1. Copyright for Digital Collections
Ana Enriquez
April 20, 2017
This presentation was prepared by Ana Enriquez in October 2016 and revised in April 2017.
It is licensed under the Creative Commons CC-BY 4.0 International License.

2. Today’s slides are available
On Sched
Or by ing Ana at
This presentation was prepared by Ana Enriquez in October 2016 and revised in April 2017.
It is licensed under the Creative Commons CC-BY 4.0 International License.

3. Plan for Today
Copyright framework and rationales for digital collections (45 minutes)
Questions (15 minutes)
Break (15 minutes)
Small-group discussion of hypotheticals (30 minutes)
Full-group discussion of hypotheticals (30 minutes)
Please interrupt any time with questions!
This presentation was prepared by Ana Enriquez in October 2016 and revised in April 2017.
It is licensed under the Creative Commons CC-BY 4.0 International License.

4. Framework Is the work protected by copyright?
Would your use implicate one of the exclusive rights given to copyright holders?
No more on this today. It rarely comes into the analysis for digital collections.
Who holds the copyright? Have they made any licenses that would permit your use?
Do any user’s rights, such as fair use, apply?
Resource: U-M Library Copyright Basics guide
This presentation was prepared by Ana Enriquez in October 2016 and revised in April 2017.
It is licensed under the Creative Commons CC-BY 4.0 International License.

5. Common Copyright Rationales for Digital Collections
The project involves public domain materials.
The project is permitted by fair use.
The hosting institution holds copyright in the materials.
The hosting institution has already received permission from a rightsholder that covers part or all of the project.
The hosting institution will seek permission from a rightsholder to do the project.
Note: These rationales impact the level of access provided, the rights statement that applies to the materials, and how you respond to permission requests from patrons. More than one may apply to a given collection.
This presentation was prepared by Ana Enriquez in October 2016 and revised in April 2017.
It is licensed under the Creative Commons CC-BY 4.0 International License.

6. Framework + Rationales
1. Is the work protected by copyright?
No: The project involves public domain materials.
3. Has the rightsholder made any licenses that would permit your use?
Yes: The hosting institution holds copyright in the materials.
Yes: The hosting institution has already received permission from a rightsholder that covers part or all of the project.
No: The hosting institution will seek permission from a rightsholder to do the project.
4. Do any user’s rights, such as fair use, apply?
Yes: The project is permitted by fair use.
This presentation was prepared by Ana Enriquez in October 2016 and revised in April 2017.
It is licensed under the Creative Commons CC-BY 4.0 International License.

7. Copyright automatically covers works of authorship that are
1. Is the work protected by copyright? --Is it the sort of thing copyright protects?
Copyright automatically covers works of authorship that are
Original AND
Fixed in a tangible medium of expression.
To qualify as original, a work must
Possess a modicum of creativity AND
Be the independent creation of its author.
Copyright does not cover
Inventions, facts, ideas, etc.
This presentation was prepared by Ana Enriquez in October 2016 and revised in April 2017.
It is licensed under the Creative Commons CC-BY 4.0 International License.

8. 1. Is the work protected by copyright? --Is it currently protected?
In the U.S., copyright protection must be finite.
A work created in the U.S. today will be protected by copyright in the U.S. until 70 years after the death of the author.
Under earlier copyright regimes, there were many other ways a work could enter the public domain.
To assess U.S. public domain status, I recommend:
Cornell’s Copyright Term and the Public Domain in the United States
Berkeley’s Is it in the Public Domain?
This presentation was prepared by Ana Enriquez in October 2016 and revised in April 2017.
It is licensed under the Creative Commons CC-BY 4.0 International License.

9. Rationale: The project involves public domain materials.
Examples:
The white pages of Michigan phone books
Facts arranged in a conventional manner: Not the sort of thing copyright protects
First editions of Nathaniel Hawthorne’s works
Works published in the United States prior to 1923: Not currently protected
Photographs of 1850s paintings
Paintings: Not currently protected
Faithful 2D reproductions of 2D public domain works: Not the sort of thing copyright protects
(This is true for scans of phone books and Hawthorne works as well.)
This presentation was prepared by Ana Enriquez in October 2016 and revised in April 2017.
It is licensed under the Creative Commons CC-BY 4.0 International License.

10. Rationale: The project involves public domain materials.
This presentation was prepared by Ana Enriquez in October 2016 and revised in April 2017.
It is licensed under the Creative Commons CC-BY 4.0 International License.

11. 3a. Who holds the copyright?
The first holder of the copyright is the author.
The creator(s) of the work OR
In some cases, the creator’s employer:
If the work was prepared by an employee acting within the scope of employment OR
Is one of the nine types of works that a contract can turn into a work made for hire, and a contract was signed before the work was created.
Authors can transfer or license any of their exclusive rights, including portions of those rights.
A joint author can give non-exclusive licenses unilaterally, but all joint authors must agree in order to transfer copyright.
To be effective, a transfer must be in writing and must be signed either by the rightsholder or by the rightsholder’s authorized agent.
Copyrights can also pass via a will or intestate succession laws.
When copyrights are transferred “by operation of law,” written agreements are not required.
Transferring a physical object does not transfer copyright in that object.
This presentation was prepared by Ana Enriquez in October 2016 and revised in April 2017.
It is licensed under the Creative Commons CC-BY 4.0 International License.

12. 3b. Has the rightsholder made any licenses that would permit your use?
For example:
Gift or purchase agreements
Site licenses
E.g., licenses for library resources
Public licenses
In a public license, the rightsholder is the licensor, and everybody else is the licensee.
Creative Commons licenses are public licenses.
All Creative Commons licenses require the user to attribute the work to its author. (CC’s Public Domain Dedication does not.)
New agreement
Unlike transfers, licenses do not have to be in any particular form in order to be valid.
Best case: Get and retain a signed copy of a pre-reviewed form agreement.
In some cases, an is likely sufficient. Make sure others will be able to find it, though.
This presentation was prepared by Ana Enriquez in October 2016 and revised in April 2017.
It is licensed under the Creative Commons CC-BY 4.0 International License.

13. Rationale: The hosting institution holds copyright in the materials.
Examples:
Photographs taken by university employee photographers
Photographs of 3D public domain items, taken by the employee preparing the exhibit/collection
This presentation was prepared by Ana Enriquez in October 2016 and revised in April 2017.
It is licensed under the Creative Commons CC-BY 4.0 International License.

14. Rationale: The hosting institution holds copyright in the materials.
This presentation was prepared by Ana Enriquez in October 2016 and revised in April 2017.
It is licensed under the Creative Commons CC-BY 4.0 International License.

15. Rationale: The hosting institution has already received permission from a rightsholder.
Examples:
Donor gave her own unpublished papers to the institution.
In the gift agreement, she applied a CC BY-NC-SA license. OR
In the gift agreement, she gave the institution a non-exclusive license for all the rights (reproduction, preparation of derivative works, distribution, public performance, and public display) in her donated papers.
This presentation was prepared by Ana Enriquez in October 2016 and revised in April 2017.
It is licensed under the Creative Commons CC-BY 4.0 International License.

16. Rationale: The hosting institution will seek permission from a rightsholder to do the project.
Example:
The library (or stakeholder) holds a work by a local artist. The library contacts the artist, explains its digitization plans, and receives authorization from him.
This presentation was prepared by Ana Enriquez in October 2016 and revised in April 2017.
It is licensed under the Creative Commons CC-BY 4.0 International License.

17. Rationale: The hosting institution will seek permission from a rightsholder to do the project.
This presentation was prepared by Ana Enriquez in October 2016 and revised in April 2017.
It is licensed under the Creative Commons CC-BY 4.0 International License.

18. 4. Do any user’s rights, such as fair use, apply?
Fair use (Section 107)
Reproduction by libraries and archives (Section 108)
First sale (Section 109)
Classroom use (Section 110)
Reproduction for the blind or other people with disabilities (Section 121)
Etc.
This presentation was prepared by Ana Enriquez in October 2016 and revised in April 2017.
It is licensed under the Creative Commons CC-BY 4.0 International License.

19. 4. Do any user’s rights, such as fair use, apply?
“. . . the factors to be considered shall include—
the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
the nature of the copyrighted work;
the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
the effect of the use upon the potential market for or value of the copyrighted work.”
To assess fair use, I recommend:
Columbia’s Fair Use Checklist
Stanford’s Summaries of Fair Use Cases
US Copyright Office Fair Use Index
This presentation was prepared by Ana Enriquez in October 2016 and revised in April 2017.
It is licensed under the Creative Commons CC-BY 4.0 International License.

20. 4. Do any user’s rights, such as fair use, apply?
purpose and character
Providing context, criticism, and comment favors fair use.
Educational/scholarly purpose favors fair use.
nature of the copyrighted work
If the work is unpublished, that weighs against fair use. (However, using an unpublished work can still be fair.)
amount and substantiality of the portion used
Using the entire work or the heart of the work weighs against fair use.
market effect
Providing a substitute for licensed copies of the work weighs against fair use.
If a license is available and it’s traditional to license works for what you’re doing, not licensing the work weighs against fair use.
This presentation was prepared by Ana Enriquez in October 2016 and revised in April 2017.
It is licensed under the Creative Commons CC-BY 4.0 International License.

21. Rationale: The project is permitted by fair use.
Example:
An archival collection contains unpublished materials whose authors died after 1946 as well as a few published newspaper clippings from the 1960s. After examining the collection and the metadata, you determine there is no licensing market for the works in the collection.
This presentation was prepared by Ana Enriquez in October 2016 and revised in April 2017.
It is licensed under the Creative Commons CC-BY 4.0 International License.

22. Rationale: The project is permitted by fair use.
Note: This collection also contains public domain materials.
This presentation was prepared by Ana Enriquez in October 2016 and revised in April 2017.
It is licensed under the Creative Commons CC-BY 4.0 International License.

23. A couple more questions
The rationales discussed so far address putting materials into a digital collection. What about:
Putting a Creative Commons license or a DPLA Rights Statement on those materials?
Responding to permissions requests from patrons?
This presentation was prepared by Ana Enriquez in October 2016 and revised in April 2017.
It is licensed under the Creative Commons CC-BY 4.0 International License.

24. Putting one of the Creative Commons licenses on the materials
If the copyright holder has already licensed an item under one of the Creative Commons licenses, indicate that.
If you have permission from the copyright holder to apply one of the Creative Commons licenses, go ahead.
If the hosting institution holds the copyright, it can put one of the Creative Commons licenses on it.
When a Creative Commons license is not appropriate, a DPLA Rights Statement may be.
This presentation was prepared by Ana Enriquez in October 2016 and revised in April 2017.
It is licensed under the Creative Commons CC-BY 4.0 International License.

25. Putting one of the DPLA Rights Statements on the materials
In Copyright
In Copyright - EU Orphan Work
In Copyright - Educational Use Permitted
In Copyright - Non-Commercial Use Permitted
In Copyright - Rights-holder(s) Unlocatable or Unidentifiable
No Copyright - Contractual Restrictions
No Copyright - Non-Commercial Use Only
No Copyright - Other Known Legal Restrictions
No Copyright - United States
Copyright Not Evaluated
Copyright Undetermined
No Known Copyright
This presentation was prepared by Ana Enriquez in October 2016 and revised in April 2017.
It is licensed under the Creative Commons CC-BY 4.0 International License.

26. CC Licenses, DPLA Rights Statements, and copyright rationales
The project involves public domain materials.
Use one of the “No Copyright” rights statements or the CC Public Domain Mark for public domain items.
The project is permitted by fair use.
Use an appropriate “In Copyright” rights statement for items you have reviewed at the item level.
For other items: Copyright Not Evaluated? (Not a great fit.)
The hosting institution holds copyright in the materials.
Use an appropriate “In Copyright” rights statement or Creative Commons license.
The hosting institution has already received permission from a rightsholder that covers part or all of the project.
The hosting institution will seek permission from a rightsholder to do the project.
This presentation was prepared by Ana Enriquez in October 2016 and revised in April 2017.
It is licensed under the Creative Commons CC-BY 4.0 International License.

27. Responding to permissions requests from patrons
Do not grant or deny permission unless your institution holds the rights and you have authority to grant permission.
Where possible, refer patrons to the rights statement for the collection.
Point patrons to resources on fair use and the public domain as appropriate. Keep in mind that the law in these areas varies from country to country.
This presentation was prepared by Ana Enriquez in October 2016 and revised in April 2017.
It is licensed under the Creative Commons CC-BY 4.0 International License.

28. Topics we didn’t discuss today
Ethical or legal issues other than copyright, such as those posed by
Private materials (e.g., educational, medical, or criminal records),
Culturally sensitive materials (e.g., secret or sacred materials), or
Politically sensitive materials (e.g., photographs of protesters).
Technical issues, such as
What materials are appropriate for digitization?
What platform is appropriate for a particular collection?
Etc.
This presentation was prepared by Ana Enriquez in October 2016 and revised in April 2017.
It is licensed under the Creative Commons CC-BY 4.0 International License.

29. Questions?
This presentation was prepared by Ana Enriquez in October 2016 and revised in April 2017.
It is licensed under the Creative Commons CC-BY 4.0 International License.

30. Hypothetical
This presentation was prepared by Ana Enriquez in October 2016 and revised in April 2017.
It is licensed under the Creative Commons CC-BY 4.0 International License.

31. Hypothetical Digital Collection
You would like to digitize a personal archive held by your institution and host it as digital collection. The digital collection could be fully open to the public, or you could restrict certain items to on-site or authenticated use. The person who created the archive was born in 1895 and died in The archive was donated to the institution by the person’s estate in The archive includes the following items (as well as similar items not listed here):
Organizational records for a business founded by the person, dated 1920 to 1960
Photographs whose subjects, format, and condition indicates they were taken between 1893 and 1975
A 1968 issue of Time magazine that includes a cover story on the person
Journals the person wrote sporadically from 1940 to 1975
Newspaper clippings that the person saved
Postcards and letters other people sent to the person
A manuscript of a book the person published in 1960
How will you address the copyright issues for each of these items? Will you open the collection to the public, or will you restrict certain items to on-site or authenticated use? What rights statement will you apply to each item? Are there any facts missing that would impact your decision? For each of the items you decide to put online, decide how you would respond to a permissions request from a patron.
This presentation was prepared by Ana Enriquez in October 2016 and revised in April 2017.
It is licensed under the Creative Commons CC-BY 4.0 International License.