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ARCHIVES Home

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ARCHIVES  July 2006, Week 4

ARCHIVES July 2006, Week 4

Subject:

Re: Digitization of microforms

From:

"Chris M. Garmire" <[log in to unmask]>

Reply-To:

Chris M. Garmire

Date:

Tue, 25 Jul 2006 11:47:06 -0600

Content-Type:

text/plain

Parts/Attachments:

Parts/Attachments

text/plain (178 lines)

Just thought I would add my two cents, 

First, I think people should keep posting their responses as to issues
that are raised by Copyright Law.  I think this is illustrative of the
difficulty of the subject material.  I would hope people would be
encouraged to discuss these issues. 

Second, I think this entire response is a little unfair.  I think the
writer was pretty clear about what they meant with respect to submitting
material online.  The digitization analysis by Mr. Hirtle is as much
conjecture as the other responses.  

Third, the first response about public records was correct.  We could
argue about specific state statutes being struck down under the
supremacy clause, but that wasn't what the reader was getting at at all.


Having earned a law degree, with a concentration in intellectual
property, I still am confused with the subject and learn something new
everyday.  I don't think it is wise to necessarily insult individuals
who may or may not grasp the finer points of the law.  The bottom line
is that, whenever there is a question as to applicability of the
federal/state copyright statute to your situation, you must consult an
attorney.  Not the listserv.  

My two cents.

Chris Garmire JD



-----Original Message-----
From: Peter Hirtle [mailto:[log in to unmask]] 
Sent: Tuesday, July 25, 2006 11:15 AM
To: [log in to unmask]
Subject: Re: Digitization of microforms

Some recent rapid responses to the Archives list about copyright point
out how difficult it is to answer these questions.  I would question
almost everything that has been said.

For example, one respondent wrote:
>While other institutions may have given you permission to microfilm 
>their documents for your project, that probably did not convey 
>copyright to you for wider dissemination.

While in general this is true, the original message specified that "the
original documents are not covered by copyright."  Therefore the
response is beside point.  (We could, however, get into an interesting
discussion about whether the initial assumption that the documents are
not covered by copyright is true.  We don't have enough information to
determine if that assertion is correct.)

Here is another statement:
>I've found the copyright law helpful if I want to digitize existing 
>film as libraries can make preservation copies of material and migrate 
>material in their collections.

To the contrary, I would maintain that copyright law is likely to be of
little help when you want to digitize microfilm.  Section 108(b) of the
Copyright Law does allow an archives to make three copies of an
unpublished work "solely for purposes of preservation and security or
for deposit for research use in another library or archives," and those
copies can be digital. So the first question to ask would be whether it
is necessary to make a digital copy from film of an unpublished item
that has already been microfilmed in order to preserve it?  A strong
argument could be made that a microfilmed item has already been
preserved, and hence digitizing the microfilm does nothing further to
preserve it, and hence would not qualify for the exemption.  In
addition, one has the count issue to deal with.  If you have a camera
negative, print master, and service microfilm copy, you have made your
three copies, and could not make a digital copy unless you threw out one
of them.  Finally, it is far from clear that an archives that receives a
microfilm from another archives of an unpublished item under the terms
of this section has the authority itself to further preserve or
distribute that film.

To be fair, if one had microfilm that was suffering from vinegar
syndrome or some other problem, then 108(b) might apply.  Or if you only
had the microfilm, but not the original documents, and the material was
in the public domain, then it might be possible to digitize the film
(though you wouldn't need to do it under a copyright law exemption).
But this is at best a very limited exemption.

And how about this statement:
>But I cannot place the resulting images online unless I have the 
>copyright owner's permission since internet open access is viewed as 
>the equivalent of publishing.

This is misstated on two counts.  First, Richard Pearce-Moses defines
online as "connected to a system and available for use."  Using this
definition, if you can use section 108(b) to make a copy, then you are
allowed to make it available online so long as 1) no more than three
copies exist at any one time (which probably means that only one person
can look at it at a time, since you would also have a server copy and at
least one backup copy), and 2) access is limited to the premises of the
archives.

Second, general distribution on the Internet might require the
permission of the copyright owner not because it is "the equivalent of
publishing," but because it could be a potential violation at a minimum
of the copyright owner's rights of reproduction, distribution, and
possibly public display.  It might also be a potential infringement on
what the courts have described as the "right of first publication"
(though it would not be publishing itself, which requires the authority
of the copyright owner).

Another comment noted the international implications of our actions:
>Your comment on national and international access leads me to believe 
>you want to place these digital images online (internet) for access by
>anyone.   You may
>need to check on the copyright and ownership of these 
>materials.   If they include
>materials from foreign governments (British records, etc.), the 
>copyright laws will be different.

Copyright laws overseas are different, and not just for works of foreign
governments (as the author of this comment suggests).  James Joyce's
unpublished materials, for example, are in the public domain in Canada
(where copyright term is life plus 50 years), whereas they are still
protected by copyright in the UK, Ireland, and the US.

The interesting question is how much of a risk do you run for posting
the material online in the US.  Will you be sued overseas, and can that
judgement be enforced?  If we let foreign copyright terms determine our
laws, then you need to identify the longest terms in the world and make
sure that you don't conflict with them - a not very appealing option.
How you deal with this issue is not so much a matter of copyright, but
rather an analysis of how much risk your institution is willing to
accept.

Yet another comment noted:
>Recorded public records or public records in the US have no
copyrights!!

Works of the Federal government in the US do not have copyright, but the
situation with state and local government records is much more complex.
In general, these records are copyrighted - though some states
explicitly identify some material as belonging to the public domain (the
Illionis state code, for example, or Kentucky Supreme Court decisions).
Some court decisions have suggested that the law (state and local)
cannot be copyrighted.  And purely factual information in public records
cannot be copyrighted.  But that is a far remove from saying that all
public records in the US are in the public domain.

In sum, when assessing any response to a complex question posted to the
list, I would be highly suspicious of any response that either comes too
quickly or comes from someone who responds too often.

Peter Hirtle

A posting from the Archives & Archivists LISTSERV List sponsored by the
Society of American Archivists, www.archivists.org.
For the terms of participation, please refer to
http://www.archivists.org/listservs/arch_listserv_terms.asp.

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Or to do *anything* (and enjoy doing it!), use the web interface at
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A posting from the Archives & Archivists LISTSERV List sponsored by the Society of American Archivists, www.archivists.org.
For the terms of participation, please refer to http://www.archivists.org/listservs/arch_listserv_terms.asp.

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      In body of message:  SUB ARCHIVES firstname lastname
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To post a message, send e-mail to [log in to unmask]

Or to do *anything* (and enjoy doing it!), use the web interface at
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Problems?  Send e-mail to Robert F Schmidt <[log in to unmask]>

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