AMIA/IASA 2010
OPENING THE ARCHIVES FOR ACCESS:
UNDERSTANDING COPYRIGHT BARRIERS
Jay Fialkov
WGBH Educational Foundation
Boston, Massachusetts
Copyright Law Background
The United States Constitution authorized Congress to enact laws "to promote the
Progress of Science and useful Arts, by securing for limited Times to Authors and
Inventors the exclusive Right to their respective Writings and Discoveries..."
The twin goals of copyright law are:
1. provide an economic incentive to authors to create original works; and
2. protect the public's interest in having access to creative works.
The efforts of Congress to address these sometime competing goals are reflected in the
copyright law's grant of broad exclusive rights to the copyright owner, subject to certain
specified limitations on those rights.
“Publication without easy access would defeat the social purpose of copyright.”
Judge Benjamin Kaplan, An Unhurried View of Copyright
Works Protected by Copyright
Copyright protects original works of authorship fixed in any tangible
medium of expression.
Rights in ideas are not protected by copyright. Copyright protects
only the actual “expression” of ideas.
Under the current Copyright Law, it is not necessary for a work to
be published in order to be protected by copyright. (Publication was
a condition for copyright protection under prior law.)
It is not necessary for a work to be registered with the US Copyright
Office to be protected, though copyright registration offers valuable
benefits.
Categories of Works Protected by
Copyright:

Literary works

Musical works (i.e, songs/compositions)

Sound recordings

Sound recordings fixed before February 15, 1972 are not protected under
federal copyright law, though they may be protected under state law. The
Copyright Office is now studying whether to extend federal copyright
protection to pre-1972 recordings.

Dramatic works

Pantomimes and choreographic works

Pictorial, graphic and sculptural works

Motion pictures and other audiovisual works

Architectural works
Ownership & Transfer of Copyrights
The copyright in a work is initially owned by the “author” of the
work.
There are special rules for co-authors of “joint works.”
For a “work made for hire,” the employer or commissioning party is
considered the “author.”
The owner of a copyright has the right to transfer the copyright to
another party, or to license limited rights in the copyrighted work.
Exclusive Rights In Copyrighted Works
Section 106 of the Copyright Law provides that the owner of a copyrighted
work has the exclusive right to:
1. reproduce the work (includes digitizing the work)
2. prepare derivative works
3. distribute copies of the work (includes making a copy of the work
available online)
4. perform the work publicly
Owners of a copyright in a sound recording generally do not have the
exclusive right to publicly perform the recording. However, Section 106
of the Copyright Law was amended to provide that a copyright owner
now has the exclusive right to perform an audio-only sound recording
publicly "by means of a digital audio transmission," such as on the
internet.

5. display the work (includes displaying the work on a computer screen)
Limitations on Exclusive Rights
For public policy purposes, the Copyright Law includes exceptions
to the exclusive rights of the copyright owner.
These exceptions include:
1. Fair Use
2. Archival exception
3. First sale doctrine
4. Compulsory mechanical licenses
5. Special provisions relating to public broadcasters
Infringement of Copyright
Infringement of copyright involves a violation of the exclusive rights of a
copyright owner.
Infringement is proved when two elements are established:
1. Ownership of a valid copyright
2. Copying of original elements of the work.
Circumstantial evidence of copying can be shown when:
1. The alleged infringer had access to the copyrighted work
2. There is substantial similarity between the works
The Copyright Law provides for substantial penalties for copyright
infringement, including “actual damages” and “statutory damages.”
Duration of Copyright Protection
For works created on or after January 1, 1978:
the period of copyright protection is for the author's life plus an additional period of
70 years after the author's death

for "works made for hire," copyright protection endures for a period of 95 years after
first publication, or 120 years after creation, whichever expires first

For works created prior to January 1, 1978 under the prior copyright law enacted in
1909:
federal copyright protection for works created before January 1, 1978 began on the
date of publication (or registration if earlier), lasted for 28 years, and then could be
renewed for an additional 28-year period.

for a copyrighted work that was in its renewal period as of January 1, 1978, the
term of copyright protection was by the current Copyright Law to last for 75 years from
the year the copyright first became effective (95 years for works published after 1922).

Works published before 1923 are no longer protected by copyright.
Public Domain
Works not protected by copyright are sometimes referred to as in the
“public domain.”
International Complications
The Copyright Law has counterparts in most other countries and is
tied to foreign counterparts by international treaties (such as the
Berne Convention) that combine to produce, in effect, a network of
world copyright laws.
The term and scope of copyright protection may vary from country to
country.
Obtaining Permission to Use a
Copyrighted Work
In order to use a copyrighted work in a way that is not specifically permitted
by the Copyright Law it is necessary to acquire a "license," or permission,
from the copyright owner.
The key terms of any license are likely to include:
1. Description of the licensed material
2. Scope of license and permitted uses of licensed material or restrictions on
use
3. Term and territory of license
4. Compensation
5. Credit
6. Representations, warranties and indemnities
Special Copyright Issues for Archivists
Identifying and locating copyright owners - Congress is considering issues relating to socalled “orphan works” whose owners may be impossible to identify and locate.
For pictures and artwork, including photographs, paintings and illustrations, sometimes
it may be necessary to obtain permission not only from the copyright owner of the
original artwork, but also from the photographer or other owner (such as a museum) of
the particular image of such artwork that is used.
Rights in music generally refer to the distinct rights in a musical composition (song) and
a particular sound recording of such composition, which rights commonly are held by
separate parties. Typically, a "music publisher" owns rights in songs, and a "record
company" owns rights in recordings. It is possible that a song or recording may be coowned by more than one party, and it may be necessary to acquire rights from each of
the co-owners.
Using film footage may involve acquiring rights in various creative elements included in
the footage, such as music, photographs, talent, etc. Some third party licenses are
issued on a "quitclaim" basis, which means the owner grants permission to use the
footage, but the owner does not claim to have, and does not grant to the licensee, rights
in any creative elements in the footage. In such cases, the producer/licensee must
obtain separately all required rights in underlying creative elements (including rights
and payments as may be required under applicable agreements with talent
unions/guilds).
Creative Commons and alternative licenses
The Art of Acquiring Licenses
1. Know what material you desire to use.
2. Understand the rights involved. Perhaps the intended use of the desired material
does not require you to negotiate for a license. Maybe the desired material is in the
public domain and not protected by copyright. Is the desired use a fair use?
3. Know what rights you desire to acquire. How will the material be used? What media
will the license cover, and what distribution channels will be used? What will be the
term and territory? Are exclusive rights required? Do you need to alter or modify the
licensed material (such as by cropping or colorizing a photo)? Do you need rights to use
a contributor’s name, likeness and bio? Do you need ancillary rights for use in other
media or merchandise? Do you need the right to use the material for promotion
purposes?
4. Find out who owns the rights you desire to acquire. In this regard, you can get help
from various source, including the Copyright Office, professional search agencies, and,
for music, the performing rights societies and The Harry Fox Agency, most of which are
accessible on-line.
5. Recognize the value of the material you desire to license, understand the perspective
of the party you are negotiating with, and educate the other party about your intended
use.
6. Allow enough time to complete the process.
Bibliography
Michael C. Donaldson, Clearance & Copyright, Silman-James Press
* Peter B Hirtle, Emily Hudson, and Andrew T. Kenyon, Copyright and
Cultural Institutions, Cornell University Library - available online at
http://ecommons.cornell.edu/bitstream/1813/14142/2/HirtleCopyright_final_RGB_lowres-cover1.pdf
Al Kohn and Bob Kohn, Kohn on Music Licensing, 3rd Edition, Aspen Law
and Business
Richard Stim, Getting Permission: How to License and Clear Copyrighted
Materials Online and Off, Nolo
For a useful chart of the term of Copyright Term and the Public Domain in
the United States, see:
http://copyright.cornell.edu/resources/publicdomain.cfm