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Saturday, September 17, 2011

Copyright and the Genealogist -- Part Three

A large online genealogical database charges a subscription cost to use its services. The online service has accumulated a huge number of records, many of them from government entities. Deep in the terms and conditions statement of the corporation is the statement, "Whether in the free section or in the subscription section of the Service, all Content is owned and/or copyrighted by Ancestry, or third party providers and may be used only in accordance with this limited use license. The database is protected by copyright as a collective work and/or compilation, pursuant to U.S. copyright laws, international conventions, and other copyright laws"

The "Content" of the database is defined as, "graphics, information, data, editorial and other content accessible by any registered Internet user and similar content which is accessible only to our subscribing members."

The database contains a copy of the 1980 U.S. Census. Can the online service claim some sort-of copyright to the U.S. Census records? Does the online service have copyright protection as a "collective work?" What if the online service has a scanned copy of the World War I Draft Registration Cards, can the service claim a copyright to the scanned images? Would it help you to know that Title 17 USC Section 101, the Copyright Act of the United States, defines a "collective work" as follows: "A “collective work” is a work, such as a periodical issue, anthology, or encyclopedia, in which a number of contributions, constituting separate and independent works in themselves, are assembled into a collective whole?" Do you think that the online database fits the definition of a "collective work?"

My example shows that there is sometimes a gap between what may be actually covered by copyright law and what is claimed as covered. Are the "independent works" in the online service copyrighted works in themselves? Would it help to know that works by the U. S. government are not eligible for U. S. copyright protection? See Copyright Basics, page 5. Would it also help you to know that there is a requirement that the work (i.e. the online database) has to give a notice of those portions of the work that are subject to a copyright claim and those portions of the work that are U.S. government documents and not subject to copyright? See Title 17 USC Section 105.

If you really want to get complicated, read Title 17 USC Section 201, which states in part, "(c) Contributions to Collective Works.—Copyright in each separate contribution to a collective work is distinct from copyright in the collective work as a whole, and vests initially in the author of the contribution. In the absence of an express transfer of the copyright or of any rights under it, the owner of copyright in the collective work is presumed to have acquired only the privilege of reproducing and distributing the contribution as part of that particular collective work, any revision of that collective work, and any later collective work in the same series." This section is explained by the Copyright Office in the following statement:

If you have written an article, column, or short story that has been published in a magazine, newspaper, or other periodical, you may make a separate registration for your work. This kind of work is called a “contribution to a collective work.”
Under the present copyright law, the copyright in a separate contribution to a published collective work such as a periodical is distinct from the copyright in the collective work as a whole. In the absence of an express transfer from the author of the individual article, the copyright owner in the collective work is presumed to have acquired only the privilege of using the contribution in the collective work and in subsequent revisions and later editions of the collective work.
From these examples and citations, you can probably guess why there are intellectual property rights attorneys.  Here is the point, copyright law is not something you can make simple general statements about. It is not simple and general statements are usually misleading. Deciding whether or not a work is protected may be anything but simple. You may come to the conclusion that the online data service has only a very tenuous claim to any copyright protection based on your reading of the law, but at the risk of being considered cynical, I would point out the the online database probably has a lot more money to spend on attorneys than you do.

Copyright litigation is not for the faint of heart. The Federal District Courts have original jurisdiction for all copyright cases. Even if the examples given about potential copyright issues are often expressed in terms of blog posts and personal letters and journals, Most copyright infringement cases involve large commercial enterprises. See for example, Wikipedia:List of copyright case law

Before you get too far down the road, you might want to review the holding in the case of Arizona Cartridge Remanufacturers Association Inc. vs. Lexmark International Inc., 421 F.3d 981 (9th Cir. 2005) which ruled that an End User License Agreement on a physical box can be binding on consumers who signal their acceptance of the license agreement by opening the box. By analogy, if you use an online database service, you may have agreed to the limitations in their terms of use and policies.




 

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