Handbook for Digital Projects:
A Management Tool for Preservation and Access



V

Overview of Legal Issues for Digitization

Melissa Smith Levine
Legal Advisor, National Digital Library Project
Library of Congress

 

Introduction

This chapter provides an overview of basic copyright concepts and mentions a few of the legal issues to be considered in the course of a digitization project. It serves as a brief introduction to the range of issues that should be considered in any scanning or online project, including concerns that have surfaced as the National Digital Library Program has digitized and mounted selected Library of Congress collections for presentation on the Internet through American Memory. It is necessarily not comprehensive. The issues are complex. There is no simple recipe for identifying and resolving issues related to a particular collection. This discussion is not a substitute for competent legal advice.

In identifying these legal issues, this chapter pays special attention to the reasons for and concepts behind laws to help you recognize possible legal concerns and act responsibly in an arena that is still developing and often grey. Cultural and educational organizations are both creators and users of protected creative products. These organizations often are dependent upon or interwoven with artists, writers, and others who rely on their creative products for their sustenance. Thus, it is critical to take stewardship of intellectual property embodied in collections as seriously as the care of the physical collections. By understanding the legal concepts, you may be better able to apply them to digitizing projects. It is important to understand the reason and policies behind copyright laws in order to make reasonable assumptions about how to deal with making collections available on the Internet where the law is still rapidly evolving. Many of these concepts also will apply to other kinds of projects cultural organizations now routinely undertake to make their collections and activities more widely accessible. These include traditional print publications, licensing, television, radio, and video projects.

The focus here is on United States law and creative works protected under U.S. law. However, certain aspects of international legal concerns will be introduced. The presentation of material on the Internet is inherently international, so it is necessary to at least be aware of the larger context of global access and use of the materials you may make available online. Because so many participants in the School for Scanning courses have been employees of the U.S. federal government, a few concerns unique to federal projects will be raised for their information.

Copyright

Copyright in the U.S. is the exclusive right of authors in their original works. It exists from the moment of fixation in a tangible medium of expression (including software). It includes the right of the author to control the reproduction, copying, display, performance, and other uses of a work.

What Laws Govern Copyright?

In the United States of America, several bodies of law govern copyright. The first is the United States Constitution, Article 1, Section 8, which states: The Congress shall have the power to promote the progress of science and the useful arts by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries. This brief statement in brilliant simplicity implies that the underlying intention of the copyright provision is to move society forward by fostering creativity while also acknowledging the reality of human nature -- that to encourage creators to share their works for the betterment of society, there needs to be a way to permit creators to profit from their work. James Madison described this concept of copyright in the Federalist Papers: The public good fully coincides . . . with the claims of individuals.

The Congress of the United States interprets the Constitution and produces law that is embodied in the United States Code. This is where you will find the current U.S. Copyright Act. The current act is only the latest of several earlier evolutions, each reflecting an attempt to address new technologies and new business models. For example, photography was not a protected medium until the 1870's, and movies were not protected until after the turn of the twentieth century. Since many projects address historical collections, you will need some basic familiarity with the current Copyright Act of 1976 as amended, as well as the earlier Copyright Act of 1909. Rules for calculating the duration of copyright differ, so you may have different results depending upon the nature of the material. Also, the event of publication (which is a term of art here) was of critical importance under the 1909 Act. Although still important under certain circumstances in the 1976 Act, the event of publication no longer determines the duration of copyright as it rigidly did under the earlier law. Publication and calculation of the duration of copyright are addressed below.

Another example of a law made by Congress is the Digital Millennium Copyright Act (DMCA) of 1998. This is a new law, which was made part of the existing Copyright Act in 1998. This extensive legislation continues to be widely discussed, and its far-reaching impact is still being assessed. The DMCA implemented certain international copyright treaty obligations of the United States in conjunction with treaties promulgated under the auspices of the World Intellectual Property Organization (WIPO). Other important areas addressed in the DMCA include:

Many aspects of the DMCA may relate to projects undertaken by the educational and cultural communities. The U.S. Copyright Office prepared a useful summary of the DMCA, which is available on their Website at http://www.loc.gov/copyright. Look for it under the heading of Legislation. The U.S. Copyright Office was also charged with preparing a study on the impact of distance learning on copyright and the possible need for any new or special exemptions. This lengthy study is also available on their site at http://www.loc.gov/copyright/docs/de_rprt.pdf.

The next body of law to consider is case law. This is law created by judges as they interpret the application of the United States Code (and the Copyright Act embodied in the Code) and other laws to a particular set of facts brought before a court by litigants in a legal case. This chapter explores only a few examples, particularly in the area of fair use. Case law addresses applicability of law to a particular set of facts, so outcomes will differ depending on the facts. This is one reason that it is important to identify what you want to do and why and how you plan to do it. These are important steps in the planning process for legal documentation for projects.

Finally, international agreements and treaties such as the International Union for the Protection of Literary and Artistic Works (or the "Berne Convention") may need to be considered. The Berne Convention provides mutuality in copyright protection among member nations (those who have signed the treaty). The U.S. signed on in 1989, but Berne began much earlier in the 1890's. Generally speaking, nations tend not to join until they have a commercial interest in doing so. It was only when the movie and music industry pushed for the U.S. to join Berne in the interest of protecting U. S. works distributed or produced abroad that Congress had reason to seriously consider the matter. Similar commercial pressures in the international arena led to the implementation of the lengthening of copyright terms under U.S. law (to be addressed with copyright duration below).

At a very basic level, the Berne Convention provides mutual protection to member nations, also referred to as national treatment. In other words, member states must treat foreigners on at least the same terms as they treat their own nationals. When it comes to Internet distribution and access, it is in many respects unclear as to how to deal with questions of applicable law and jurisdiction. There is a slowly growing body of law in the U. S. as different states address analogous jurisdictional questions about which state's laws apply to a particular situation. The question of "whose law applies?" also is being explored in articles by law professors and experts. You also may hear about this issue in the area of taxation of transactions that occur over the Internet. It is an area to watch.

One item to mention in the context of the Berne Convention is the concept of moral rights, described in Article 2b of the treaty. Moral rights (or droit moral) protect certain ostensibly noncommercial interests of creators, primarily attribution and integrity. The right of attribution protects the creator by requiring that the creator be known or identified as the creator of the work, preventing others from being falsely named as the creator, and preventing the work of other people as being attributed to him or her. It has to do with the right to be associated with one's own creative product. The right of integrity prevents others from distorting, mutilating, or misrepresenting the creator's work in a manner that would affect his or her honor or reputation negatively. Generally, moral rights cannot be transferred -- they are separate from economic rights and remain with the creator even after a work is sold.

This kind of right is not entirely consistent with traditional notions of property under U.S. law. Thus, in order to conform to the terms of Berne and permit the U. S. to sign the treaty, the U. S. pointed to other areas of U.S. law that provide analogous protections to creators, such as trademark, contract, and unfair competition laws. The U.S. Copyright Act was amended by Congress to include the Visual Artists Rights Act of 1990 as Section 106A (VARA). VARA applies only to a very limited category of creative works of art, including:

Note that VARA does not apply to every kind of creative work. Excluded are such works as (but not limited to) posters, maps, globes, motion pictures or other audiovisual works, magazines, books, periodicals, newspapers, and advertising.

Moral rights under Berne and VARA are rights of the artist only -- not the owner of the work if the work has been transferred or sold. In most European countries, moral rights cannot be transferred or assigned. In the U. S. this is true as well. However, in the U.S. an artist may waive his or her moral rights. This must be done in writing, stating the work and the uses to which the waiver applies. Note that moral rights under VARA do not appear to extend to electronic works.

The Copyright Act

As noted above, copyright in the U.S. is the exclusive right of authors in their original works. It exists from the moment of fixation in a tangible medium of expression (including software). It includes the right of the author to control the reproduction, display, performance, and other uses of a work. Note that "author" is the word used in the law to refer to any creator of a copyrightable work, regardless of whether the creator is an sculptor, painter, photographer, writer, or some other kind of creator. The Copyright Act protects these rights in a wide range of creative products including literary works; musical works including any accompanying works; dramatic works including any accompanying music; pantomimes and choreographic works; pictorial, graphic, and sculptural works; motion pictures and other audiovisual works; sound recordings; and architectural works.

The Act also protects the right of the author to create and control the creation of derivative works. A derivative work is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represents an original work of authorship, is a derivative work.

This is a particularly important area to understand for digitization projects because many people believe that a digital copy of an existing work is a derivative work based on the existing item. This is also important in relation to the concept of originality. A work is only subject to copyright protection if it is sufficiently original, and there is some question as to whether a copy (digital or otherwise) of a work already in the public domain (that is, without any copyright protection) is a separately protectible work. One court in New York, in the case Corel v. Bridgeman Art Library, has held that there can be no new protection in such a copy. You can see how the conceptual line may be a bit blurry for some people in determining the difference between protectible derivative works controlled by a copyright owner and copies of public domain works in new media. Many cultural organizations and businesses confuse these concepts and rely on sometimes inaccurate conclusions in creating products and reproductions to generate revenues.

To Keep in Mind

In the area of copyright, it is important to keep the following points in mind:

Exceptions to Copyright

Copyright does not apply to all works, and it does not last forever. It is intended as a limited monopoly permitting authors to profit from their creative efforts and, eventually, for the public to be able to freely use creative works with the idea that such fluid use will inspire new creation benefiting society at large. When a creative work is not subject to copyright protection, it is referred to as "being in the public domain."

Works created by employees of the U. S. government in the scope of their employment are in the public domain under the U.S. Copyright Act. This is a matter of public policy, on the theory that citizens already have paid for this work with their tax dollars. This assumption applies neither to the works of state employees in the U.S. (states may and often do assert copyright in the works of their employees) nor to the works of employees of other nations.

The duration of copyright in the U. S. may differ depending on whether a work was subject to the 1909 Act or to the 1976 Act as amended. Keep in mind that there are grandfathering provisions in the 1976 Act as amended that may apply to earlier works. Generally, under the 1909 Act, works were protected for up to two 28-year terms for a total of 56 possible years of protection. Under the Copyright Act of 1976 as amended by the Sonny Bono Term Extension Act effective October 1998, works are protected for a term of the life of the author plus 70 years. For joint works (those created by two or more authors), duration is 70 years after the death of the last surviving author. For anonymous works, pseudonymous works, and works for hire, duration is the lesser of 75 years from publication or 100 years from creation.

Note that a work for hire is a work created by an employee within the scope of his or her employment. Copyright in works by independent contractors is assumed to lie with the creator -- that is, the independent contractor. The works are specifically assumed not to be works for hire unless there is an agreement in writing to the contrary signed by the independent contractor prior to the start of work. If you are hiring someone to write a report or produce a creative product for your organization, and if you want the organization to retain the copyrights in the work produced by the contractor, it is critical to enter into a written agreement signed by the contractor before the commencement of work, stating the status of the work for copyright ownership purposes. Many contractors will refuse to sign something like this, so you may have to work out other ways to accomplish your goals, like obtaining some form of a license that allows you to achieve your goals while leaving the contractor some leeway to make other use of the work product. However, if he or she is producing something of a confidential nature, you should make every effort to clearly obtain all rights or otherwise address the matter in writing before work begins.

The following chart provides a helpful rule of thumb approach to calculating duration of copyright in the U.S. Keep in mind that this chart is less applicable to sound recordings and audiovisual works.

WHEN WORKS PASS INTO THE PUBLIC DOMAIN

Includes material from new Term Extension Act, PL 105-298

DATE OF WORK
PROTECTED FROM
TERM
Created 1-1-78 or after When work is fixed in tangible medium of expression Life + 70 years1(or if work is of corporate authorship, the shorter of 95 years from publication, or 120 years from creation)2
Published before 1923 In public domain None
Published from 1923 - 63 When published with notice3 28 years + could be renewed for 47 years, now extended by 20 years for a total renewal of 67 years. If not so renewed, now in public domain
Published from 1964 - 77 When published with notice 28 years for first term; now automatic extension of 67 years for second term
Created before 1-1-78 but not published 1-1-78, the effective date of the 1976 Act which eliminated common law copyright Life + 70 years or 12-31-2002, whichever is greater
Created before 1-1-78 but published between then and 12-31-2002 1-1-78, the effective date of the 1976 Act which eliminated common law copyright Life + 70 years or 12-31-2047 whichever is greater

1 Term of joint works is measured by life of the longest-lived author.
2 Works for hire, anonymous, and pseudonymous works also have this term. 17 U.S.C. § 302(c).
3 Under the 1909 Act, works published without notice went into the public domain upon publication. Works published without notice between 1-1-78 and 3-1-89, effective date of the Berne Convention Implementation Act, retained copyright only if, e.g., registration was made within five years. 17 U.S.C. § 405.

Notes courtesy of Professor Tom Field, Franklin Pierce Law Center
Lolly Gassaway

Note that "publication" is mentioned in this chart. As noted above, publication is a term of art that is defined in the Copyright Act. It generally refers to a sale or transfer of a work or a copy of a work, but it is not always a straightforward calculation. For example, the performance of a play is not a "publication" of a play for copyright purposes. Martin Luther King Jr.'s "I have a dream" speech was deemed by a court not to be a "publication" despite the attendance of thousands of people, the invitation of the press, and distribution of copies of the speech to members of the press. Use the chart as a rule of thumb, but keep in mind that publication can be a challenging concept that may require you to obtain legal assistance in some cases.

What is Fair Use?

Fair use is a concept unique to U.S. law that provides a defense to copyright infringement in certain special situations. If a use is a fair use, then one may copy an otherwise protected work without permission from the copyright owner and without the use being deemed an infringement. Other countries have a similar concept often called "fair dealing," but this is generally more restrictive and laden with administrative requirements. Fair use developed under U.S. case law (judge-made law) as an equitable way of dealing with certain kinds of copying that, under specific circumstances, were deemed excusable for reasons of public policy. Fair use existed only in case law until it was written into the Copyright Act of 1976, which distills these concepts of fair use that evolved in a long line of cases into a rather short statement that still leaves a great deal to interpretation in each situation.

Fair use is an exception to exclusive rights of copyright owners, and it is only available for limited uses for such purposes as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research. Depending upon the balance of the following four factors, copying for these purposes is not an infringement under U.S. law. The four-factor test requires an evaluation of each set of facts under a balance of all of the following considerations -- none of which is dispositive on its own.

What is the purpose and character of the use? Is the use intended for commercial or noncommercial purposes? Does the use do something that is somehow transformative -- that is, does it use or copy the work itself as a parody that inherently requires the use of the work in its entirety?

What is the nature of the work? Is it a work of fiction or nonfiction? Fiction tends to receive a higher level of protection as more "creative" and, thus, is less subject to fair use arguments than factual works.

What is the amount and substantiality of the work used in relation to the whole? Does the copying take one line of a haiku poem or a multivolume epic? Is the copy one of the last pages of a whodunit mystery that, while only a small portion of the work, may destroy a buyer's interest in purchasing the book since he or she knows the ending already? This brings us to the last and often (though not always) heavily weighted factor:

What is the effect of the use on the potential market for -- or value of -- the copyrighted work? Note that this focuses both on existing value and potential market for a work. Copyright owners are putting old works back into circulation in many creative ways using new technologies. Therefore, it is more complicated to argue that a book has no potential market value because it is out of print. This can be a difficult factor to overcome if you plan to make a digital copy of a protected work for presentation on the Internet under a fair use argument.

A few recent cases demonstrate the application of fair use, including some cases where the fact that the use was commercial in nature was found not to be dispositive. In other words, the use was found to be fair despite the commercial nature of the use. You may recall the 1994 Supreme Court case of Campbell v. Acuff Rose Music, Inc. in which the rap group 2LiveCrew was sued for using Roy Orbison's well-known song Pretty Woman without permission or payment of royalties. 2LiveCrew's use was found to be fair despite its commercial nature. The band's attorneys argued successfully that 2LiveCrew's version was not a copy per se but a parody that required taking the "heart of the work" to make its point. This is an example of a transformative use.

In the 1998 case, Leibovitz v. Paramount Pictures Corporation, a court found a fair use in another situation involving commercial use where, in order to make a parody, the heart of a work had to be used. The famous photograph of actress Demi Moore for the cover of Vanity Fair magazine depicting Ms. Moore late in pregnancy and posed in the nude was parodied in an advertisement for a Naked Gun comedy film. The male star of the film was posed to mimic Ms. Moore. The original image of Moore was very carefully copied in detail. The court evaluated the facts on all four factors. Here, the original work was copied in its entirety for a commercial purpose. Yet, fair use applied because for the purpose of the parody, the use went to the heart of the original -- the copying was required in order to make the parody. The use was found to be transformative and fair despite the commercial nature of the use and the fact that no permission was requested or fee paid. Note that no license fee is required if fair use applies.

Situations where no fair use was found include reproduction of a copyrighted poster of a work of art for a mere few seconds in a television sitcom. The poster was visible in the background of the set in the 1997 case of Ringgold v. Black Entertainment Television. The artist who created and owned copyrights on the poster and the original work of art on which the poster was based brought a copyright infringement action against the producer and broadcaster of a television program. The poster was used as set decoration in a manner ultimately found to be significant for copyright purposes because the use was for the same decorative purpose for which the poster was sold. This weighed against the television producer on the fair use factor, addressing purpose and character of use. Further, the fair use factor addressing effect of the use on potential market for the artist's work weighed against the producer because the use was commercial and took the heart of the thing without being transformative. The producer used the entire work where the artist already had existing licensing profits, thus negatively affecting the artist's income by failing to obtain permission and pay a license fee. There was no parody. Note that the poster appeared onscreen for only a few seconds.

It is difficult to determine whether fair use will apply in many situations. It is a concept that developed primarily in application to text, making the four factors somewhat difficult to apply to photos, artworks, and other nontext material.

Other Considerations

Copyright is in the limelight as the biggest concern for digitization projects, but there are other legal concepts that require attention. Brief descriptions of a few of these concepts follow.

Right of Publicity

The right of publicity generally is associated with public figures, frequently though not always celebrities and entertainers. Publicity rights address commercial gain in one's name, likeness, voice, persona, or other commercially exploited aspects of personality. Applicable laws vary state by state. Unlike copyright law, there is no federal law for publicity rights. This makes it difficult to determine what law applies to a particular situation. Further complicating matters is that in some states this right may continue after death. In other states it ends at the death of the subject. Advertisements incorporating digitally remastered film of now-dead celebrities are becoming routine -- from John Wayne selling beer, to Elvis Presley selling pizza, to Fred Astaire dancing with vacuum cleaners.

Although many states have laws related to publicity rights, if you are dealing with materials that raise publicity concerns and are associated particularly with Tennessee, California, or New York, take extra care, since these states have well-developed laws in this area. You can seek permission from persons who have publicity rights directly from them -- more often from their agents or attorneys. Often, depending on the nature of the use, you may be able to get a license fee for free or at a nominal expense. Finding the right contact is primarily a matter of detective work. Because publicity rights address economic rights, you may be able to argue that you have not intruded on publicity rights if your use is strictly noncommercial. The extent of possible liability is unclear for posting such material on the Internet, and thereby contributing to someone else's illegal use. Warnings placed on your site that tell your audience that they may need to obtain proper rights may be prudent if others copy content from your site for their own commercial purposes, although such warnings will not insulate you from possible liability.

Right of Privacy

The right of privacy is often referred to as "the right to be let alone." Unlike publicity rights, this body of law usually relates to private citizens rather than celebrities, though there are significant exceptions. Also in contrast to publicity rights, privacy rights are noncommercial in nature and protect people from intrusion into their seclusion or private affairs, from public disclosure of private information, and from being presented in a false light. Take special care if you are dealing with materials that place or otherwise document private persons in embarrassing situations such as photographs of nude persons (where the person is identifiable). It may be inappropriate at least and illegal at worst to publish such materials on a publicly accessible Web site. If the materials are sufficiently intrusive or embarrassing, the likelihood of obtaining permission from the subject is slim. The right of privacy generally ends at the death of the subject.

Defamation: Libel and Slander

Defamation embodies both libel and slander. It involves the publication to a third party of false written materials (libel) or spoken remarks (slander) that hold living persons up to hatred, contempt, or ridicule. This area of law varies state by state. If you are dealing with materials about a deceased person, keep in mind that the right usually ends at death. You cannot defame the dead. As a practical matter, there may be alternative legal theories under which children or heirs may be able to base a suit, so think very carefully before placing materials on the Internet that may be defamatory. This issue might come up in digitizing projects that involve correspondence or administrative papers where negative remarks were made decades ago and where the writer did not expect such remarks would be made public.

Obscenity and Pornography

Obscenity and pornography are such complex and large areas of the law that it suffices here to merely note these issues. Be able to recognize these issues and address them as necessary. Red flags for digitization projects include nudity, especially involving children, and any depiction of minors engaged in sexually explicit conduct. There are ongoing efforts at state and federal levels to control pornographic material distributed on the Internet, particularly child pornography, as well as efforts to protect child users of the Internet from materials that are more appropriate for an adult audience. Early efforts have been found unconstitutional. For example, the Electronic Communications Decency Act and its progeny were found unconstitutional partly on the theory that controlling pornography as outlined in that law would theoretically protect children at the likely expense of the First Amendment rights of adults, and partly on the practical assumption that child users can be protected from access to pornography through the use of filtering software. It is important to follow legislative efforts in this area. In all likelihood, the proper balance will eventually be struck between managing illegal content such as child pornography online and the First Amendment.

Sensitivity to Content

Strictly speaking, this may not always be an area of legal concern, but it should be flagged in any digitization project. If you are working with anthropological materials or materials that involve people photographed against their will or in exploitive situations such as prisoners of war, be sensitive to the context of how the material was collected. Determine whether it is appropriate to consult with the subjects or descendants if possible. For example, give special attention to materials involving Native Americans, their sacred objects, and ceremonies. Examine the context in which original material was collected and consider the manner in which you will present such content.

Freedom of Information Act

This is an area of concern for projects produced by federal agencies of the U.S. government in particular. The Freedom of Information Act requires that the government provide public access to certain records, mostly involving governmental administration and policy matters such as organizational descriptions or procedures. Web sites are cost-effective tools to provide access to commonly requested materials that you may be legally required to make available to the public. A caveat: Some materials are specifically exempted from access, such as those whose disclosure might constitute an unwarranted invasion of privacy (e.g., personnel, medical records), certain matters of national defense and foreign policy, trade secrets, privileged or confidential commercial or financial information, and certain law enforcement records.

Linking

A handful of cases have been brought in recent years involving linking between Web sites. One of the more publicized of these cases involved Ticketmaster and Microsoft. Microsoft linked to an area of Ticketmaster's Web site "past" the Home page. Anyone accessing Ticketmaster's site via the subject link from Microsoft would bypass the advertising on Ticketmaster's Home page. Ticketmaster argued that this would ultimately deprive it of advertising revenues while Microsoft argued, among other things, that the link actually created greater exposure for Ticketmaster's products and would increase Ticketmaster's sales. This case was settled.

More recently, the Church of Jesus Christ Latter-Day Saints sued the Utah Lighthouse Ministry in a federal district court in Utah for linking to Web sites that contained copyrighted works of the Church of Jesus Christ Latter-Day Saints without its permission. In December 1999 the court issued a preliminary injunction preventing the Utah Lighthouse Ministry from providing these links. This case raises the question of contributory infringement. Under this case, if you link to sites that contain material that infringes on a copyright, you may be held liable for copyright infringement even if you did not post ("copy") the material yourself. This case has chilling ramifications for the fluidity of the Internet as well as First Amendment implications. Monitor this case for consideration in planning your Web site -- a search of the parties' names on any search engine will provide references.

It has become common practice to obtain permission to link to other sites -- or to at least notify the subject site. This is particularly true for commercial sites. This is a conservative approach, and by no means a requirement at this time. Like so many other issues, the consideration of the context of the link is important. By analogy, one would not request permission to list a work in a bibliography. If you are creating a resource list on a noncommercial, educational site, this concern is probably limited. Tread with caution if you are linking in a manner that implies some kind of endorsement or otherwise might trigger a right such as trademark or unfair competition. The existence and extent of liability in this area are unclear to date.

How to Proceed

One theme of this discussion is the evolving nature of the legal environment as new factual situations arise vis à vis the Internet. The first step in forging ahead in this changing scene is to educate yourself. Get a sense of the issues; this article is intended as a starting point. Once you have some familiarity with the legal as well as financial and administrative concerns, it is advisable to establish within the organization some policy framework so it can develop consistent practices and ways of approaching projects.

Each project should include for internal use and communication a description of the material selected for digitization. What is it, where is it from, how and why was it selected for digitization? Is the material of extraordinary interest? Is donor enthusiasm driving the project? Is the original material to be conserved in the process or is this a project where the materials will be destroyed in the course of the effort, as in so-called "brittle book" projects? Determining the provenance of the original material is the critical first step in a legal evaluation of the rights status of the subject materials. What were the terms of transfer -- was the material given to or purchased by your organization? Were there any written terms, such as a deed of gift or a will? If so, get a copy and read it carefully. You may need the assistance of an attorney to interpret the terms.

You should then be able to determine whether you will need to pursue permissions to reproduce the selected content on a Web site. Keep in mind that the legal status of the original material is a significant factor in any selection process. If you have exciting materials that are heavily encumbered by the need to go through an onerous permissions process, you may determine that on balance it is more expeditious to consider another body of material. Otherwise, factor in the cost of permissions, including the administrative expense (staff time, reference resources, telephone calls, faxes, mailing...).

In planning a project, have a clear sense of your institution's purpose. Budget time and resources accordingly. Digitization projects tend to be labor intensive -- this is not merely the technical equivalent of photocopying! Staff and contractor time are costly and tend to be underestimated. Decide as a practical matter whether you are willing and able to pay permission fees if necessary. Develop form permission letters to minimize your administrative efforts. You may as a policy matter prefer not to include any materials encumbered by rights. Consider how you expect people to use the Web offerings and plan around that expectation. Document your efforts. Plan to include notice statements online with each project including information about permissions obtained and contacts for those rights holders ("legal metadata"). They should be incorporated into the graphic design in a consistent way so that users know where to find rights information in a predictable way. Keep in mind that individuals who grant permission for use, in contrast to businesses, may prefer that you not place their Home address on your Web site for privacy reasons. Thus you may need to serve as the contact point to refer permission requests from third parties who wish to use materials posted on your site with permission -- another administrative consideration.

You may wish to look at the notice statements provided in the American Memory Home page as a starting point. Note that there is a statement for American Memory overall and a statement tailored to each collection presented on the respective collections' Home pages. Your notices should be tailored to your project, your organization, and other particulars unique to your efforts. Notice statements provide important information to users of your site, although it is unclear as to what extent notices will insulate you from certain liabilities. In contrast to the American Memory notices, many Web sites incorporate very legalistic notices. The tone and content will vary depending upon your project, the comfort level of your organization, and any legal advice you may obtain.

Sample American Memory Notice Statements

General Statement
http://lcweb2.loc.gov/ammem/copyrit2.html

Gottscho-Schliesner (commercial rights reserved)
http://lcweb2.loc.gov/ammem/gschtml/gottres.html

Conservation Collection (mixed-media collection)
http://lcweb2.loc.gov/ammem/amrvhtml/consres.html

Words and Deeds (items made available with permission)
http://memory.loc.gov/ammem/mcchtml/corres.html

References for Information
About Law and the Online World

The "law of cyberspace" evolves daily as new technologies emerge, new legal analogies develop, and as the courts and Congress respond with new opinions and laws. By the time you read this document, new materials will be online. As a practical matter, many sites are updated or changed frequently. Some addresses may disappear altogether. Note that quoted material refers to text from the described site.

Part of the excitement of using online resources is that you never know what you may find. Each site is likely to link to other interesting information. Some of the addresses listed here, like the Copyright Office's site, provide solid resources that you will refer to over and over again. Some provide legislative updates, like the Library of Congress' THOMAS site. Other addresses are policy oriented and contain think pieces and commentary about legal developments related to cyberspace. This list is not an endorsement of any particular site or point of view expressed. There is a phenomenal amount of material being generated on this subject both in print and electronic form -- this list is by no means exhaustive. It is a starting point for information about legal issues related to using and participating in the Internet.

I encourage you to look around and educate yourselves -- both about the actual state of the law and the range of opinions that form the debates about the legal future of the Internet. These debates only begin with questions about copyright. Try to keep up with the ongoing debates to obtain a general understanding of the concepts behind existing laws. Then apply common sense to your day-to-day work. Ideally, you will have an attorney at your disposal who can assist you. Coordinate your activities with your General Counsel's Office, if applicable. There is no substitute for qualified legal counsel.

Start with The Library of Congress Home page at:
http://www.loc.gov/

It will take you to the National Digital Library Project/American Memory Collection. Look at that for examples of restriction and notice statements. Look at other sites -- commercial, nonprofit, and government -- to see how different organizations handle these issues.

Also from the Library of Congress' Home page, see The Copyright Office's site. This provides a plethora of information about copyright. Information about copyright basics is a must. Also see online the Copyright Office's indispensable circulars describing in simple terms the practical aspects and applications of copyright law -- there are also instructions for how to obtain a free set of print copies of the circulars. This site is indispensable for text of the copyright law, international conventions, and legislative updates. Note the information about CORDS (The Copyright Office Electronic Registration, Recordation and Deposit System), an exciting project in the works for online, digital registration and deposit of works for copyright purposes.

The Library of Congress' Home page also contains THOMAS. Named for Thomas Jefferson, whose personal library formed the core of the Library of Congress, THOMAS provides regularly updated information about legislation of the U.S. Congress. Be on the lookout for legislation about copyright, privacy, and obscenity/pornography matters (to name a few) as they relate to the Internet.

The Cyberspace Law Institute (CLI) seeks to, "study, and help to develop, the new forms of law-making required by the growth of global communications networks and online communities." There is plenty of information geared for non-lawyers; find the link to Email Course on Cyberspace Law for Non-Lawyers. This virtual course will be over by the time you read this, but the lessons should be archived on the CLI site. This articulate presentation may be found at:
http://www.cli.org

The UVa Copyright Resources from the University of Virginia provides general copyright information; policy statements regarding copyright matters such as the ownership of works produced by University of Virginia's faculty and students; and guidance for permission letters. Find it at:
 http://www.lib.virginia.edu/acquisitions/copyright/

When Works Pass Into the Public Domain is a handy chart by Laura N. Gassaway, Director of the Law Library & Professor of Law, University of North Carolina, Chapel Hill. The chart, reproduced in this chapter, helps to determine the duration for many copyrighted works where the facts are fairly straightforward; it is less helpful in more complex situations.
http://www.smartbiz.com/sbs/arts/ipi5.htm

The chart was obtained from a link from the U.S. Intellectual Property Information site. See it at:
http://www.fplc.edu/tfield/order.htm

The Legal Information Institute, Cornell Law School provides copies of recent Supreme Court decisions, the United States Code (laws promulgated by the U.S. Congress), historic decisions, and more. It is a bit legalistic but is a complete and quite useful resource. See the area called material organized by legal topic. Then click on intellectual property. Then click on copyright or right of Publicity/Right of Privacy. Start at:
http://www.law.cornell.edu/lii.table.html

The Guide to Copyright Bibliography is a list of handy sources, mostly law review articles. Some are accessible for nonlawyers. Peruse the list and see what looks helpful:
http://www.music.indiana.edu/tech_s/mla/legcom/bib.htm

The International Federation of Library Associations (IFLA) Home page is at:
http://www.nlc-bnc.ca/ifla/ Home.htm

It contains useful items, including a bibliography of relevant articles, journals, organizations, companies, and online collections. It also includes examples of copyright policies and international treaties available through the IFLA site or directly at:
http://www.nlc-bnc.ca/ifla/ll/cpyright.htm

The American Library Association's site provides information on legislative developments that affect libraries; copyright also continues to be a significant concern. From their Home page, look at their sections, Copyright and Intellectual Property and Intellectual Freedom. They also have a listserv -- get instructions on how to subscribe at their Home page at:
http://www.ala.org/alawashington.html

The Coalition for Networked Information (CNI) has a Copyright and Intellectual Property Forum listserv intended to "give those who ask, answer, and discuss copyright questions of any type a forum for discussion...not limited to any one area such as copyright for electronic materials." Their archive is at: ftp://ftp.cni.org/CNI/forums/cni-copyright. Better yet, subscribe by

sending an e-mail note to the Coalition ListProcessor (LISTPROC@CNI.ORG) with the following message:
subscribe CNI-COPYRIGHT <your real name>

The Sixth Conference on Computers, Freedom, and Privacy at the Massachusetts Institute of Technology, March 27-30, 1996 addressed a wide range of issues in the context of the Internet including copyright, privacy, and freedom of expression. It includes links to content from discussions by distinguished panelists. This will help to give you a sense of the range of issues:
http://swissnet.ai.mit.edu/ switz/cfp96/index.html

The Journal of Online Law (JOL), "is an electronic publication of scholarly essays about law and online communications -- law and cyberspace." These well-written essays are useful for both lawyers and nonlawyers. Find the JOL at:
http://www.wm.edu/law/publications/jol

A License to Copy describes a proposal to set up a licensing scheme for academic institutions based on the number of enrolled students for certain uses of certain copyrighted materials. The framework is similar to the accepted licensing practices of the music industry handled by ASCAP and BMI. Proponents say it would ease the burden of tracking down and paying permissions for higher education. Opponents say it erodes fair use:
http://www.copyright.com

The Electronic Frontier Foundation is "a non-profit civil liberties organization working in the public interest to protect privacy, free expression, and access to public resources and information in new media." Find legislative information and more at:
http://www.eff.org/

The Digital Future Coalition includes copyright and information about other legal issues as they relate to the Internet. The DFC was formed in the fall of 1995 "to work towards a thorough, broad and balanced congressional debate of U.S. copyright law and policy." See their list of member organizations, which links to other useful sites:
http://www.dfc.org/

An interesting article by David Post, Visiting Associate Professor of Law, Georgetown University Law Center, is The State of Nature and the First Internet War: Scientology, Its Critics, Anarchy and Law in Cyberspace at:
http://www.cli.org/DPost/X0003_ARTICLE4.html

Another article by Ann Okerson of Yale University, Who Owns Digital Works, is accessible and sets forth many of the challenges for applying copyright to online activities. The print version is available from Scientific American.  

Sources

Nicholas Negroponte. Being Digital. New York: Knopf, 1995. An interesting think-piece about the big picture concepts associated with digital information. Helpful for those of us who are not technically inclined.

A Museum Guide to Copyright and Trademark (American Association of Museums) by Michael S. Shapiro and Brett I. Miller, Morgan, Lewis & Bockius, LLP. 1999. This book was supported with a grant from The Pew Charitable Trusts, with additional support from The J. Paul Getty Trust.

Lance Rose. NetLaw: Your Rights in the Online World, 1st ed. New York: Osbourne/McGraw-Hill,1995. An introduction to application of U.S. law to the online world. Minimal legalese useful for lawyers and nonlawyers.

 

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