Copyright Fair Use and the Genealogist Part One

One of the least understood aspects of U.S. Copyright law is the doctrine of fair use. Essentially, how much of a copyrighted document can be copied without violating the copyright owner's copyright? There is no clear cut answer to this question, but there are general guidelines.

The basic source for information about Copyright law is the United States Copyright Office which is part of the Library of Congress. Like much of the law in the U.S., Copyright law has two major components; the statutory provisions and the court decided case law concerning those statutes. The statues are set forth completely on the Copyright Office website. The case law is generally available online. All of the U.S. Supreme Court cases are entirely reported and free online at the Supreme Court website and on other websites on the Internet. Only Federal Courts have jurisdiction over copyright cases so there are essentially no state court cases that apply. The Federal District Court cases from the entire country are reported on huge subscription databases such as West Law, but most of the cases are available online. For example, there is PACER, Public Access to Court Electronic Records, which has a nominal cost and is essentially free for most users. You will find most of the important copyright cases reported on the Internet complete and free if you search for them.

There is a lot of confusion in the genealogical community and in the greater U.S. community about what is and what is not subject to copyright. The first issue is what does copyright protect? The answer is found in a publication by the U.S. Copyright Office called Copyright Basics. You can download a free copy from http://www.copyright.gov/circs/circ01.pdf. But the most concise answer comes directly from the Copyright Office publication:

Copyright is a form of protection provided by the laws of the United States
(title 17, U. S. Code) to the authors of “original works of authorship,” including
literary, dramatic, musical, artistic, and certain other intellectual works. This
protection is available to both published and unpublished works. Section 106
of the 1976 Copyright Act generally gives the owner of copyright the exclusive
right to do and to authorize others to do the following:
• reproduce the work in copies or phonorecords
• prepare derivative works based upon the work
• distribute copies or phonorecords of the work to the public by sale or other
transfer of ownership, or by rental, lease, or lending
• perform the work publicly, in the case of literary, musical, dramatic, and
choreographic works, pantomimes, and motion pictures and other audiovisual
works
• display the work publicly, in the case of literary, musical, dramatic, and
choreographic works, pantomimes, and pictorial, graphic, or sculptural
works, including the individual images of a motion picture or other
audiovisual
work
• perform the work publicly (in the case of sound recordings*) by means of
a digital audio transmission

 Copyright, like most legal subjects, is not explained by quick and easy answers. Too often, comments are made about copyright law that are only partially true or even totally false but the real answer cannot be explained in a one sentence reply. Fair use is one of the most difficult areas of the law because there are no black and white, yes or no answers to the questions that arise. The danger in giving quick and easy answers is that the answer is almost always wrongly applied to a particular circumstance. For example, the Copyright Office poses the following question:

Can I register a diary I found in my grandmother's attic?

The answer is not simple. The answer given by the copyright office is "You can register copyright in the diary only if you own the rights to the work, for example, by will or by inheritance. Copyright is the right of the author of the work or the author's heirs or assignees, not of the one who only owns or possesses the physical work itself." But the answer, even from the Copyright Office is misleading, because the age of the diary is not mentioned. If the diary was written more than 120 years ago, even if it was not published, there is no copyright protection.  See Copyright Basics, pages 5 and 6.


OK, now back to the issue of fair use. Fair use is given a statutory basis by Section 107 of the 1976 Copyright Law. The entire copyright statutory law is on the Copyright Office website. Here is the entire statute on Fair Use:

§ 107 · Limitations on exclusive rights: Fair use
Notwithstanding the provisions of sections 106 and 106A, the fair use of a
copyrighted work, including such use by reproduction in copies or phonorecords
or by any other means specified by that section, for purposes such as criticism,
comment, news reporting, teaching (including multiple copies for classroom use),
scholarship, or research, is not an infringement of copyright. In determining
whether the use made of a work in any particular case is a fair use the factors to
be considered shall include—
(1) the purpose and character of the use, including whether such use is of a
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.
The fact that a work is unpublished shall not itself bar a finding of fair use if
such finding is made upon consideration of all the above factors.

Just in case you are wondering if I can cite the statute without violating Fair Use, you need to know that U.S. Government publications are generally not subject to copyright unless otherwise noted. Now, do you see how helpful the statute is to an understanding of the Doctrine of Fair Use? Really, it is not much use at all. Before you get all worked up about someone copying your blog or your genealogy you really need a whole lot more of an understanding of copyright law and its enforcement. You might start by asking the following questions for a start:


Is the document subject to copyright?
What is the purpose of the extract or citation?
How much of the document was cited or copied?
Does the citation or copied portion of the document affect its potential market or value?


I will be presenting a session at RootsTech 2012 on Copyright Law and the Genealogist. Between now and then I will continue to discuss this subject in depth. Stay tuned.