More about scanning and copyright

Judy G. Russell, the Keynote speaker for #RootsTech 2014, had a recent blog post entitled "Copyright and the book scanner." In starting my discussion of Judy's very fine and informative article and which I recommend to everyone, I would like to confine my analysis of the issues to a very narrow area of publication, that is, surname books. Most books about an ancestor fall into the category of "surname books." These can be all the descendants of a remote and usually prominent ancestor or an ancestor type book tracing one or more lines of a family off into the dim past. These family books are usually "self published" meaning the author paid to have the book produced and not the other way around. Historically, the publishing industry "published" books offered to them by authors and paid the authors a royalty, like a commission, on the sale of each book. Today, the tables have turned and authors can publish their own books online and can even look forward to making a decent return on their writing investment. Books sold on the market and published by a publishing company for the general reader are usually known as "trade books." The extremely limited appeal of a surname book made it almost impossible for an author to find a publisher who would venture to publish a book that was guaranteed not to sell.

In contrast, surname books have always been published by the so-called "vanity" press; those publishers who would publish any book as long as the author paid the cost plus a profit to the publisher. Even today, with the availability of authors to publish their own ebooks, there is still a market for the small custom publisher who will take a manuscript and turn it into a paper book. Usually, there are no more than a few dozen copies of the book printed and often the author ends up with copies he or she cannot sell, even to family members. If these books have any value to family members, they only have that value when they are availalbe

Now, as Judy says in her post quoting 17 U.S.C. §108(e) (United States Code):

The only time an entire work can be be legally copied is when it is impossible to obtain a copy of the work at a fair price. Not inexpensively, mind you. The test isn’t whether our wallets would be thin if we bought a copy. It’s whether the price for the work is fair — and that can be a lot higher than we might like.

In my opinion, when you consider the small scale publishing of a surname book with a common trade book, there are significant differences that I think should be legally recognized. It is clear from Judy's article that if I found a surname book about one of my remote ancestors, assuming the book was published in the United States after 1923, I would be in violation of the author's copyright to make a copy of the entire book. In my opinion it is unfairly giving the author an interest in his or her own genealogy that they would not normally have under the law. Facts cannot be copyrighted.

I can see arguments where the author originated much or all of the material in the book. Then by my definition, it is no longer genealogy, but fiction. But let's just suppose that the author really did add some significant portions to the family history. Are we prepared to grant copyright protection to a story about my great-grandfather? Apparently we are, since there is no exception for books about genealogy and telling the history of the ancestors. Theoretically, I could go to the same sources used by the author and find the same information which would, of course, not be copy protected. But what of books where there are no sources? I guess you could argue that if there are no sources, I should not be interested in the book. But that is not always the case. What about books incorporating a lot of old photographs, should the author be allowed to prevent the copying of the photos in the book, even if the photos came from a source outside copy protection. I seems wrong to me that we have created a system where one of my relatives can keep me from copying stories and photos about my own relatives.

I often say we don't own our ancestors, but apparently we do in the area of published family histories. I would suggest that a more rational approach would be to allow the author to have a copyright if they print for the trade or if they print more than a arbitrary number of copies. Otherwise the book should be freely copiable. There might be an argument that the author should be allowed to recover the cost of printing and publishing, but beyond that, for books with extremely small number of readers and potential sales.

At some point, the author could also be allowed to release the work into the public domain. Once again, read Judy's article and decide for yourself.