Digital Content Creation and Copyright Issues

Copyright issues are always a hot topic in the digital library and archives community. Are researchers getting the access they need? Should we copy for preservation and storage? This blog post shares my thoughts on topics that come up again and again in the digital library, archives, and records management communities.

Digital and e-resources, commonly known as electronic resources or e-resources, are a subset of electronic media, specifically electronic publishing. They differ from other online resources such as websites in that they are primarily created for publishing and discovery via search engines. Digital and E-Resources is a non-commercial library with many links to academic e-journals, reliable e-journals, newsletters, and professional magazines which are undergone by copyright issues that are subject to the national law of the country in which it was originally published or where the academic or educational institution resides.

Introduction

The collection and long-term preservation of digital content pose challenges to the intellectual property regime within which libraries and archives are accustomed to working. How to achieve an appropriate balance between copyright owners and users is a topic of ongoing debate in legal and policy circles. This paper describes copyright rights and exceptions and highlights issues potentially involved in the creation of a nonprofit digital archive. The paper is necessarily very general since many decisions concerning the proposed archive’s scope and operation have not yet been made. The purpose of an archive (e.g., to ensure preservation or to provide an easy and convenient means of access), it’s the subject matter, and how it will acquire copies, as well as who will have access to the archive, from where, and under what conditions, are all factors critical to determining the copyright implications for works to be included in it.2 The goal of this paper is to provide basic information about the copyright law for those developing such an archive and thereby enable them to recognize areas in which it could impinge on copyright rights and plan accordingly. After initial decisions have been made, a more detailed analysis will be possible. As the paper indicates, several areas would benefit from further research. Such research may not yield definitive legal answers but could narrow the issues and suggest strategies for proceeding.

1. DIGITAL CONTENT
Digital or electronic content, such as e-books, photographs on Web sites and electronic databases are subject to the same protections under the Copyright Act as non-digital, traditional, or analog works. In addition, there are specific provisions relating to digital content in the 1998 amendment to the Copyright Act by the Digital Millennium Copyright Act (DMCA). Many people assume that online content, or content found on Web sites, is not subject to copyright law and may be freely used and modified without permission. This is not true. Others think that online content is not protected unless it carries a copyright notice. This is not true either. Copyright law protects almost all content on the Web or in any other digital or electronic form. Therefore, permission is most likely required to use that work beyond fair use.

What is Protected?
Any copyright-protected content in a non-digital form will be protected in a digital form. Examples of copyright-protected materials include Print and electronic booksAnalog and digital musical recordingsPrint and e-mail letters web sites embedded works in Web sites both electronic and non-electronic databases (such as professional directories and collections of images) may be copyright-protected if they reflect some level of creativity by the author in the selection or organization of the data. With the proliferation of new databases in electronic form, Congress is discussing new legislation to protect even those databases that do not meet the requirements in the Copyright Act.
Unique Uses
The electronic environment features methods of reusing copyright-protected materials. These methods include ScanningScanning or digitizing a work (such as an article, book excerpt, or photograph) to produce a reproduction of that work. Before scanning a work, you must obtain permission from the copyright holder or its agent. Using Content from a Web site before using any content on a Web site, you should determine its copyright status and, if necessary, obtain permission from the copyright holder or its agent. Posting Content to a Web SitePosting copyright-protected content on a Web site requires permission from the copyright holder or its agent. Forwarding E-MailThe copyright in an e-mail belongs to the author of the e-mail. The copyright in an e-mail attachment belongs to the author of the attachment. You must obtain permission from the applicable copyright holder(s) or their agent(s) prior to forwarding an e-mail or e-mail attachment. Linking to a Web site link on a Web site lets you click and connect to another area of the same site or to a different site. A link from your site to another Web site (especially to a page other than the homepage) may need the consent of that Web site’s owner. U.S. law is not clear on this issue. In an effort to be safe, many organizations only link their own sites to the public home pages (rather than the internal pages) of other Web sites. To ensure compliance, obtain permission even to link to another Web site’s home page. Electronic Discussion Lists, Bulletin Boards and NewsgroupsCopyright law protects all types of electronic discussions, including messages that appear in your e-mail inbox or ones that you access from a Web site or computer network. You should not reproduce or forward any comments from any electronic discussion list, bulletin board, or newsgroup without the permission of the copyright holder or its agent.

2. Copyright Subject Matter

A “copyright” exists in any original work of authorship fixed in a tangible medium.3 That medium can be almost anything, including paper, computer disk, clay, canvas, and so on. For a work to be “original,” it must meet two qualifications: (1) it cannot be copied from another work; and (2) it must exhibit at least a small amount of creativity. Copyright lasts for the life of the author and 70 years thereafter.4

3. Copyright Rights

Copyright provides not just a single right, but a bundle of rights that can be exploited or licensed separately or together. The economic rights embraced within copyright include the following:

The reproduction right (the right to make copies). For purposes of the reproduction right, a “copy” of a work is any form in which the work is fixed and from which it can be perceived, reproduced, or communicated, either directly or with the aid of a machine.5 Courts have held that even the reproduction created in the short-term memory (RAM) of a computer when a program is loaded for use qualifies as a copy.6

The right to create adaptations, or derivative works. A “derivative work” is a work that is based on a copyrighted work but contains new material that is original in the copyright sense. For example, the movie Gone With the Wind is a derivative work of the book by Margaret Mitchell. “Version” is not a term of art in copyright law. If a new version consists merely of the same work in a new form—such as a book or photograph that has been scanned to create a digital version—then it is a reproduction of the work. However, if new copyrightable authorship is added, then it is a derivative work. For example, Windows 2000 is a derivative work based on Windows 98.

The right to distribute copies of the work to the public. The distribution right is limited by the “first sale doctrine,” which provides that the owner of a particular copy of a copyrighted work may sell or transfer that copy. In other words, the copyright owner, after the first sale of a copy, cannot control the subsequent disposition of that copy.7 Making copies of a work available for public downloading over an electronic network qualifies as a public distribution.8 However, neither the courts nor the Copyright Office has yet endorsed a “digital-first sale doctrine” to allow users to retransmit digital copies over the Internet.9

The right to perform the work publicly. To “perform” a work means to recite, render, play, dance, or act it, with or without the aid of a machine.10Thus, a live concert is a performance of a musical composition, as is the playing of a CD on which the composition is recorded.

The right to display the work publicly. To perform or display a work “publicly” means to perform or display it anywhere that is open to the public or anywhere that a “substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered.”11 Transmitting a performance or display to such a place also makes it public. It does not matter whether members of the public receive the performance at the same time or at different times, at the same place or different places. Making a work available to be received or viewed by the public over an electronic network is a public performance or display of the work.12

The law distinguishes between ownership of a copy of a work (even the original copy, if there is only one) and ownership of the copyright rights. A museum that acquires a painting does not thereby automatically acquire the right to reproduce it. Libraries and archives commonly receive donations of manuscripts or letters, but they generally own only the physical copies and not the copyright rights.13

4. Relevant Copyright Exceptions

Copyright rights are not absolute; they are subject to several limiting principles and exceptions. Those principles most relevant to the creation of a digital archive are as follows:

  1. The exception for certain archival and other copying by libraries and archives in section 108 of the Copyright Act. Libraries and archives are permitted to make up to three copies of an unpublished copyrighted work “solely for purposes of preservation and security or for deposit for research use in another library or archives.”17 The work must be currently in the collections of the library or archives, and any copy made in digital format may not be made available to the public in that format outside the library premises.Libraries and archives may also make up to three copies of a published work to replace a work in their collections that is damaged, deteriorating, or lost, or whose format has become obsolete, if the library determines that an unused replacement cannot be obtained at a fair price. Copies in digital format, like those of unpublished works, may not be made available to the public outside the library premises.18Even if copying a work is not expressly allowed by section 108, it may still be permitted under the fair-use doctrine. However, the privileges under section 108 do not supersede any contractual obligations a library may have with respect to a work that it wishes to copy.19
  2. Fair use is the copyright exception with which people are often most familiar. Whether a use is “fair” depends on the facts of a particular case. Four factors must be evaluated when such decisions are made. The first factor is the purpose and character of the use. Among the considerations is whether the use is for commercial or for nonprofit educational purposes. Works that transform the original by adding new creative authorship are more likely to be considered fair use than those that do not; however, even a reproduction can be considered a fair use in some circumstances. The second factor is the nature of the copyrighted work. The scope of fair use is generally broader for fact-based works than it is for fanciful works, and broader for published works than for unpublished ones.20 The third fair use factor is the amount and substantiality of the portion used. Generally, the more that is taken, the less likely it is to be fair use, but there are situations in which making complete copies is considered fair.21 The fourth factor is the effect on the potential market for or value of the copyrighted work. A use that supplants the market for the original is unlikely to qualify as fair.Certain uses are favored in the statute; they include criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, and research. A nonprofit digital archive for scholarly or research use, for example, would be favored by the law. However, favored uses are not automatically deemed fair, and other uses are not automatically deemed unfair. The four factors discussed earlier must be evaluated in each case.Some users become frustrated because there is no magic formula to determine whether a use is fair. However, the same flexibility that sometimes makes it difficult to predict whether a use will be considered fair also allows the statute to evolve through case law with new circumstances and new types of uses. A statute that provided greater certainty would inevitably be more rigid.
  3. Section 117 allows the owner of a copy of a computer program to make an archival copy of that program.22 This section, however, applies only to computer programs, not to all works in digital form.

5. Copyright Requirements

Those who are not specialists in the field tend to confuse two processes: registration of copyright and mandatory deposit of copyright-protected works (discussed in the next section). A copyright owner is not required to register his or her copyright or to use a copyright notice to establish or maintain copyright in a work. This fact is often misunderstood, particularly by people using the Internet, who sometimes assume that if there is no copyright notice, work is in the public domain. Copyright owners are required to register their copyrights before filing an infringement suit if the work is of U.S. origin. The law contains incentives designed to motivate copyright owners to file a timely registration; however, many copyright owners choose not to register for a variety of reasons. In any case, one should not assume that the Copyright Office has a record of all copyright-protected works.

6. Mandatory Deposit

Copyright owners are required to deposit two copies of the “best edition” of any work published in the United States with the Copyright Office. This requirement, which was enacted for the benefit of the Library of Congress (LC), must be fulfilled within three months of the date of publication.24 Even if the copyright owner does not register the copyright in her work, she must comply with the deposit requirement. Failure to do so does not affect the status of the copyright, but it can result in fines.25 LC may also demand copies of specific “transmission programs,” even though they are technically unpublished, or it may make a copy itself from the transmission.26 A transmission program is “a body of material that, as an aggregate, has been produced for the sole purpose of transmission to the public in sequence and as a unit.”27

7. Copyright Ownership

The human creator of a work is generally the author and initial owner of the copyright.34 Copyright rights can be transferred, either separately or together. For example, someone can transfer the right to reproduce a work without transferring the right to create a derivative work. A transfer of copyright ownership, including the grant of an exclusive license, must be in writing and signed by the grantor.35 Nonexclusive licenses need not be in writing but frequently are.

A copyright license can span a very long period of time. Complicated issues can arise when new forms of exploitation are developed during the license term. Usually, the grantor will claim she or he did not intend to include the new rights in the license, and the grantee will claim the opposite. For example, Random House, Inc. v. Rosetta Books LLC36 is an ongoing case concerning whether the words “in book form” in publishing contracts entered into before the advent of electronic publishing cover electronic book rights. Contending that electronic book rights were not covered by their existing publishing agreements with Random House, the authors entered into new agreements with Rosetta to publish their books in electronic form. Recently, a federal court in New York agreed with the authors and refused to enter the preliminary injunction sought by Random House to stop Rosetta from publishing the electronic books. Decisions in these “new-use” cases usually hinge on the wording of the contract and industry practices at the time the contract was entered.37

What does someone do if she wants to use a work and is unable to identify and locate the copyright owner? Some users are reluctant to use anything without clear rights, but others will engage in risk assessment. For example, if the work is to be used in a database from which it can be removed promptly if there is a complaint, the user may decide to take the risk.43 If, by contrast, the work is a short story that is to be the basis of a new screenplay and motion picture, and the investment could be lost if the copyright owner learned of and objected to the project, the user may decide the risk is too great and choose not to proceed.

8. Unpublished Works

A work is “published” when copies are distributed to the public by sale or other transfer of ownership or by rental, lease, or lending. Publicly performing or displaying a work does not constitute publication.44 The law makes several distinctions between published and unpublished works. The most significant distinction in this context relates to the treatment of published and unpublished copies for purposes of preservation under section 108 (discussed in section 4) and fair use. The scope of fair use is narrower for unpublished works than for published works, although the fact that a work is unpublished does not itself bar fair use. The unpublished nature of the manuscript of President Ford’s memoirs was a significant factor in the U.S. Supreme Court’s decision that The Nation was liable for copyright infringement in publishing excerpts of those memoirs (quotations that totaled about 300 words).45

9. Digital Millennium Copyright Act

The Digital Millennium Copyright Act (DMCA) prohibits the act of circumventing a technological measure that “effectively controls access” to a work protected by copyright.46 Technological access controls are mechanisms such as passwords or encryption that prevent viewing or listening to work without authorization.

The law also contains two provisions that prohibit trafficking in devices that circumvent technological measures of protection. The first provision is aimed at devices and services that circumvent access controls. Specifically, it prohibits manufacturing, importing, offering to the public, or providing or otherwise trafficking in technologies, products, or services

  • that are primarily designed or produced to circumvent a technological measure that effectively controls access to a copyrighted work;
  • that have only limited commercially significant purpose or use other than to circumvent such controls; or
  • that are marketed for use in circumventing such controls.47

The second, similarly worded provision is a prohibition against trafficking in devices or services to circumvent rights controls.48 Technological rights controls are mechanisms that restrict copying the work or playing it in a particular environment without authorization. There is no prohibition on the act of circumventing rights controls. Legislators believed if copies made as a consequence of circumventing rights controls were excused by copyright exceptions or privileges, there should be no liability for the circumvention. If, on the other hand, such copies are infringing, the rights holder has a claim under the copyright law.

There are several exceptions to the ban on circumventing access controls and a few exceptions to the antitrafficking ban. There is no exception for archiving, nor is there a general “fair use”-type exception written into the statute. The law does, however, include an administrative procedure for creating new exceptions. Every three years the Librarian of Congress, upon the recommendation of the Copyright Office, is directed to determine through a rule-making proceeding whether users of any particular class of copyrighted works are, or are likely to be, adversely affected in their ability to make non-infringing uses of those works by the prohibition against circumventing technological access controls. If so, the Librarian is to lift the prohibition on circumventing access controls for that particular class of works for the ensuing three-year period.

10. International Issues

At least three categories of international issues must be considered in planning a digital archive. First, international treaties place certain constraints on the United States’ ability to create exceptions to copyright protection or to impose requirements on copyright owners. Second, legal and logistical uncertainties could make it difficult for a copyright owner to obtain redress for copyright infringements committed abroad. These uncertainties should be considered in deciding which works should be included in the digital archive and from where they will be accessible. Third, a digital archive that permits online access outside the United States could itself be vulnerable to suit by foreign copyright owners whose works are included.

Conclusion

Copyright issues are a problem in the digital age, particularly when it comes to copyright infringement and avoidance. The easiest way to know what is and isn’t legal is simply to follow the rules stated on a work’s copyright page.

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