Contracts & Copyright

This post is spurred by a number of conversations I’ve had recently with close friends and more distant acquaintances, about use and/or publication of archival materials, and materials from subscription databases. Rick Anderson’s thoughtful “Asserting Rights We Don’t Have” post, which was published in the midst of these discussions, was also a contributing factor to this post.

None of this is new. Peter Hirtle points out in the comments to Rick’s piece that he’s been having this conversation with the archival community for quite some time. Other people link to some related scholarship in those comments. Kenny Crews has done related research and outreach to the libraries and archives community. So have I. But there seems to be a lot of attention swirling around this from the -user- side right now (which is great! This is a constituency that needs to be paying attention -and- needs to have attention paid to it!)

As far as I can tell, Rick’s post is 100% correct in the statements he makes about law. But it’s maybe worth pulling some of those points out into very concrete form:

  1. Owning a physical object does not automatically convey ownership of any copyrights that may be related to that object. You buy a book; you do not own the copyright in that book. A museum owns a painting; they do not necessarily own the copyright in that painting.
    It’s possible to -get- the copyrights related to an object when you acquire the object – but they do have to be explicitly addressed for that to happen.
  2. When a work is in the public domain (i.e., the copyright in that work is over, or did not exist in the first place), we often say “no one owns it”. Sometimes “everyone owns it” is a more useful way of looking at things. 
  3. Making an accurate reproduction of an existing work (e.g., scanning an existing painting) does not create a new copyright, under U.S. law.  When a reproduction of an existing work contains new creative expression, that -can- create a new copyright in the new work.
    Corollary: there is no copyright in accurate reproductions of public domain works, unless there is also additional new creative expression. 
  4. It’s impossible to grant copyright permissions, to transfer the copyright, to grant a license, OR to make fair use of a work that is in the public domain. Because all of those require the existence of copyright, and with a public domain work, there isn’t one.
  5. Contracts are legally binding documents, especially where you had the option to read & negotiate terms, and/or took action indicating agreement with the terms.
    Relatedly: other people, like employees or institutions with which you are affiliated, can often agree to contracts on your behalf.
    Also: Little bits of text at the bottom of a webpage, and terms of use that you never agree to (i.e., ‘browsewrap’ licenses) are rarely binding contracts.
  6. Violating a contract generally poses risks to the ongoing relationship
    with the other contracting parties, and can present the risk of a
  7. Controlling access to a unique or rare object can create an opportunity to impose contractual limitations as a condition of access to that object. 
  8. Employers generally own the copyright in works created by employees as part of their job.
  9. In the United States, there is almost no statutory law on attribution, citation, or credit.

This isn’t that complicated a list of legal issues, but they way they interact and intertwine – and much more importantly, the cultural expectations of various groups of people who interact around them – lead to a whole -slew- of complicated implications for the practices of archivists, researchers, artists, photographers, subscription content vendors, libraryfolk, and other people who have anything to do with any of the aforementioned groups.

A few basic implications:

  • If you (or someone who is authorized to do so on your behalf) agree to conditions of access to a particular resource or set of resources, there may be contractual limits on your use of those resources separate from those imposed by copyright – you may need permission to use them, or only be able to use them in certain ways, even if they are in the public domain!
  • If you have access to public domain content in a way that is not governed by a binding contract, no one else has any say* in how you use that content.
  • It is impossible to grant a Creative Commons license on a work that is in the public domain. (CC0 is a very useful legal tool when jurisdictions differ on public domain status, because it does not assume copyright exists in the work – it’s more like “to the extent there -is- any copyright, I don’t want it.”)

I started trying to write about all those implications in a single post, and it got too TL;DR even for me. I’ll try to break them down in a series of posts in the next few days.

*okay, okay, rights of publicity, privacy, etc may still be relevant. Also, people who control your use for other reasons (e.g., publishers , employers) may still impose limits or requirements. Bleh.

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