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Copyright and Cultural Institutions: Guidelines for Digitization Copyright and Cultural Institutions Copyright and Cultural Institutions Guidelines for Digitization for U.S. Libraries, Archives, and Museums Peter B. Hirtle, emily Hudson, & Andrew t. Kenyon Cornell university liBrAry ithaca, new yorK © 2009 Peter B. Hirtle, Emily Hudson, and Andrew T. Kenyon Published by Cornell University Library Ithaca, New York 14853 ISBn-13: 978-0-935995-10-7 Design and composition by India Amos Attribution-Noncommercial- No Derivative Works 3.0 United States Contents Preface • ix 1 Introduction • 1 1.1 What is copyright? • 2 1.2 The framework of copyright law • 6 1.3 Principles of copyright law • 9 1.4 Common law copyright • 11 1.5 Copyright timeline • 11 2 Copyright Fundamentals • 15 2.1 Introduction • 15 2.2 Types of work protected by copyright • 15 2.3 What are the prerequisites for an item to be protected by copyright? • 29 2.4 Works made prior to 1978 • 36 3 Duration and Ownership of Copyright • 39 3.1 Introduction • 39 3.2 What is the duration of copyright? • 40 3.2.1 unPuBlisHed worKs • 41 3.2.2 worKs first PuBlisHed in tHe united stAtes • 45 3.2.3 PuBlisHed foreign worKs • 49 3.2.4 sound reCordings • 53 3.2.5 ArchiteCturAl worKs • 54 3.3 Who is the owner of copyright? • 55 3.4 How is copyright transferred to others? • 63 3.5 Conclusion • 65 4 Exclusive Rights and Infringement • 67 4.1 Introduction • 67 4.2 Exclusive rights • 68 4.3 Moral rights • 74 4.4 The right to control access to digital works • 76 v Contents 4.5 Infringement • 78 4.6 Remedies for Infringement • 83 4.7 Conclusion • 86 5 Fair Use and Other Exemptions • 87 5.1 Introduction • 87 5.2 Fair Use • 89 5.3 The four factors • 92 5.4 Fair-use examples • 94 5.5 Fair-use guidelines • 99 5.6 Fair use and cultural institutions • 101 5.7 Educational performances • 102 5.8 Other exemptions • 104 5.9 Sovereign immunity • 106 6 The Libraries and Archives Exemptions • 107 6.1 Introduction • 107 6.2 Eligibility • 109 6.3 Preservation copying of unpublished works • 113 6.4 Replacement copying of published works • 114 6.5 Digital preservation and replacement copies • 115 6.6 Reproductions in response to patron requests • 116 6.7 Libraries and archives privileges found outside Section 108 • 126 6.8 Checklist for libraries and archives provisions • 127 7 Copyright Permissions and Licenses • 129 7.1 Introduction • 129 7.2 What is permission? What is a license? • 130 7.3 Negotiating licenses • 136 7.4 Sample licenses • 138 7.5 License terms • 143 7.6 Clickthrough and browse-wrap licenses • 147 7.7 Alternative licenses • 149 7.8 Conclusion • 151 vi Contents 8 Locating Copyright Owners • 153 8.1 Introduction • 153 8.2 Identifying copyright owners • 154 8.3 Strategies for locating copyright owners • 159 8.4 Orphan works • 171 9 Other Types of Intellectual Property, Contracts, and Jurisdictional Issues • 173 9.1 Introduction • 173 9.2 Trademarks • 175 9.3 Right of publicity • 178 9.4 Right of privacy and defamation • 181 9.5 Contracts • 185 9.6 International issues • 188 9.7 Traditional knowledge • 190 10 Risk Management: How to Digitize Safely • 193 10.1 Introduction • 193 10.2 Recap of potential risks • 194 10.3 Elements working to minimize risk: the litigation calculus • 195 10.4 Cease-and-desist notices • 199 10.5 Workflow for minimizing risk • 202 10.6 Explain, solicit, document, and contribute • 207 10.7 Conclusion • 212 11 Case Study 1: Interviews and Oral Histories • 215 11.1 Introduction • 215 11.2 Identification of potentially protected material • 215 11.3 Does copyright subsist in any of these items? • 216 11.4 Who is the author of the work? • 218 11.5 Has copyright in the work expired? • 221 11.6 Does the institution wish to perform one of the “exclusive acts” of the copyright owner? • 222 11.7 Does digitization fall within any exemptions to infringement in the Copyright Act? • 223 vii Contents 11.8 Are there other considerations than just copyright to consider? • 224 11.9 Practical suggestions arising from this chapter • 225 12 Case Study 2: Dissertations, Theses, and Student Papers • 227 12.1 Introduction • 227 12.2 Definitions • 228 12.3 Can copyright subsist in DTSPs? • 228 12.4 Who owns the initial copyright in a DTSP? • 228 12.5 Is the work published or unpublished? • 230 12.6 Is the work within the copyright term? • 234 12.7 Does the institution wish to perform one of the “exclusive acts” of the copyright owner? • 234 12.8 Does digitization fall within any exemptions to infringement in the Copyright Act? • 235 12.9 Do laws designed to protect student privacy affect digitization? • 235 12.10 Risk assessment • 237 12.11 Practical suggestions arising from this chapter • 241 furtHer reAdings • 243 CAses Cited in tHe guidelines • 245 notes • 247 viii Preface This mAnuAl is based on Copyright and Cultural Institutions: Guidelines for Digitisation by Emily Hudson and Andrew T. Kenyon. The Guidelines for Digitisation were one of the products of a research project conducted by the Centre for Media and Communications Law and the Intellectual Property Research Institute of the Australia, both located at the University of Mel- bourne. The project examined the impact of copyright law on the digitization practices of public museums, galleries, libraries, and archives in Australia. The Australian Guidelines for Digitisation are available at http://ssrn.com/ abstract=881699; updated Australian guidelines are due for release in 2010 and will be available via http://www.law.unimelb.edu.au/cmcl. While reading the guidelines, Peter Hirtle realized that a similar docu- ment, drawing on American law and practice, would be of great benefit to administrators and curators in American cultural institutions, including libraries, archives, and museums. Digitization continues to be of great importance and interest to the cultural institution sector as a means of facilitating the public interest missions of access, research, preservation, and education. Yet there is also great uncertainty associated with the copyright implications of digitization initiatives. One reason for institutional concern about copyright is the difficulty in understanding and interpreting the law: identifying the relevant legal principles; analyzing the relevant provisions of copyright legislation; and coming to grips with case law, little of which specifically addresses issues surrounding digitization by nonprofit institutions. Drafting and imple- menting copyright procedures often reveals the uncertainties in the law and demonstrates how difficult it can be to apply abstract legal principles to specific circumstances. Another reason for institutional concern is the practical difficulty of complying with the law: the administrative costs associated with locating and contacting copyright owners; the frequent long delays in seeking per- mission; the cost of licenses; and, particularly for smaller institutions, the lack of specialist lawyers or copyright officers to assist in complying with copyright law. Hudson and Kenyon’s Guidelines were developed to inform Australian cultural institutions and assist them with the legal and practical aspects ix Preface of copyright compliance. With their permission and assistance, Hirtle has prepared this manual to assist American cultural institutions in the same way. The manual is intended to provide some basic information on copyright law and offer a structure for considering copyright issues in digitization projects. Beginning with the question of when an item is protected by copyright, it moves on to explore strategies for dealing with copyright issues, including licensing and the legal exemptions that may allow digitization without obtaining permission. Two case studies are presented at the end of the manual that apply the preceding analysis to (1) interviews and oral histo- ries and (2) student dissertations, theses, and papers. These were selected because they embody many of the principles and problems identified in the earlier chapters and are topics on which Hirtle frequently is questioned. Note that this manual is for informational use only and does not con- stitute nor should be construed as legal opinion or advice. Furthermore, the law is in a constant state of evolution. Every effort has been made to ensure that the information presented is accurate, but the law is subject to change after publication. Cultural institutions should obtain the advice of a lawyer in relation to any specific questions regarding their copyright policies and practices. A note on copyright ownership of this mAnuAl The intricacies of copyright ownership are discussed in some detail in Chapter 2. This manual serves as a good example of some of the principles discussed in that chapter. Copyright in the original Guidelines for Digitisation belongs jointly to Emily Hudson and Andrew Kenyon: it is a joint work. Hudson and Kenyon published the guidelines with a Creative Commons Attribution-NonCommercial-NoDerivatives 2.1 Australian Licence (see Chapter 7 for a discussion of Creative Commons licenses). Under this license, users are allowed to make noncommercial use of the original Guidelines so long as no changes are made to the work (“no derivatives”) and Hudson and Kenyon receive credit as the authors (“attribution”). This manual is derived from Hudson and Kenyon’s work, and so their permission was needed for its preparation. It is a joint work coauthored by Hirtle, Hudson, and Kenyon, and so each owns a share x Preface of its copyright. This manual is also licensed under a Creative Com- mons license: the Creative Commons Attribution-Noncommercial-No Derivatives Works 3.0 United States License. In addition, Hudson and Kenyon have granted Hirtle a nonexclusive license to use the original Guidelines in any subsequent noncommercial editions or works that are derived from this manual. Many of the images used throughout the manual are in the public domain, and are so indicated.
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