The Western European concept of property ownership as inherited by the United States of America is a very technical and complex subject. The folklore associated with ownership is even more complex. To start out, for example, you may have heard a saying that "possession is 9/10th of the law." Unfortunately, this commonly quoted concept is almost entirely false. Genealogists, because they work with books, documents, and records, get involved in a number of issues involving property ownership of one kind or another. Focusing on the United States, the initial fundamental issue that needs to be understood is that no property rights, either for real property (land) or personal property (everything else) are absolute. Because we all live in the United States, we are all subject to the ultimate ownership rights vested in the Federal, State, and local governments.
How are governmental property rights absolute? Because governments have the right to tax property and can levy against both real and personal property to assure payment of those taxes. Simply put, if you don't pay your taxes, you can lose your property to the government entities. In addition, the United States Constitution has created other government administrated property rights that are superior to any other claims of ownership. The most common of these established property rights that affect genealogists are those dealing with rights to intellectual property through the complex, archaic, and poorly understood laws of copyright, trademark, and patents. As genealogists, there are a number of important laws from the 18th Century that still govern how we conduct our lives and our business interests but the laws of copyright affect our genealogical research lives more directly than some of the other residual laws.
The United States copyright law originated with Article 1, Section 8, Clause 8 of the Constitution which states:
[The Congress shall have power] “To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.Subsequent to the enactment of the U.S. Constitution, the Copyright Law has grown into a strangling jungle of statutory provisions from the United States Legislature and case law imposed by the Federal Court system. The statutory law is also modified and augmented by Title 17 of the United States Code. Here is a short summary of the existing Copyright law (minus the Federal Court decisions) from the Copyright.gov website of the U.S. Copyright Office which is under the administration of its parent agency, The Library of Congress. The Copyright Office administers the national copyright system and provides advice on copyright law to Congress, federal agencies, the courts, and the public.
This publication contains the text of title 17 of the United States Code, including all amendments enacted by Congress through June 30, 2016. It includes the Copyright Act of 1976 and all subsequent amendments to copyright law; the Semiconductor Chip Protection Act of 1984, as amended; and the Vessel Hull Design Protection Act, as amended. The Copyright Office is responsible for registering intellectual property claims under all three.
The United States copyright law is contained in chapters 1 through 8 and 10 through 12 of title 17 of the United States Code. The Copyright Act of 1976, which provides the basic framework for the current copyright law, was enacted on October 19, 1976, as Pub. L. No. 94-553, 90 Stat. 2541. The 1976 Act was a comprehensive revision of the copyright law in title 17. Listed below in chronological order of their enactment are the Copyright Act of 1976 and subsequent amendments to title 17.
Chapters 9 and 13 of title 17 contain two types of design protection that are independent of copyright protection. Chapter 9 of title 17 is the Semiconductor Chip Protection Act of 1984 (SCPA), as amended. The SCPA was enacted as title III of Pub. L. No. 98-620, 98 Stat. 3335, 3347, on November 8, 1984. Chapter 13 of title 17 is the Vessel Hull Design Protection Act (VHDPA), as amended. The VHDPA was enacted on October 28, 1998, as title V of the Digital Millennium Copyright Act (DMCA), Pub. L. No. 105-304, 112 Stat. 2860, 2905. Subsequent amendments to the title 17 provisions for SCPA and the VHDPA are also included in the list below, in chronological order of their enactment.Now let's get down to some specific examples of how copyright law can affect genealogists and of course everyone else in the United States.
Let me do this by means of some hypothetical situations. Let's suppose that as a genealogist you learn about a book written by one of your relatives about your family. You try to contact your relative but find out that she is dead. You try and find a copy of the book and are surprised to learn that she only printed a dozen or so copies and all of those were given to her children and immediate family members. After a great deal of effort, you finally locate a copy of the book that you can borrow from one of the relatives who received the book from the author. Can you make a copy of the entire book? Who could give you permission to make such a copy, i.e. who owns the copyright to the book if there is one? Could you upload a copy of the book online on one of the major genealogical websites so others can have access to the book?
Now let's look at some of the laws regarding copyright. First of all, when was the book published? Hmm. You find out the book was published in 1963. Is the book still covered by U.S. Copyright Law? We can answer some of these questions by referring to the Cornell University Copyright Information Center publication entitled, "Copyright Term and the Public Domain in the United States." That publication gives us a number of possible options depending on whether or not the book (publication or work) contained a notice of copyright. So, you go back to the copy of the book and look for a copyright notice. Now we have to suppose there are two possibilities, that the book either has such a notice or it does not. For a book (or other publication or work) published from 1924 to 1977 if there is no copyright notice, then there is no claim to the copyright and the book is in the public domain because of failure to comply with the then existing formalities. Now what? Well, even if the book has no copyright claim or mark or whatever, if the person registered a copyright claim within five years of the date of publication, then the copyright is in existence for 70 years after the death of the author. There is another qualification in the event the book is a work of corporate authorship, but I will leave that issue to another post if I get around to it.
How do you determine whether or not the author ever registered the copyright? Now you step off into the morass of copyright law. To start, you can begin your search by looking in the Catalog of the Library of Congress to see if they have the required copies of the book. Copyright registration in the time period in question involved depositing with the Copyright Office (Library of Congress) two copies of the original publication and filling out the application.
But how can you be sure the book is not covered by copyright? The practical answer to this question is you cannot. Theoretically, you could come to a reasonable conclusion that the book either was or was not covered by a claim of copyright, but even if you were to get to this point, you would still have to deal with whoever ended up with the potential copyright ownership, i.e. which of the heirs of deceased author inherited the copyright. Unless the author made a specific bequest in her will concerning the ownership of the copyright, the ownership rights would probably pass according to the law of the state where the deceased author died but the issue of the legal jurisdiction of the copyright ownership might also be difficult to resolve.
Let's suppose that the relative with the book does not want his or her copy and gives it to you. Do you now have the right to copy or republish the book? Unfortunately no. This is where the possession interest is falsely interpreted. Your possession of a copyrighted book or other publications is extremely limited. This also applies to any such book or publication that you purchase. So, even if you purchased a copy of the book from one of your relatives, purchasing a book does not confer any rights that are reserved by virtue of the Copyright Laws. It is only if the book is found to be in the public domain that you could copy or republish the book with impunity.
But what if you just want to use the information in the book? Facts are not subject to copyright, but that still does not give you the right to any portion of the book that is not factual. This issue leads us to the futher doctrine of fair use (usually the Doctrine of Fair Use). The only way I could explain the Doctrine of Fair Use would be to write a book-length post on the subject and that still would not be enough. Issues of fair use are decided one by one by the courts.
So even if you are reading this and looking across the room at your bookcase full of books, you have to realize that your "ownership " of those books is not absolute. Any book, publication, or work may be subject to copyright claims. Can you still function as a genealogist and avoid copyright issues? Yes, sort of. I do know of a few instances where genealogists have gotten into battles over copyright claims. The best practice is to become aware of the basic copyright laws and be circumspect in copying anything that is arguably subject to a copyright claim.
For an extensive discussion of fair use see Columbia University Libraries, Copyright Advisory Services, for an in-depth discussion of the issues involved.