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an unpublished work "solely for purposes of preservation and security 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unpublished item that has already been microfilmed in order to 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unpublished item under the terms of this section has the authority 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

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