Library Digitization Projects and Copyright - Part V - Permissions, Good Faith Efforts and Disclaimers

By Mary Minow, Published on June 28, 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 section one 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

Table of Contents

V. Permissions, Good Faith Efforts and Disclaimers
A. Permissions
B. Good Faith Efforts
C. Disclaimers

V. Permissions, Good Faith Efforts and Disclaimers

Theoretically, this is the end of the line in a copyright analysis of your library digitization process. In practice, you may run screaming after extraordinary amounts of paper trails and exceptionally diligent efforts to locate the copyright holders through probate records, and then return to the FAIR USE and Salami section.

A. Permissions

B. Good Faith Efforts

In Canada, a user can document a good faith effort, submit the documentation to the Canadian Copyright Board, and get a license to use a work. Fees are placed into a trust account for five years, in case the missing copyright owner turns up.

The Canadian system has been criticized for a number of reasons. Yet I mention it by way of contrast, because the United States has no system for libraries or others to demonstrate good faith efforts.42

The leading articles on good faith efforts in library digitization projects are:

For a look at how some libraries have worked their way through the process, see:

C. Disclaimers

The Library of Congress uses careful wording that is worth reading:

The National Digital Library Program and the Library of Congress respect copyright and other legal rights associated with materials under consideration for dissemination over the Internet. The program makes items from Library of Congress collections available online after a full risk assessment has determined the legal status of items and identified rights owners or other parties to the extent possible. Permission or authorization [as in "no objection"] is sought from known rights owners or other parties for rights such as copyright, publicity, and privacy.

Many collections at the Library raise no apparent rights concerns when considered for digitization. For example, copyright is not a concern in the case of works by employees of the federal government or for works for which available copyright protection has expired, although the content of such works may still raise publicity or privacy concerns. Items in other collections have unclear or indeterminate provenance, like similar materials in museum or archives everywhere. The Library's legal assessment process relies heavily on the substantive knowledge of collections experts in special-collections divisions like Prints and Photographs and the American Folklife Center. Information provided by these experts augments available copyright or catalog records and acquisition documents that may note donor restrictions or other limits on access or use. The legal review depends upon variables such as the state of collections, the extent of available information, and the nature of the medium, e.g., dramatic works, sound recordings, or film. This approach to assessing rights inherent in collections selected for digitization by the Library has resulted from extensive discussion with the Library's General Counsel and senior members of the U.S. Copyright Office's staff. The Library has sought an approach to responsible use of its collections in a manner consistent with its duties and mission. This process is flexible, responding to the idiosyncratic nature of the collections and available information.

Materials currently available through American Memory range from items for which the Library is unaware of any copyright or other legal concerns to items where permission or authorization was sought from copyright or other rights holders before the materials were presented on the Library's World Wide Web site. Prospective applicants for Phase II of the Digital Libraries Initiative who would like to make use of the digital collections made available by the Library are encouraged to read carefully the general statement on copyright and other rights provided on the American Memory home page and to consult the specific restriction statements provided for each collection. Although the Library will assist grant recipients in identifying owners and other parties, the Library cannot provide legal advice regarding the content.


36United States. Copyright Office. Circular 22. How to Investigate the Copyright Status of a Work (June 1999) http://www.loc.gov/copyright/circs/circ22.html (visited May 2, 2002).
37Georgia Harper, University of Texas at Austin. Copyright Crash Course Personable course on many aspects of copyright relevant to libraries. See especially the section on permission, which discusses logistics, risks and benefits. http://www.utsystem.edu/ogc/intellectualproperty/permission.htm (visited April 29, 2002).
38Copylaw.com. The Law Offices of Lloyd J. Jassin. Locating Copyright Owners at http://www.copylaw.com/permission.html. (visited May 19, 2002).
39Cary Kennedy, Newspaper Publishers in the Post-Tasini Era, Searcher (March 2002) 50.
40New York Times v. Tasini, 533 U.S. 483 (2001).
41National Geographic Society v. Greenberg, 244 F.3d 1267 (11th Cir. 2001), cert. denied 122 S. Ct. 347 (2001). The court remanded the case to the district court to determine the remedy, and added, "[I]n assessing the appropriateness of any injunctive relief, we urge the court to consider alternatives, such as mandatory license fees, in lieu of foreclosing the public's computer-aided access to this educational and entertaining work."
42According to Peter B. Hirtle, the Canadian system does not include unpublished works, few items have received a license, and "reasonable efforts" has been interpreted by the Canadian Copyright Board to mean "thorough search," including investigating inheritance records. Peter B. Hirtle, Unpublished Materials, New Technologies, and Copyright: Facilitating Scholarly Use, 49 J. Copyright Society of the USA 259-275 (Fall 2001). Draft copy on the web for participants of the Interdisciplinary Conference on the Impact of Technological Change on the Creation, Dissemination, and Protections of Intellectual Property, The Ohio State University College of Law, Columbus, OH. March 8-10, 2001. http://cidc.library.cornell.edu/Pub_files/Hirtle_OSU_paper.pdf. Cited with permission by the author.

<Table of Contents>

Proceed to Part 6 of this article: Pickle Jars and Other Restrictions