This article does not purport to answer every question about copyright and related doctrines. Nor can it even plumb the depths of all the legal issues involved with the practice of genealogy. Rather, it should be taken as a launching pad for further discussions in intellectual property. It should definitely not be construed as legal advice. First, I'll define several terms related to copyrights, and then, I'll talk about how copyrights relate to you and your genealogy work.
U.S. Law. In the U.S., copyright laws derive from the U.S. Constitution which gave Congress the power "to promote science ... by securing for limited times to authors ... the exclusive right to their ... writings." (Art. 1, sec. 8) Federal legislation preempts state laws on the subject of copyright. Copyright statutes are found in Title 17 of the United States Code, whose last major revision was called the Copyright Act of 1976.
Definitions. As used in the intellectual property context, "original" means both
A "tangible medium of expression" can be any method of recording "now known or later developed, from which [the work] can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device." Spoken words are not tangible unless recorded. Ideas are never tangible and do not receive protection, but their expressions do.
When copyright arises. Under current U.S. copyright law, a copyright arises when a work is fixed in a tangible medium of expression. That is, it automatically comes into being when it is recorded in any fashion. The immediate owner of a copyright is the author, or authors in the case of joint authorship. Works created by employees of the U.S. Government and most state and local governments are not protected by copyright. Copyrights in "works made for hire, " that is, works created by employees as a part of their employment, are owned by the employer.
Transferring copyrights. A copyright may be transferred to another, as is commonly done when authors assign their rights in a work to a publisher in order to get the work published. A major part of the publishing and movie business concerns itself with buying, selling, and tracking copyrights.
Ownership of copyright. Ownership of the copyright is distinct from the ownership of any material object in which the work is embedded. Mere possession of a book, for example, or a CD-ROM, does not give the possessor absolute right to do anything they please with the contents of the book or CD-ROM.
Public domain. A work that is not copyrightable or whose copyright has expired or lapsed is considered "in the public domain." There are no restrictions on what can be done with works in the public domain.
Term of copyright. Newly created works are protected during the author's lifetime and an additional fifty years thereafter. (Congress is considering a provision to add 20 years to this limit.) Works created before 1978 are governed by the law then in effect, generally for a total term of 75 years. In general, any work published before 1922 is now in the public domain.
Not copyrightable. Certain expressions cannot receive copyright protection, either because they are not original (such as ideas, facts, events, news of the day, concepts, principles, Laws of Nature, or discoveries), or the domain of patent law (devices, procedures, processes, method of operation) or trademark law (names, titles, logos). If a concept can only be described in a limited number of ways, its expression is said to "merge" with the concept and is also not copyrightable. Also not copyrightable are blank forms, plain calendars, and lists or tables taken from public documents or other common sources.
Compilations. A compilation, that is, a collection of works, is itself a work that receives copyright protection whether or not the works it contains are copyrightable. The originality involved in compiling (selecting, arranging, explaining, etc.) the compilation qualifies it for its own copyright. Until 1991, compilers could assert a right in a compilation of public domain facts based on their considerable effort to compile them into a new work. But the Supreme Court threw out this "sweat of the brow" theory in its decision "Feist Publications v. Rural Telephone Service," (499 U.S. 340). Since then, database owners have been forced to use other techniques to protect their market, including license agreements and moral suasion.
Fair Use. "Fair use" allows non-infringing copying of a copyrighted work for such purposes as comment, criticism, news reporting, teaching, scholarship or research. In determining whether such use is fair, courts consider
But adding any kind of narration to these basic facts gives rise to a copyright in the creative portion of the work. The more narrative, the stronger the copyright. If you are the author, you should take care to mark your work to give the proper notice. If it is a large or major work, consider registering it and depositing a copy in the Library of Congress.
On the other hand, if you find narrative material in a good family source, you should take care not to violate the rights of the author. Remember the idea of "Fair Use," mentioned above, before using more than a sentence or two, seek out the author and get permission. Do not assume that just because you have a copy of a story, you can copy it again or incorporate it into your family's history. If the author is dead, genealogists -- of all researchers -- are unable to use the excuse that they couldn't locate the heirs to seek copyright clearance!
Simple pedigree charts are not copyrightable, despite their markings, even when filled in with facts. But add a "modicum of creativity" and you can claim copyright protection in a pedigree chart. The same goes for computerized pedigree data, either in disk form or in a GEDCOM file.
Computerized family trees submitted to a compilation such as Ancestral File, GENSOURCE, the World Family Tree Project, or a GenWeb site are subject to the same laws of copyright as are printed genealogies. By submitting your data to one of these compilations, you implicitly agree to allow your information to be published. But if you include someone else's creative work along with yours, both you and the compiler may be liable for infringement. Genealogy.com warns contributors to its World Family Tree project about these issues in its WFT Instruction Guide, under "Your Rights as a Contributor to the World Family Tree."
Marking. Marking a work with the word "Copyright," abbreviation "Copr," or the symbol © (the "C" in circle) plus the date and the author's name is permitted by law to provide legal notice of a copyright claim. In an infringement action, an infringer cannot reduce damages by claiming "innocent infringement" if the work was clearly marked.
Registering. The copyright law permits registration of the copyright at any time during its duration. Registration is required before bringing an infringement action at law. Registration involves filling a brief form, paying a small fee, and sending two copies of the work to the Register of Copyrights. For more details about this, visit The United States Copyright Office.
Depositing. Depositing two copies "of the best edition" of a work with the Library of Congress within three months of publication is a mandatory requirement of the copyright law. The copies sent to the Register of Copyrights for registration purposes fulfill this requirement.
Genealogy is a literary work under today's copyright laws. And everyone involved in research and preparation of a genealogy should be aware of copyright, as they use others' work for source material and generate their own.
He recently earned a law degree after attending night classes for four years at Thomas Jefferson School of Law and has just passed the California Bar exam. He plans to practice "computer law."
He has served as the President of the Computer Genealogy Society of San Diego, President of the GenWeb Foundation, and is a section editor for advanced projects of the Journal of Online Genealogy. He writes and speaks frequently on topics relating to the convergence of genealogy, technology, and legal affairs.
|
|||||||||||||||||
| © Copyright 1996-2007, The Generations Network. |