THL Toolbox > Licenses, Credit & Review > Copyright Issues For Content
Contributor(s): David Germano.
This section addresses the issue of copyright as it pertains to content - books, journal articles, photos, and so forth. We do not attempt to provide specific legal advice, for that you should consult your own attorney. These comments reflect our own journey though an extraordinarily confusing subject as it relates to posting content on THL. We have had to make certain decisions that reflect copyright choices in an area of law that is constantly changing and evolving, even taking just U.S. law into account. Further complicating our work is the reality that THL content providers come from all around the world and there is no single consistent “law of copyright.” Despite international treaties, harmonization of intellectual property laws remains elusive, and enforcement systems are vastly disparate.
We have described some of our key decisions relating to content in THL below, but caution that copyright law, particularly in a web environment, is constantly changing, and we have to remain active in our own adaptations thereto. Given the confusing nature of so much of copyright law, we think specific case studies and antecedents are one of the best ways to try to provide clarity. We are thus very happy to add information about specific case studies, as well as reliable information about key copyright issues in other countries, if contributors are interested in providing such information. The list of web resources at the end of this section also offers online tools and information that are helpful in getting information about and answers to copyright problems.
US copyright law provides for the principle of "fair use." In most circumstances arising in the context of non-profit research, teaching, and scholarship, this principle allows for the reproduction of a modest portion of a published work without securing copyright permission from the publisher and/or author. However, the challenge is in determining whether your use is modest enough to qualify under fair use, or extensive enough that it does not. Each fair use situation involves weighing four independent factors: (1) the purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work. There are circumstances in which using even a small portion of another’s work without permission might involve copyright infringement. In all cases, it is important to provide proper attribution to the source.
If you get beyond a paragraph, depending on the size of the overall work from which you are excerpting it, you might run into a need for formal permission. One of the critical fair use factors takes the length of the excerpt very much into account, but how much is ok depends on the whole from which it is being taken. Thus, copying a page from a short, famous essay that was only two pages long might be considered improper without permission, but reproducing a page from an essay that is 20 pages long would likely be acceptable.
The University of Chicago Press has published some widely admired guidelines on what they consider fair use in their own publications: see their U Chicago Press Fair Use and U Chicago Press Copyright Guide. In these, they suggest not using more than 300 consecutive words, which is about half a page; this suggests that up to a page of consecutive text may be reasonable, after which one may be getting into problematic use. It also suggests not using more than 5,000 words overall of a text (about 9 pages), or no more than 5% of a work overall. It should also be noted that the guidelines indicate it is acceptable to have a "quotation for illustrative purposes, i.e., giving examples of a principle, phenomenon, etc., discussed by the user author." However, it rejects "Incorporation of copyrighted text in a work, where the text is not the subject of the work’s commentary or analysis. For example, if the author of Rural Values in 20th Century Vermont wanted to include Robert Frost’s poem “Mending Wall” in a “box” on page 159, that would require permission. The poem serves the same function as a pictorial illustration."
At THL, we are using limited quotations of published works in our Dictionary and Encyclopedia initiatives that adhere to these rough guidelines. Our position is that these works as a whole constitute scholarly resources, and that the use of these citations is thus intrinsically the subject of analytical scholarship which sits side by side with it.
In general, books that were published prior to the twentieth century are no longer in copyright and are considered “public domain” which means they can be freely reproduced and disseminated in any form, including digital reprints over the Web. However, the laws of different countries are not consistent on when a work passes into the public domain. In some countries publication date is the key factor, in others date of author’s death, which can be difficult to ascertain reliably in many cases. Often we only have access to old public domain works in recent reprints often accompanied by a recent copyright “notice.” This raises questions about whether new copyright restrictions to prevent scanning and creating PDFs of those reprints for free distribution.
This is in fact a complex question. The first thing to assess is whether the reprint includes any modifications, such as a new introduction, a sustained new format, a new index, artwork, editing, or any other significance changes that add original new value. These new elements can be copyrighted as of the date of re-publication. However, if the reprint is simply an unchanged, page identical reprint, then under US law the work it is not original enough to qualify for copyright protection and any copyright notice posted is likely not enforceable. If there is a new added component, but it can be easily identified and detached from the core of the book, it may be appropriate to reprint original text and not distribute the added component. Where it gets complex is when the recent editorial or other changes or enhancements might be substantial and scattered throughout the book itself. In such cases, it may be necessary to secure a copy of the original public domain work. In an ideal world, copies of both the old text and the reprint and are available for comparison. Where that is not possible, careful study of the new edition is critical to see what we can learn about whether it is a simple "verbatim" reprint which is likely not copyrightable, or indeed a new "work."
A related issue is that you may find the work in question in a source like Google Books, and find that it has been marked it as “copyrighted material.”This is not necessarily a reliable indication that the material is still under copyright protection. Google and other mass scanning operations are generally very conservative about what they post to avoid legal attacks. When a given text was reprinted in recent decades, and they don't have the time to do careful book-by-book checking, their default option is often to treat the work as copy-protected until such time as they can go back in and assess each text.
In conclusion, we operate under a current understanding of U.S. law today (2008) that there no copyright in a slavish reproduction of an otherwise public domain, two-dimensional object such as a book, old manuscript, or painting. THL will accept digital copies of pre-twentieth century texts or painting if that edition of the text or image has not been significantly altered by a twentieth or twenty first century editorial hand. We will expect responsible acknowledgement of the source in all instances, and reserve the right to remove content that is determined to raise legitimate copyright concerns.
Two excellent resources to assess whether a work has passed into the public domain are posted at Cornell and UNC * * http://www.copyright.cornell.edu/public_domain/ http://www.unc.edu/~unclng/public-d.htm
- How to Investigate the Copyright Status and Potential Fair Use of a Work: http://www.copyright.gov/circs/circ22.html;
- From the ALA, the Digital Copyright Slider: http://librarycopyright.net/digitalslider/
- From the VRA, the Digital Image Rights Computator: http://www.vraweb.org/resources/ipr/dirc/index.html
- Copy Photography Computator: http://www.vraweb.org/resources/ipr/computator/index.html
- The United States Copyright Office: http://www.copyright.gov/circs/circ1.html
- The University of Texas, Austin Copyright Crash Course: http://copyright.lib.utexas.edu/
- Association for Research Libraries (“ARL”): http://www.arl.org/sc/copyright/index.shtml
- Columbia University Library Copyright Advisory Office: http://copyright.columbia.edu/
- Stanford University Libraries: http://fairuse.stanford.edu/Copyright_and_Fair_Use_Overview/
- Website of the North Carolina State Libraries, Scholarly Communication Center: http://www.lib.ncsu.edu/scc/main.html
- Center For Social Media – American University; white paper on copyright: http://www.centerforsocialmedia.org/files/pdf/copyright_backgrounder.pdf
- National Paralegal College on Patents, Trademarks & Copyrights: http://nationalparalegal.edu/public_documents/courseware_asp_files/patents/menu_patents.asp
- US Copyright Office: http://cocatalog.loc.gov/cgi-bin/Pwebrecon.cgi?DB=local&PAGE=First
- Google: http://booksearch.blogspot.com/2008/06/us-copyright-renewal-records-available.html
- Stanford University’s Copyright Renewal Database: http://collections.stanford.edu/copyrightrenewals/
- The University of Texas at Austin’s Harry Ransom Center FOB (Firms Out of Business) Database http://tyler.hrc.utexas.edu/fob.cfm
- The University of Texas at Austin’s Harry Ransom Center WATCH (Writers, Artists, and their Copyright Holders) Database http://tyler.hrc.utexas.edu/
- The Visual Arts and Galleries Association (VAGA) http://www.vaga.co.uk/
- The Society of Authors http://www.societyofauthors.org/
- Stanford: http://fairuse.stanford.edu/
- Free Expression Policy Project at NYU Law School: http://www.fepproject.org/policyreports/fairuseflyer.html
- Berkman Center for Law and Society at Harvard Law School http://cyber.law.harvard.edu/home/
- Electronic Frontier Foundation http://www.eff.org/
- Center for Intellectual Property and Copyright in the Digital Environment: http://www.umuc.edu/distance/odell/cip/links.html
- VRA’s Copyright Resources and Image Calculator: http://www.vraweb.org/resources/ipr/copyright.html, http://www.vraweb.org/resources/ipr/dirc/index.html
- NINCH: http://www.ninch.org/
- Center For Social Media – American University http://www.centerforsocialmedia.org/
- Model Fair Use Guidelines by the University of Chicago Press: * http://www.press.uchicago.edu/Misc/Chicago/permissions.html
- Zwolle Group Comparative Analysis of World Copyright Law: Issues for University Scholarship http://copyright.surf.nl/copyright/files/International_Comparative_Chart_Zwolle_III_rev071306.pdf
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