The most annoying copyright issue

Last week at RootsTech 2012, I presented a class on copyright. Contrary to most of the classes I teach, the audience was highly participative and asked a lot of insightful questions. One reoccurring question involves what I term, the most annoying copyright issue, particularly from a genealogical perspective although the issue also affects historians and others who deal with old documents. I even had a comment after class from a representative of one of the large online database companies that pointed out the crux of the issue.

Simply put, the issue is this. Many institutional websites that contain old documents and photographs apparently claim a copyright in the web pages and make readers assume a de facto copyright interest in the documents or photographs. I hesitate to give concrete examples because I do not want to get into a situation where the entity claiming the copyright either disputes my observation or makes an infringement claim against me because I copied their web page.

If you haven't noticed, check the bottom of the page of some of the more popular online record databases and notice that the pages have a copyright notice. In some of the databases, the claim appears on every page, including pages where abstracts or summaries of the data appears, but is not present on the pages with actual images of old documents.

For the purposes of this discussion I make several assumptions. First, that the documents shown on the website are clearly not subject to anyone's copyright claim. For example, they are documents from the 1800s in the U.S. Second, that the pages in the website with the scanned images of old documents, claims a copyright to their own original work. In extreme cases, I have seen collections of old photographs that have been digitally watermarked before being loaded online with an ownership or copyright claim from the website owner. I can only assume that some where, some attorney has told these folks that they can claim ownership of public domain documents by putting their own copyright notice on the document. That is simply false.

If anyone cares, I can cite statutory and case law to the effect that an entity cannot create a copyright interest in a public domain document merely by making a copy and claiming a copyright in the copy. Additionally, no entity can assume a copyright merely because they have the original public domain document in their possession or claim ownership of the document. Copyright status is not conferred by mere ownership. For example, a book can be purchased from a book store, but your ownership of the book in no way changes the copyright ownership interest of the author or whomever.

In fact, I will go so far as to say that it is morally reprehensible and dishonest to claim a copyright interest in a public domain document, especially if there is no possible dispute that the document is really in the public domain. I might mention here that it is also as morally reprehensible and dishonest to steal someone's copyrighted work and publish it as your own. Both situations involve misrepresentation of the copyright state of the original work.

Here is one concrete example. Here is a quote from the book Tanner, George C. William Tanner of North Kingstown, Rhode Island, and His Descendants. [Minneapolis, Minn.]: Pub. by the author, 1905.

It is said that the Tanner name in England dates from the 
time of William the Conqueror. 

The name appears in history in the time of Edward the 
Third (1312-1377). Their estates lay in the county of Corn- 
wall; and later, the name appears in other parts of England, 
Wales and Ireland. At this date it is difficult, if not impossible, 
to ascertain to what branch of the Tanners in England the 
American Tanners belong. It is the opinion of the writer that 
they are English, and that the Tanners of Ireland and Wales 
are also of English origin. There are many Tanners in 
America from Switzerland. But it may be that these are also 
of English ancestry, having left England, as did many others, 
on account of religious and political troubles. One, at least, 
of the Tanners in the New York regiments in the Revolution 
was of Dutch or German ancestry. Amid this uncertainty, 
the only claim which will be made here is, that the Tanners 
are an old and respectable English family, with here and there 
an honored name, among which is that of Bishop Thomas 
Tanner, of the Diocese of St. David's in Wales, archeologist 
and writer, whose contributions are to be found in the Bod- 
leian library at Oxford, England. 

This book was published in the U.S. in 1905 and cannot be subject to a copyright claim. But what about this blog post? Is it copyrighted? The simple answer is yes. Is the above quote subject to my claim of copyright simply because I included it in my copyrighted document? The answer is no. The key here is that both copyrighted and uncopyrighted material can appear on the same page at the same time.

This subject now begins to get complicated. Perhaps I will stop for a while and pick this up later.