From the Arts & Humanities Research Council, Primary Sources on Copyright (1450-1900).
A recent comment to my post about U.S. Copyright law's Fair Use Doctrine, raises an ongoing issue, the continuing attempt by individuals and companies to claim a copyright interest where none exists. I do not want to get into a fight over whether or not any particular genealogical database supplier has a "copyright" claim to the content of their website, but there are a number of very large and some very prestigious genealogical institutions both for-profit and non-profit educational, that claim copyright protection for documents that a clearly not subject to any arguable copyright. For that reason, I will refrain from giving concrete examples and I will not refer to any institution by name.
In one case, a non-profit institution claimed a copyright interest in a photograph. If the photograph was as represented, then the image was made in the early 1840s. President Abraham Lincoln signed an act on March 3, 1865 adding photographs and negatives to the protected works under the Copyright Act Amendment. See Circular 1a, Copyright Office Publication. I have reproduced the original report of the Act above. There is no question that the Amended Act was prospective, so that a photo made in the 1840s was not covered by the Act and would clearly be in the public domain. Even when the 1865 Act was enacted, the provisions of the Act required the copyright claimant to transmit a copy of the photograph to the Library of Congress. If the claimant failed to deposit the required copy, the Librarian of Congress had to make a demand for the delivery of the copy and if the copy was not forthcoming, there was no copyright protection. So, for photographs in order to have ever claimed protection you had to be able to find a copy of the photograph in the Library of Congress. In addition, there is the question of the duration of the copyright had there been a copyright at all.
The photograph in question was also in public domain because all copyright protection has expired for any and all documents (works) published before 1923. See Cornell University, Resources, Copyright Term and the Public Domain in the United States, 1 January 2011.
So the question is whether or not anyone can acquire a copyright to a document in the public domain by either copying the document or incorporating it into some kind of database? No. If for any reason you need case law on the subject, please let me know. I have extensively briefed this issue and there are no cases upholding a copyright to a document that is clearly in the public domain. Did the filing of litigation by the claimant to the 1840s photograph have any effect. Yes, the company using the photograph was forces out of business because of the expense of the litigation. As I have said before, a clear case of might makes right even when the might is clearly wrong.
So what about the claims to copyright by university libraries, document repositories and other institutions? A large state university holds the written documents from my Great-grandfather. If you try to obtain a copy of the documents, the university's website informs you that the documents are "copyright" protected even though my Great-grandfather died in the 1800s. The statement made by the institution is "Restrictions on Access: Twenty-four hours advance notice encouraged. Access to parts of this collection may be restricted under provisions of state or federal law." There is a copyright notice at the bottom of the page from the catalog telling about the documents.
Under the U.S. Constitution and as initially implemented, copyright law was never intended to last forever. But many repositories use the smoke screen of the law or threats or coercion to extend their claims well beyond the limit imposed by law.