Copyright Guidelines

 

V.  Library Reproduction

 

F. Digitization Projects

 

Both §107 and §108 of copyright law, as well as other considerations, such as the rights conveyed in a deed of gift, may be relevant when considering digitization projects in the library. This section of the Copyright Guidelines sets forth relevant questions to consider (in order) when considering digitizing and posting of materials in the library’s collection.

 

1.  Is the item in the public domain? If the document was published before 1923, or unpublished and the author has been dead for 70 years, or published between 1923 and 1989 but without a copyright symbol, or published between 1923 and 1964 with no copyright renewal, then the work is in the public domain. Foreign works are subject to special rules, but U.S. law governs the exercise of copyright rights within the U.S.  See When Works Pass into the Public Domain for a chart that addresses this topic. If the item is in the public domain, the item may be digitized and posted.

 

2.  Was there a written instrument of gift? For items created by the donor, look at the written instrument. Sometimes the written instrument of gift is not a deed of gift but simply a letter or memorandum of understanding from a donor. The donor may have granted copyright to the library or otherwise specified his/her intent with respect to use of the document.

3.  Is the proposed use a fair use? For documents not in the public domain, and for which the deed of gift is not relevant (i.e. letters written to the donor) the fair use four factor test should be considered when analyzing what may be done with a document or other artifact. If there is doubt about the copyright status of a work, consider limiting use to individuals within a certain department or the university community. This may strengthen a fair use argument in that the use of the work will not have a negative effect upon the market, if one exists for the type of use you contemplate.  

4.  Does the 20 years rule apply to the proposed use?
Section 108 (h), which addresses reproduction by libraries and archives, contains a provision that allows reproduction and distribution of a work that is in the last 20 years of any term of copyright, for the purposes of scholarship, preservation or research as long as the work is not subject to normal commercial exploitation, a copy of the work cannot be obtained at a reasonable price, or no notice has been given by the copyright owner or agent that either of these two conditions applies to the particular work.

5.  Has permission been obtained?
Assess who the publisher of the work is, and if they are still in business. Has the copyright reverted to the author? If an owner of the copyright can be identified, permission should be sought for works not in the public domain or subject to fair use or the last 20 years rule.

6.  Is this an orphan work?
If no one can be found who can grant permission, then the work is an orphan work. While there is some legal risk to digitizing and posting an orphan work, the risk is minimal, and can be weighed against the value of including the item in the project.

7.  Other Factors

      Other legal factors may also need to be considered, such as invasion of privacy.

 

 

 

 

Updated 4/23/09 to add link to fair use, and delete duplicative text