Tuesday, October 24, 2006

Copyright (second of two articles)

Yesterday I posted an article I had written for the September/October issue of WNYLRC Watch, a publication of the Western NY Library Resources Council. I've been working with WNYLRC for more than a year on a grant funded digitization planning project, including writing articles read by their members. Below is the second article on copyright that will appear in the November/December issue.

In the previous issue of WNYLRC Watch (September/October), we looked at copyright and the rights of copyright holders. Now let us look at the copyright clearance process.

There are two keys to successfully navigating the copyright clearance process. The first key is being methodical. This is not a process where one can skip steps or follow a whim. The second key is understanding and following the Copyright Law (Title 17, U.S. Code). It can be very helpful to go to the law itself as well as commentary when navigating the process. Be sure that you understand the letter of the law and that you do not make assumptions. The language in the Copyright Law can be particular, so be sure that you do not interject words that do not exist there.

With those two keys for success in mind, the steps to the copyright clearance process are:

  • Determine the intellectual property (IP) issues
  • Determine if permission is necessary
  • Identify the owner's rights involved
  • Identify owner of the rights you are seeking
  • Request permission

What intellectual property issues are involved? Is it copyright only or are there other issues (e.g., trademark)? If the issue is copyright, are you seeking to make a copy or a derivative work? Do you want to display the work? These are rights that the copyright owner has and no one else.

Are there issues surrounding privacy or publicity? Those are not -- strictly speaking intellectual property issues -- but now would be a good time to identify them. While copyright is governed by federal law, privacy and publicity are governed by state law. Every citizen has rights of privacy, but those rights generally end at the person's death. For example, I cannot display the private letters of someone without that person's permission. However, the right of publicity does not necessarily end at a person's death. Consider, for example, the right to use Elvis Presley’s image. The right to use his image is still controlled by his family.

Is permission necessary? Thinking only about copyright, was the material copyrighted? If yes, has it since passed into the public domain? Peter Hirtle's chart is a good place to begin to understand what might be in the public domain (www.copyright.cornell.edu/training/copyrightterm.pdf).

One thing to consider when looking at the exceptions, especially Fair Use, is that you are determining that you can use the exception. The determination is not made by the copyright holder. The exception is only proved to be correct if the outcome of a lawsuit determines it to be so (this is especially true with Fair Use).

If you determine that you do not need permission in order to use the work, and there are no other issues in your way (e.g., privacy), then go ahead and digitize the materials. It would be good practice to keep track of how you came to that decision in case there are any questions.

If you decide that you need to obtain permission, what rights do you require? When digitizing materials, three rights come immediately into play: the right to reproduce the work, the right to create a derivative work, and the right to display the work. Depending on what you are doing, there may be other rights for which you will need permission.

When thinking about the rights you require, now would be a good time to consider how long -- months or years -- you want those rights. That information will be important to communicate with the rights owner and may impact the cost of obtaining those rights. For example, a rights owner might allow you to digitize and use the materials for a short time for free, but require a licensing fee for longer use.

It is doubtful that many digitization projects budget for licensing fees. Most will only use materials that are available without paying a fee. However, you may come across something so important that you will want to pay the licensing fee, so be ready-- if necessary -- to find the money for it.

Now that you know what rights you want, the next step is to identify the current owner of those rights. First ask, what rights does the current owner of the material have? For example, does the current owner have the right to reproduce the work, create derivative works, distribute the work, publicly perform the work, or display the work? Does the current owner have any of those rights, or some of the rights, or all of those rights? Those are the rights granted to the creator of the work under Copyright Law. The creator can give any or all of those rights to someone else, during his lifetime or upon his death. Have those rights been passed to the current owner of the original work? Hopefully the current owner of the work will know what rights she has and can prove them. Be sure to ask the person specifically about the rights that you will need. If the person grants permission to you, obtain the permission in writing so that you have documentation.

If the current owner of the material does not own all of the rights that you seek, you will have to track down the other rights owner(s) and negotiate those rights. You may think that is unusual for the creator of a work to split the rights and give them to different parties, but it is not. You can only hope, that if this has happened, that it is clearly documented somewhere.

Finally, you must request permission from whoever the rights owner is. Please be sure to obtain permission in writing, so that you have documented proof. You might place that rights information in the metadata.

What if you cannot find the rights owner (an "orphaned work") and thus cannot obtain permission? Can you digitize the materials anyway? There is a risk of litigation if you digitize the materials without proper permission. You will need to evaluate the risk as well as you ability to tolerate such a risk.

I have presented the steps briefly, but likely you can see that each step will take time and effort. Indeed copyright clearance can take a long time. Do you have the time, staff and budget to do it? You may decide upfront that you do not have time for this process. It is also likely that you will get into the process itself and then determine that you do not have the time to devote to it. If you cannot devote the time needed, then re-examine your project to see if digitizing only the public domain materials will yield a worthwhile project. You may also find some items where permission could be granted quickly (perhaps a copyright holder that is sympathetic to your project).

Remember that the two keys to this process are being methodical and having a firm understanding of what you are doing. Read articles and books on this topic and attend workshops. Take time to obtain the information you need in order to navigate this process well. The time you spend learning will help you be methodical and give you the confidence you will need for the task at hand.

Resources: This list includes the resources from the Sept/Oct issue of WNYLRC Watch.

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