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Library Digitization Projects and Copyright - Part I - Introduction and Overview

By Mary Minow, Published on June 27, 2002

Editors' Note (SP): This article is divided into six parts. You may link directly to each one of these parts using the chart directly below. In addition, for your reference, the article's complete Table of Contents appears in the first section of the article.

Introduction and Overview / Expiration of Works into the Public Domain / Section 108 Library Exception
Fair Use and Salami / Permissions, Good Faith Efforts and Disclaimers / Pickle Jars and Other Restrictions

Please choose the specific topic from the list above, which will lead you to the related Table of Contents.

Table of Contents

I. Introduction and Overview
II. Expiration of Works into the Public Domain
A. Published v. Unpublished
B. Published and Registered Works
1. The 95 Year Rule and the Frozen Years
2. Giant Exceptions to the 95 Year Rule for Published Works
a) Published in the U.S. before 1978 with No Copyright Notice = PUBLIC DOMAIN
b) Published in the U.S. before 1964 without Renewal = PUBLIC DOMAIN
3. Rule of Thumb: Sail the Ocean Blue through 1922
4. Rocks at the Edges
a) Don't Use Newer Versions of Expired Works
b) Don't Use Trademarks: Like Diamonds, Trademarks Last Forever
c) Special Concerns about Digitizing Foreign Works
C. Unpublished Works
1. General Rule
2. Today, Nothing is in the Public Domain
3. But I know I've seen Digitized Copies of Letter and Manuscripts!
4. New Years Day 2003: Public Domain Parties in Libraries and Archives Across the Land
5. Tears: Twenty Years Buried
6. The Flip Side: Copyright Owners Rush to Publish by December 31, 2002
D. Stay Tuned: Eldred v. Ashcroft May Return the 20 Years
III. Section 108 Library Exception
A. An Open Door: Threshold Requirement to be a Section 108 Library
B. 20 Year Rule: May Digitize Published Documents not Subject to Normal Commercial Exploitation (Nimble Sailing)
C. Replacement, Preservation and Security: Works of any Format from any Year
1. Published Works :Replacement of Unavailable Items
2. Unpublished Works: Preservation, Security, Deposit for Research Use in Another Sec. 108 Library
D. Section 108 Summary
IV. Fair Use and Salami
A. Four Factors
B. Hypothetical Scenario: Bordello Letter (Unpublished)
C. In Practice
V. Permissions, Good Faith Efforts and Disclaimers
A. Permissions
B. Good Faith Efforts
C. Disclaimers
VI. Pickle Jars and Other Restrictions
A. Restrictions By Owners
B. Restrictions By Non-owners

I. Introduction and Overview

I went to the corner magazine stand, bought a new Forbes magazine, read it, then ripped it to pieces. Did I have the right to do that? Of course. I picked it out and paid for it with my own money. Do I have the right to make copies of the articles and sell them on the street corners? Scan the articles and put them on my website? Of course not. We all know that even though I owned a current issue of Forbes, I don't own the copyright to its articles.

But what if the articles were really, really old? What if they are from a local magazine that's no longer in business? What if I had a diary or a letter that was never published? Then can I digitize it and put it on the web? Librarians ask me these questions; they seem to expect a reasonable, brief answer.

But no, this article is my reply:


When can you digitize your library's special collection? For those of you who like flow charts, (and who doesn't like flow charts?) I've color coded a chart that starts with the first choice, the clearest BLUE skies, clear sailing choice, the PUBLIC DOMAIN. If the item in your collection is in the public domain, you can put it onto the web, and assuming there are no other restrictions like privacy and publicity concerns, you can rest easy in copyrightland.1

If the item is not in the public domain, not all is lost. For libraries and archives, Copyright law has an exception that I dub a cautionary YELLOW. SECTION 108 allows libraries and archives to digitize works in the last twenty years of their copyright term. Section 108 has additional exceptions for preservation, security and replacement. These latter provisions allow for digitization, but you can't put the copies on the web. They must stay in the library.

If Section 108's conditions and limitations do not suit your need, you can move down the flow chart to the GRAY. This is the gray area known as FAIR USE. It's gray because courts determine whether or not a use is a Fair Use on a case by case basis. We don't know whether a library digitization project (or a particular item) is Fair until one of us gets sued and wins (or loses, but then at least we'll have some guidance).

If none of these work for your item, you're at the end of the line, the GREEN. The good news is that getting PERMISSION gives you a green light to go ahead without reservation. The bad news, is it's really, really hard to locate the rights' holders because they're likely dead and gone, and you are tracking down probate records and heirs. This could be a green light, but it could easily be a dead end. At that point, you might take a fresh look at the indeterminate gray area of FAIR USE.

*Thanks and appreciation for suggestions to this article go to Robert Bickal, Colleen Cayes, Robert Kasunic, Newton Minow, Ellene Shapiro, and especially Peter Hirtle. Illustrations are copyright-free. Sources, primarily from U.S. Government websites, are on file with the author. See also a webcast on this topic from May 16, 2002, sponsored by Infopeople, funded with IMLS/Library Services and Technology Act money, at http://www.infopeople.org/training/webcasts/program_guide.html.

Footnotes:

1This article deals exclusively with determining whether works have expired into the public domain. Works can enter the public domain by other means. See Stephen Fishman, The Public Domain: How to Find Copyright-Free Writings, Music, Art & More (Nolo: 2000). See also a forthcoming article on the public domain and library web pages by Mary Minow, to be posted soon at http://clanet.org/pubs/pubs.html.

Proceed to Part 2 of this article: Expiration of Works into the Public Domain

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