Copyright for Special Collections

PHYSICAL OWNERSHIP VS. OWNERSHIP OF COPYRIGHT

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 facsimile reproduction of a "copy" owned by a special collections unit (e.g, publish a copy photograph of a work of art), what can we lawfully do for them/require of them?

If a researcher wants to publish a facsimile reproduction of a copy held by a special collections unit, it is the researcher's responsibility to determine whether the original item (e.g, the original item that is represented by a copy photograph in the special collection) is under copyright or in the public domain. If the original in question is a two-dimensional object that is already in the public domain, then a "copy photograph" of the original does not have any copyright protection. According to the Bridgeman decision, ''There is little doubt that many photographs, probably the overwhelming majority, reflect at least the modest amount of originality required for copyright protection.... But 'slavish copying', although doubtless requiring technical skill and effort, does not qualify.'' If Yale owns the copyright to the original item it can require the researcher to request permission to publish a facsimile of it.

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?

Foreign works are treated as if they were created in the United States if they were produced in a country that adheres to the Berne Convention or other bilateral copyright treaty, or if they were published by the UN or OAS. See Circular 38a International Copyright Relations of the United States.

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: 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.

© 2007 Yale University Library
This file last modified 11/17/05
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