelines, including one-semester
use only (you need to get permission if you want to use them longer than
that; the Copyright Clearance Center can help you get it: http://www.copyright.com/),
access restricted to course members, and materials must be supplemental/complementary
only -they are not the same as a course pack. If the materials are unpublished,
either try to get permission (all reasonable efforts), or weigh the risk
and perhaps decide the risk of putting them on the Internet is acceptable
(if the materials are 200 years old, the risk is probably acceptable -if
the materials were created in 1980, the risk is probably not acceptable).
The Copyright Clearance Center service for this is called the ECCS, the
Electronic Course Content Service. It also applies for materials provided
electronically to distance learning students.
Public at large:
If the World Intellectual Property Organization View prevails,
making materials available to the public on the Internet will be the same
as publishing them (because they are defined as copies in RAM). Whether
you can do so depends on whether you own copyright to the materials, and,
if not, whether you are going to assume the risks that come with publishing
them without permission.
-
6. Does the quality or nature of reproduction (such
as use of thumbnails, watermarks, or high vs. low resolution) affect
what we can do with each of the various types of materials for each
of our two user communities?
If what you present on the Internet
is not reproducible, i.e. low resolution images (thumbnails), then it
likely can be presented to all
user communities including the public. Thumbnails are "reference metaphors"
-you are not substituting for the original, so most photographers agree
to their use. For purposes of copyright, thumbnails should be scanned at
the lowest resolution possible that still provides a "reference metaphor" of
the image or object. Problems occur when high resolution images are presented
which can be reproduced as copies of the original work. If this occurs
then
all of the considerations related to copyright ownership come into play.
-
7. How long can the
reproductions remain on the Internet?
It depends on whether the material
is in the public domain; if so, it can remain indefinitely. The same
is true if Yale owns the copyright.
One semester is allowed under the "Classroom Guidelines." If the material
is not in the public domain and Yale does not own copyright, the university
has to determine what an "acceptable risk" period is. Most universities
seem to be saying for the duration of the course only. In other words,
one
term. Then they are moved to another part of the server and not used until
the course is taught again.
-
8. Are there standards
for providing bibliographic information about and/or identifying
the items we reproduce on the web
(i.e. do we need to provide information on copyright status, physical
ownership, location of item within a collection, do we need to
reproduce
versos when they include information about the item's identity, etc.)?
There are no clear standards for providing bibliographic information.
The unit/university should determine its own guidelines. Such information
might include information on access (open or restricted) and location of
material within the library/unit/collection. Include whatever information
is useful.
Additional information:
Preservation copies: The DMCA in Section 108 states
that libraries or archives may make up to three preservation copies of a
work either as either paper facsimiles, microfilm, or digital. However the
law specifically states that the digital copies can only be available for
use within the premises of the library or archives.
Web site copyright protection: The
copyright symbol, ©, or copyright notice should be affixed to all web sites. There is
no need to register a web site (but it can be done) because they automatically
receive copyright protection (see "When Works Pass Into The Public Domain.")
In the copyright notice identify who is responsible for developing the site,
the copyright holder, and the year of first publication. When you make links
to other web sites within your own, use "url" addresses, not logos or icons;
use of the latter can be considered trademark infringement.
Definition of publishing: Works of art are considered
to be published when they are publicly displayed. Textual material is considered
published when it appears in books, journals, or on the Internet.
Interlibrary loan copies: When ILL-ARIEL workstations
are used to provide the image of a text to a requestor, the image should
be deleted from the workstation after it has been delivered. Section 108
(d) of the Copyright law states that libraries can make the copy available
to the user, but cannot retain a copy for themselves. Publishers will sell
libraries the right to retain the image.
Does the Internet change copyright law?: The provisions
of the 1976 copyright act are completely transferable into the web environment.
The new technology does not change anything to do with how copyright applies;
it gives us new ways to infringe.
Copyright protection for databases: Legislation is pending
which would provide protection for databases outside of the Copyright Act.
In 1991, the courts determined that in order for databases to be covered
by copyright, they had to meet certain criteria: selectivity, organization,
indexing, and value adding. Most databases can meet these criteria, unless
they are simple arrangements of information (phone books). Database providers
argue that databases should be treated as items of commerce and be placed
outside of the copyright act. Pending legislation has each item in a database
covered for 15 years (each new item added would be given 15 years from the
time it is added). Opponents, including the Copyright office, library associations,
and universities, oppose the bill and argue that it might violate the Constitution
which defines writings, including databases, as covered by the Copyright
Act. Databases are defined as any collection of information on which the
publisher had to spend a great deal of capital -resources or human -in order
to produce.
Online service providers and copyright infringement: The Digital
Millenium Copyright Act holds online service providers liable for copyright
violation if they sponsored the work which violated copyright or if they
should have foreseen the copyright infringement occurring. As a result,
universities might become very restrictive in what they allow faculty and
staff, particularly library staff, to put up on the Internet.
