1. Copyright Law for Archivists Georgia Harper University of Texas System

2. Overview Purpose of copyright Copyright basics Preserving & accessing archival materials Statutory options Licensing Rights management Lobbying Congress

3. Copyright Basics What does copyright protect? What’s in the public domain? What are owners rights? What are users rights? Library archival rights Works in their last 20 years of protection

4. What Does Copyright Protect? Original expression - a person’s unique way of saying something fixed in a tangible medium Only requires minimum creativity Does not protect facts Does not protect ideas, systems, processes

5. When Does it Begin? Today: protection starts at the moment of fixation in a tangible medium It’s automatic Notice is not required Registration carries certain benefits but is only required to bring a lawsuit

6. When Does It End? Works published before 1978 Publication + 95 years or 28 years if published before 1964 and not renewed Works created during/after 1978 Life of author + 70 Works for hire: Publication + 95/creation + 120 Works unpublished before 1978 Life of author + 70

7. Foreign Works Territoriality, national treatment and choice of law Bilateral and multi-lateral treaties Adherents provide similar sets of rights Wide variations still exist Rule of the “shorter term”

8. Restored Copyrights Certain foreign works have had their copyrights “restored” by the URAA Not in public domain on Jan. 1, 1996 Or date of adherence to WTO or Berne First published in an eligible country One rights holder national or domiciled in eligible country Not published in US w/in 30 days

9. Examples Showing How Works Qualify to be Restored Composition created in 1920 Recorded in London in 1935 50-year term in UK Work is public domain in UK in 1985 On Jan. 1, 1996, work is in pd in UK, so not eligible for restored copyright in US If recorded in 1947: restored in US

10. Examples, continued Film created in 1983 in China On Jan. 1, 1996, work is still protected in China, so copyright is restored in US Term is complicated: Law of work’s country of origin likely determines authorship Authorship determines term in US (life of author plus 70 or 95 years from publication)

11. The Public Domain US works published in 1922 or earlier Pd compositions recorded in foreign countries in 1945 or earlier (50-year term) Pd compositions recorded in US before 1972 Note possible state law claims Abandoned and waived copyrights Some foreign works may be restored

12. Exclusive Rights of the Copyright Owner Make copies Create derivative works Distribute, display and perform works Publicly Artists’ moral rights Integrity/attribution This is not the only way to provide an incentive to create! It’s just the way we’ve been doing it for 200 years.

13. Exemptions that Promote Public Uses Fair use (17 USC 107) Library’s special privileges (108) First sale doctrine (109) Educational performances/displays (110) and the TEACH Act Modifications for blind and disabled (121)

14. Archival Rights and Access Section 108 (b) Section 108 (c) Section 108 (h)

15. Section 108 (b) Unpublished works For preservation and security or deposit for research in another library We must possess copy Cannot make digital archive copies available off library premises

16. Section 108 (c) Published works To replace damaged, deteriorating, lost and stolen works and works whose format is obsolete We must determine that an unused replacement is not available at a fair price Cannot make digital archive copies available off library premises

17. Section 108 (h) “Last 20 years” rule Libraries may distribute published works for scholarship and research Work is not enjoying commercial exploitation Most works: 1923 – 1927, inclusive Recordings: pre-1972 Ambiguous application to musical, pictorial, graphic, sculptural & audiovisual works

18. Fair Use and Other Exemptions Fair use Electronic reserves Multimedia projects Distance education TEACH Act

19. Role of Fair Use Fair use embodies a balance of interests Between owner control and public access Between owner control and public’s First Amendment rights Fair use addresses market failures Facilitates good, but uneconomic uses

20. Fair Use Statute 17 USC 107 Criticism, commentary, scholarship, research, news reporting, classroom Four-factor fair use test Character of the use Nature of the material used Amount and importance of part used Effect on market for permission/original

21. Licensing Licenses can supplant law Be vigilant about terms on shrink-wraps and click-ons that strip library, archive or patrons of statutory rights Seize opportunities to negotiate better access than the statute may provide

22. Promoting Patrons’ Use Utilize public Websites to show collections Acquire rights from rights holders Update acquisitions forms Revisit collection restrictions Facilitate permissions process Educate researchers about rights issues

23. Lobbying Congress for Change National Recording Preservation Board Has mandate to study laws that must be changed to make preserved recordings available digitally! Modify premises-only restrictions Clarify that 108 (h) rights apply to all media

24. Summary Identify works in the public domain Others: Digitize and archive in accordance with 108 (b) and (c) No digital distribution to public Last 20 years, distribute digital copies for research and scholarship Consider fair use If no exception: get permission/license Aggressive rights management Lobby Congress to change 108