AMIA/IASA 2010 OPENING THE ARCHIVES FOR ACCESS: UNDERSTANDING COPYRIGHT BARRIERS Jay Fialkov WGBH Educational Foundation Boston, Massachusetts

Copyright Law Background The United States Constitution authorized Congress to enact laws "to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries..." The twin goals of copyright law are: 1. provide an economic incentive to authors to create original works; and 2. protect the public's interest in having access to creative works. The efforts of Congress to address these sometime competing goals are reflected in the copyright law's grant of broad exclusive rights to the copyright owner, subject to certain specified limitations on those rights. “Publication without easy access would defeat the social purpose of copyright.” Judge Benjamin Kaplan, An Unhurried View of Copyright

Works Protected by Copyright Copyright protects original works of authorship fixed in any tangible medium of expression. Rights in ideas are not protected by copyright. Copyright protects only the actual “ expression ” of ideas. Under the current Copyright Law, it is not necessary for a work to be published in order to be protected by copyright. (Publication was a condition for copyright protection under prior law.) It is not necessary for a work to be registered with the US Copyright Office to be protected, though copyright registration offers valuable benefits.

Categories of Works Protected by Copyright: Literary works Musical works (i.e, songs/compositions) Sound recordings Sound recordings fixed before February 15, 1972 are not protected under federal copyright law, though they may be protected under state law. The Copyright Office is now studying whether to extend federal copyright protection to pre-1972 recordings. Dramatic works Pantomimes and choreographic works Pictorial, graphic and sculptural works Motion pictures and other audiovisual works Architectural works

Ownership & Transfer of Copyrights The copyright in a work is initially owned by the “ author ” of the work. There are special rules for co-authors of “ joint works. ” For a “ work made for hire, ” the employer or commissioning party is considered the “author. ” The owner of a copyright has the right to transfer the copyright to another party, or to license limited rights in the copyrighted work.

Exclusive Rights In Copyrighted Works Section 106 of the Copyright Law provides that the owner of a copyrighted work has the exclusive right to: 1. reproduce the work (includes digitizing the work) 2. prepare derivative works 3. distribute copies of the work (includes making a copy of the work available online) 4. perform the work publicly Owners of a copyright in a sound recording generally do not have the exclusive right to publicly perform the recording. However, Section 106 of the Copyright Law was amended to provide that a copyright owner now has the exclusive right to perform an audio-only sound recording publicly "by means of a digital audio transmission," such as on the internet. 5. display the work (includes displaying the work on a computer screen)

Limitations on Exclusive Rights For public policy purposes, the Copyright Law includes exceptions to the exclusive rights of the copyright owner. These exceptions include: 1. Fair Use 2. Archival exception 3. First sale doctrine 4. Compulsory mechanical licenses 5. Special provisions relating to public broadcasters

Infringement of Copyright Infringement of copyright involves a violation of the exclusive rights of a copyright owner. Infringement is proved when two elements are established: 1. Ownership of a valid copyright 2. Copying of original elements of the work. Circumstantial evidence of copying can be shown when: 1. The alleged infringer had access to the copyrighted work 2. There is substantial similarity between the works The Copyright Law provides for substantial penalties for copyright infringement, including “ actual damages ” and “ statutory damages. ”

Duration of Copyright Protection For works created on or after January 1, 1978: the period of copyright protection is for the author's life plus an additional period of 70 years after the author's death for "works made for hire," copyright protection endures for a period of 95 years after first publication, or 120 years after creation, whichever expires first For works created prior to January 1, 1978 under the prior copyright law enacted in 1909: federal copyright protection for works created before January 1, 1978 began on the date of publication (or registration if earlier), lasted for 28 years, and then could be renewed for an additional 28-year period. for a copyrighted work that was in its renewal period as of January 1, 1978, the term of copyright protection was by the current Copyright Law to last for 75 years from the year the copyright first became effective (95 years for works published after 1922). Works published before 1923 are no longer protected by copyright.

Public Domain Works not protected by copyright are sometimes referred to as in the “public domain.” International Complications International Complications The Copyright Law has counterparts in most other countries and is tied to foreign counterparts by international treaties (such as the Berne Convention) that combine to produce, in effect, a network of world copyright laws. The term and scope of copyright protection may vary from country to country.

Obtaining Permission to Use a Copyrighted Work In order to use a copyrighted work in a way that is not specifically permitted by the Copyright Law it is necessary to acquire a "license," or permission, from the copyright owner. The key terms of any license are likely to include: 1. Description of the licensed material 2. Scope of license and permitted uses of licensed material or restrictions on use 3. Term and territory of license 4. Compensation 5. Credit 6. Representations, warranties and indemnities

Special Copyright Issues for Archivists Identifying and locating copyright owners - Congress is considering issues relating to so- called “ orphan works” whose owners may be impossible to identify and locate. For pictures and artwork, including photographs, paintings and illustrations, sometimes it may be necessary to obtain permission not only from the copyright owner of the original artwork, but also from the photographer or other owner (such as a museum) of the particular image of such artwork that is used. Rights in music generally refer to the distinct rights in a musical composition (song) and a particular sound recording of such composition, which rights commonly are held by separate parties. Typically, a "music publisher" owns rights in songs, and a "record company" owns rights in recordings. It is possible that a song or recording may be co- owned by more than one party, and it may be necessary to acquire rights from each of the co-owners. Using film footage may involve acquiring rights in various creative elements included in the footage, such as music, photographs, talent, etc. Some third party licenses are issued on a "quitclaim" basis, which means the owner grants permission to use the footage, but the owner does not claim to have, and does not grant to the licensee, rights in any creative elements in the footage. In such cases, the producer/licensee must obtain separately all required rights in underlying creative elements (including rights and payments as may be required under applicable agreements with talent unions/guilds). Creative Commons and alternative licenses

The Art of Acquiring Licenses 1. Know what material you desire to use. 2. Understand the rights involved. Perhaps the intended use of the desired material does not require you to negotiate for a license. Maybe the desired material is in the public domain and not protected by copyright. Is the desired use a fair use? 3. Know what rights you desire to acquire. How will the material be used? What media will the license cover, and what distribution channels will be used? What will be the term and territory? Are exclusive rights required? Do you need to alter or modify the licensed material (such as by cropping or colorizing a photo)? Do you need rights to use a contributor’s name, likeness and bio? Do you need ancillary rights for use in other media or merchandise? Do you need the right to use the material for promotion purposes? 4. Find out who owns the rights you desire to acquire. In this regard, you can get help from various source, including the Copyright Office, professional search agencies, and, for music, the performing rights societies and The Harry Fox Agency, most of which are accessible on-line. 5. Recognize the value of the material you desire to license, understand the perspective of the party you are negotiating with, and educate the other party about your intended use. 6. Allow enough time to complete the process.

Bibliography Michael C. Donaldson, Clearance & Copyright, Silman-James Press * Peter B Hirtle, Emily Hudson, and Andrew T. Kenyon, Copyright and Cultural Institutions, Cornell University Library - available online at Copyright_final_RGB_lowres-cover1.pdf Al Kohn and Bob Kohn, Kohn on Music Licensing, 3rd Edition, Aspen Law and Business Richard Stim, Getting Permission: How to License and Clear Copyrighted Materials Online and Off, Nolo For a useful chart of the term of Copyright Term and the Public Domain in the United States, see: