RootsTech 2014

Some people eat, sleep and chew gum, I do genealogy and write...

Friday, April 4, 2014

Copying Online Family Trees and Copyright

A recent blog post and some comments to that post got me thinking again about copyright. The post was "What to Share, and How – Part II" by Tony Proctor on his Parallax View Blog. In light of the content, I think a few definitions are in order. To obtain a more extensive list from the U.S. perspective, see Title 17 of the United States Code Section 101, Definitions. You might want to bear in mind when you are talking about copyright that every term used has a strict legal definition. In the U.S. these individual definitions are set out in Title 17 cited herein and as modified by subsequent case law. Here are only a few definitions pertinent to my present discussion.

Copyright
A copyright is a bundle of legal rights associated with the creation of an original work by an author as defined by the statutes and regulations of a particular jurisdiction. For the U.S. see Title 17 of the United States Code. Now, I have to say that this applies in the United States because every country of the world has its own copyright law. Many of the countries, 167 to be exact, have signed on to the Berne Convention. See World Intellectual Property Organization.

Work
I think that the statute, Title 17, Section 102a and 102b of the United States Codes says it best:
(a) Copyright protection subsists, in accordance with this title, in original
works of authorship fixed in any tangible medium of expression, now known
or later developed, from which they can be perceived, reproduced, or otherwise
communicated, either directly or with the aid of a machine or device. Works of
authorship include the following categories: 
(1) literary works;
(2) musical works, including any accompanying words;
(3) dramatic works, including any accompanying music;
(4) pantomimes and choreographic works;
(5) pictorial, graphic, and sculptural works;
(6) motion pictures and other audiovisual works;
(7) sound recordings; and
(8) architectural works. 
(b) In no case does copyright protection for an original work of authorship
extend to any idea, procedure, process, system, method of operation, concept,
principle, or discovery, regardless of the form in which it is described, explained,
illustrated, or embodied in such work.
Public Domain
Guess what? This term is not defined by the United States Code. Generally, it refers to any work that does not have copyright protection for any reason.

OK, for my purposes today, that is enough. Facts have no copyright protection in the United States. They fall in the same category as ideas. Facts are not in the "public domain" because they cannot be copyrighted. A work is in the public domain as a result of some exception created by law and but for that exception, there is copyright protection. So, copyright includes every work (see definition) not specifically excluded. By the way, I should mention, at this point, that in all of the Berne Convention countries (those countries that signed the Treaty, including the U.S.) no "notice" of copyright is required or necessary to obtain copyright protection. So, for example, this blog is subject to copyright protection notwithstanding the lack of a specific claim to copyright.

A copyright interest is personal property, just like a car or computer. You can buy, sell, rent and license copyrights.

Now let's analyze the copyright protection of a "family tree," specifically one uploaded to a family tree program. The first thing you need to do is look at the Terms and Conditions of the website hosting the family tree. By putting your family tree online, you may be giving a license to the website to do all sorts of things with the content of your tree. For example, clear down at the bottom of the page on Ancestry.com's family tree pages, you will see some tiny little links, one of which, is to the Terms and Conditions. I will not reproduce the entire contents here in this post, but here is the link to the Terms and Condition regarding "User Provided Content." Among other things the Terms and Conditions provide the following:
By submitting User Provided Content to Ancestry, you grant Ancestry, its parent company and all of its affiliates, a transferable license to use, host, sublicense and distribute your submission to the extent and in the form or context we deem appropriate on or through any media or medium and with any technology or devices now known or hereafter developed or discovered.
Interesting. What have you retained, assuming of course, that you had even a colorable copyright claim to start with? Well, not much that is copyrighted. The facts, i.e. names, dates, places, sources, are definitely not copyrighted. What about notes and extended narratives? Maybe. The issue is whether or not they are "original." Notice the disclaimer of Title 17, Section 102 (b). If you are explaining your discovery, it is not likely to be copyrighted. So, you should be very cautious about putting anything you believe to by "copyrighted" on line subject to some website's terms and conditions. Technically, you retain the copyright, but that fact may be very hard to enforce.

Summary
If you are like me and you saw that there was something called a summary, you probably skipped the whole article and just read this part. I don't blame you a bit. But I do think if you are at all worried about having a copyright on anything you are producing as a genealogist, you should be very, very familiar with the terminology, meaning the definitions and the rules governing your work. Don't claim a copyright if you don't have one. If you have a copyright claim, you need to take affirmative action to preserve it. Failure to protect your valid copyright can result in you losing your copyright.

Here is the real summary. Online family trees are governed, to a great extent, by the terms and conditions of the hosting website. By putting your family tree online, you may be granting a license that effectively voids your copyright claims. In any event, only the part of your data that is "original work" is protected. I all that you have is names, dates, places and facts, you probably have no claim of copyright. Public domain has nothing to do with your claim unless you abandon your copyright and allow your work to go into the public domain or you incorporate the work of others that is already in the public domain.

That's it. Good Luck.

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