7/30/2019 Copyright Issues with Digitizing Photographs in Memory Institutions

1/20

Copyright Issues with

Digitizing Photographs

in Memory Institutions

Catherine Hrbal

7/30/2019 Copyright Issues with Digitizing Photographs in Memory Institutions

2/20

O Memory Institutions: Institutions that store

our collective memory

O Galleries, Libraries, Archives, and Museums

7/30/2019 Copyright Issues with Digitizing Photographs in Memory Institutions

3/20

What are digitized photos?

7/30/2019 Copyright Issues with Digitizing Photographs in Memory Institutions

4/20

7/30/2019 Copyright Issues with Digitizing Photographs in Memory Institutions

5/20

7/30/2019 Copyright Issues with Digitizing Photographs in Memory Institutions

6/20

PreservationO The physical medium of the photograph will

continue to deteriorate over time

O Digitizing the photo is an attempt to captureand preserve the information as it exists today

7/30/2019 Copyright Issues with Digitizing Photographs in Memory Institutions

7/20

AccessAccess refers to making the materials available to

patrons

O Viewable from storage media from within the

archive

O Disseminating the material to users, e.g. via the

internet

O Also allowing copying of the images, especially

at a useable size

http://www.flickr.com/photos/library_of_congress/2

179038448/sizes/o/in/set-72157631581164451/

http://www.flickr.com/photos/library_of_congress/2179038448/sizes/o/in/set-72157631581164451/http://www.flickr.com/photos/library_of_congress/2179038448/sizes/o/in/set-72157631581164451/http://www.flickr.com/photos/library_of_congress/2179038448/sizes/o/in/set-72157631581164451/http://www.flickr.com/photos/library_of_congress/2179038448/sizes/o/in/set-72157631581164451/

7/30/2019 Copyright Issues with Digitizing Photographs in Memory Institutions

8/20

Is This Legal?O Digitizing for preservation is legal for

memory institutions under Section 108

O So, the archive can digitize the image, store iton site, and patrons can travel to the site to

view them

7/30/2019 Copyright Issues with Digitizing Photographs in Memory Institutions

9/20

But what about access?O Posting thumbnail size images in an online

search engine is acceptable (Kelly v. Arriba

Soft)O Posting the images online for the publics

education covered under Sections 107 & 108

O Hathi Trust Libraries still protected by

Section 107

7/30/2019 Copyright Issues with Digitizing Photographs in Memory Institutions

10/20

7/30/2019 Copyright Issues with Digitizing Photographs in Memory Institutions

11/20

Copyright Terms

Unregistered CopyrightO Personal copyrighted photos: life of the creator

+ 70 years (or if the photographer died before

1942)O Works for hire, e.g. for a news service: 120

years from date of creation (or, photos taken

before 1892)

O No longer have to register copyright (BerneConvention)

7/30/2019 Copyright Issues with Digitizing Photographs in Memory Institutions

12/20

Copyright Terms

Registered Copyright

O Images created before 1923: public domain

O After 1923 requires research to determine ifthe image is still under copyright protection

O Many memory institutions do not have the

resources to dedicate to copyright research,

but they still want to share their images

7/30/2019 Copyright Issues with Digitizing Photographs in Memory Institutions

13/20

Unpublished worksMany photos encountered in an archive were personalphotos that were never published how do we treatcopyright on these?

O According to section 303 of the 1976 Copyright Act, worksthat were created but neither published nor registered in theCopyright Office before Jan. 1, 1978, lost their commonlaw protection and acquired a statutory term of protectionthat was the life of the author plus 50 years, amended in1998 to life plus 70 years.

O That first 25-year period expired on Dec. 31, 2002. Anywork that was neither published nor registered as of Jan. 1,1978, and whose author died before 1933 entered thepublic domain on Jan. 1, 2003, unless it was published on

or before Dec. 31, 2002. If the author died in 1933 or later,the work will be protected for 70 years after the authorsdeath, due to the passage of the Sonny Bono CopyrightTerm Extension Act in 1998.

7/30/2019 Copyright Issues with Digitizing Photographs in Memory Institutions

14/20

Orphan WorksO A copyrighted work where the owner cannotbe identified and contacted

O Memory Institutions are still infringing if they

post orphan works that are still undercopyright

O Some cases attempting to protect memory

institutions

O Authors Guild v. GoogleO Hathi Trust

7/30/2019 Copyright Issues with Digitizing Photographs in Memory Institutions

15/20

Bills that would have addressed

Orphan WorksO HR 5889 & S.2913

O Would have eliminated compensation for

orphan works if the infringer is a nonprofiteducational institution, museum, library, or

archives, or a public broadcasting entity and

took the material down promptly

O

Both died in committee

7/30/2019 Copyright Issues with Digitizing Photographs in Memory Institutions

16/20

But, how do memoryinstitutions share images

online while informing theiraudience that they may not

be in the public domain?

with disclaimers

7/30/2019 Copyright Issues with Digitizing Photographs in Memory Institutions

17/20

No Known CopyrightRestrictions

O This is a disclaimer used by memory

institutions to state that they do not know ofany restrictions on that particular image

O This is no real legal protection

7/30/2019 Copyright Issues with Digitizing Photographs in Memory Institutions

18/20

New York Public Librarys No Known

Copyright Restrictions Disclaimer

NYPL's images that are part of The Commons on Flickr are marked "no

known copyright restrictions," indicating that NYPL is unaware of any

copyright restrictions on the works so designated. Because the photos in

our collections were not taken by NYPL, we are not in a position to

provide advice to users about what uses of our photos are permitted and

what uses require you to obtain additional consents.

Even though we believe the images we have uploaded to The Commons

on Flickr are in the "public domain" and thus not subject to copyright

restrictions, these photos may be subject to other third party rights, such

as rights of privacy and rights of publicity. In all instances, you are

required to obtain all necessary permissions before using our photos. For

example, if you find a photo from NYPL's collections that includes a

person, you would be responsible for obtaining the permission of the

person in the photo before you use the photo. Please read the Terms and

Conditions of our website for more detailed information about these

issues:http://www.nypl.org/legal/

7/30/2019 Copyright Issues with Digitizing Photographs in Memory Institutions

19/20

Your digitized imagesare not copyrightable

Bridgeman Art Library v. Corel you cannot

copyright your copies of public domain works

7/30/2019 Copyright Issues with Digitizing Photographs in Memory Institutions

20/20

Any Questions?