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 Section 108(b) of the Copyright Law does allow an archives to make three copies of an unpublished work "solely for purposes of preservation and security or for deposit for research use in another library or archives," and those copies can be digital. So the first question to ask would be whether it is necessary to make a digital copy from film of an unpublished item that has already been microfilmed in order to preserve it?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 Finally, it is far from clear that an archives that receives a microfilm from another archives of an unpublished item under the terms of this section has the authority itself to further preserve or distribute that film.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. To subscribe or unsubscribe, send e-mail to [log in to unmask] In body of message: SUB ARCHIVES firstname lastname *or*: UNSUB ARCHIVES 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 http://listserv.muohio.edu/archives/archives.html Problems? Send e-mail to Robert F Schmidt <[log in to unmask]>