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

Thursday, September 12, 2019

Additional Comments on Claims of Ownership to Genealogical Research

This is one issue in dealing with genealogical research that refuses to go away. This round of my discussion on the issue begins with a hypothetical situation. Let's suppose that you are a "'professional" genealogist which essentially means that you expect some monetary compensation for your research for other people. In conjunction with your representation of a client, you travel to an archive and do some research on your client's behalf. In the course of your research, you copy several documents from the archive's holdings. You then write your research report to your client and get paid for your efforts. Who owns the research report? Who owns the copies of the documents you copied from the archive? What do I mean when I use the term "own" in conjunction with this hypothetical? Can a researcher make claims to "ownership" that extend beyond the protection offered by his or her country's copyright laws?

There are two concepts that apply to the answers to these questions. The first is the application of the national copyright law where the agreement for the research is made and the second is an amorphous claim of "work product."

Fundamentally, the parties to a professional services agreement or contract can agree about the ownership of the copyright and any other terms of the employment agreement. This only works, in a legal context, if the parties to the contract reduce their agreement to writing. There is a vast law of oral contracts but it would be extremely difficult to maintain a claim for copyright ownership based on an oral contract.

The professional genealogical researcher can include a provision in any employment contract that he or she retains the copyright to any of the reports or other items produced. The researcher would want to maintain this position for the purpose of using the research report in future publications. What about the document copies obtained from a library or archive? It is possible that the archive, library, or other institution already claims some sort of copyright interest to the documents and that the researcher had to comply with those requirements to obtain the copies. In the absence of an institutional claim to copyright, the documents may not be subject to any other copyright claims. In that case, the researcher cannot obtain a copyright claim to the documents by simply doing research and making copies. The researcher can obtain no rights superior to the original owner, i.e. the institution. If the institution does not claim any rights, then there is no copyright and if the researcher copies the documents and gives a copy to his or her client, the client has just as much right to the documents as the researcher. Including the documents in a copyright-protected report does not change this relationship. You cannot impose a copyright claim on a copy.

It is important to remember, in this context, you may own a copyright interest in your work but not in any copies of any documents you may find in a repository. The fact that you "did the research or work" to find the documents is irrelevant to the issue of copyright claims.

Now let's suppose that you are not a hired professional but merely doing research for your own purposes. You still have a copyright claim to any work, i.e. writing or report, you make. But there is nothing you can do that gives you the right to claim ownership to any documents you obtain through making a copy. Now, let's add one more factor: you put your information online for people to access either by putting the information in an online family tree or your own website or blog or whatever. If you add the "information" to an online family tree, it is no longer subject to any possible claim of copyright. If you add the documents to your online work or family tree, you never had any interest in the documents in the first place and so do not have any copyright claim merely because you were the one who found the document and put it online. The general rule is that information or facts cannot be copyright protected.

What about attribution? Yes, what about attribution? In an academic or other professional settings, attribution is a big deal. Let's suppose in this context that you make a copy of the document from an institution (library, archive, etc.) and you modify the document by putting your own name and other information on the document. For example, you copy a census record and then add a caption to the copy that says something like: "This document was obtained by the work effort of John Doe and cannot be further copies for any purpose." If you fail to give a complete citation to where you obtained the document you are already violating any customs of attribution. Your statement is a nullity. You obtain no additional rights to the document neither can you claim a copyright interest and if someone were to copy the document from your publication and leave off your writing, you would not have any claim at all except in an academic or professional context for attribution.

Genealogical information obtained by research comes from historical documents. Doing genealogical research and copying the information from original records does not change the nature of any copyright protection if any that the original documents made have. But doing genealogical research per se does not give you any rights just because you did the research. There is no amorphous right to a "work product" in the context of genealogical research. You either have a copyright claim or you don't.

Unfortunately, claims of ownership by researchers are usually irrational and based on a desire for recognition. The tragedy is that those who claim ownership ultimately die and their work is lost because no one appreciates the work that went into its production. From my perspective, the nice thing about personal copyright claims is that you can ignore any of your own claims and not worry about your family members copying your work. My position is that doing the work is its own reward. I appreciate recognition and attribution, but I do not stop sharing my work on the basis of any claims I may have to copyright or ownership. That said if I did find that someone had copied my work verbatim, I would probably make a request that they attribute my work. But if I put my work in an online family tree, I have no expectation of either copyright or attribution. 


  1. Personally, I've always viewed the basic facts (names, dates, places) of ancestors to be something no one can lay claim to. They same to be said for public documents & other resources. Like you, I would not appreciate it if someone was to take a whole written narrative of mine, and pass it off as their own.... but even then, I look at as a compilation of facts-- not a unique work of art.

    Of course, I do feel differently about lectures & presentations I give-- those power points & handouts have been created by me-- and I view them as unique.

  2. If you think about anything posted online, there should an implicit expectation that the information is to be copied. Copies of the material are segmented into packets, those packets are transmitted, reproduced at each step along the trace route, and finally reconstructed into a copy of whole document by the recipient equipment. The master electronic edition is stored on the host machine and duplicates are archived according to the backup policy & according to the robot crawler restrictions. The recipient system might be automatically and even the data streams of packets might be archived!

    So simply posting data ensures copies will be made.