v23 #3 Questions and Answers

Copyright Column

Column Editor:  Laura N. Gasaway  (Associate Dean for Academic Affairs, University of North Carolina-Chapel Hill School of Law, Chapel Hill, NC 27599;  Phone: 919-962-2295;  Fax: 919-962-1193)  <laura_gasaway@unc.eduwww.unc.edu/~unclng/gasaway.htm

QUESTION:  How does an educational institution get permission to use film snippets on a class Blackboard site?  Is there a difference if the institution wants to use the same snippets for executive education rather than in a regular university course?

ANSWER:  Assuming that the institution is a nonprofit educational institution, the good news is that using snippets of films in class management software for a class does not require permission.  Under the TEACH Act, section 110(2) of the Copyright Act, transmitted performances of “reasonable and limited portions” of an audiovisual work are permitted for online portion of classes.  There are a number of requirements that have to be met additionally, such as making the performance available only to students enrolled in the course, having the performance available only during the class session, etc.  If the instructor wanted to use more than a reasonable and limited portion of a film, however, permission would be required.

The question about executive education is less clear since “executive education” could mean a number of types of instruction.  Assuming that it is for continuing education or some professional certificate, that it is offered by a nonprofit educational institution, and students are actually enrolled in the executive education course, then the answer is the same.  If, however, anyone may attend the session without enrollment, then permission to use even snippets likely would be required.

QUESTION:  A librarian is in charge of her college’s archives, and the library is planning a digitization project that will include college yearbooks published between 1923 and1977.  Some of the yearbooks were published without notice of copyright.  Others contain a copyright notice with an owner (sometimes the editor and sometimes the business manager specified).  Do these individuals listed as the owner own the copyright or does the college?  There are no institutional records to clarify the ownership situation. 

ANSWER:  Yearbooks are treated just like any other copyrighted work.  For example, assume that the 1933 yearbook contains a copyright notice.  It received 28 years of protection but would have had to be renewed for copyright in 1961.  If the renewal took place, then it is still protected by copyright until 2028 (95 years after 1933).  If the renewal did not occur, and frankly, it is unlikely that the work was renewed for copyright, then it is now in the public domain.  The only way to be sure about renewal is:  (1) contact the copyright holder (the company may now be out of business though) or (2) contact the U.S. Copyright Office and pay for a search of the records.  Electronic records exist only for works registered from 1978 to the present, but those can be reviewed online directly by the public at no charge.  To search the pre-1978 records, the Copyright Office charges for the search, but the search should not take long to complete.

The yearbooks published without a copyright notice are in the public domain because they were published without notice.  Even for the yearbooks that contain a notice, it is actually unlikely that they were renewed for copyright — only about 80-85% of works were ever renewed for copyright and those tended to be works that were still being marketed at that time.  Typically, the market for yearbooks is only the year of publication.

The notices of copyright indicate that the editor or business manager own the copyright.  If the college was the owner, usually its name would appear as the copyright owner.  Without records, it is difficult to determine any ownership beyond that found in the notice.  My best guess is that the college did not own the copyright.  Today, institutions are much more likely to negotiate for copyright ownership than during those years.

Because of all of this, the library may well decide to go forward and digitize the yearbooks and simply assume the risk that no copyright owner will come forward and complain.  It might be useful to determine what strategy will be employed should an owner ever come forward.

QUESTION:  A medium-sized public library wants to record the story time for children and then replay them on the local community access channel.  Will the library need to get permission for each book?  Are there problems with filming the children who are listening to the story time reading?

ANSWER:  If a librarian was simply reading a book aloud to children present in the public library, there would be no problem because of section 110(4) of the Copyright Act which exempts certain public performances such as reading the book aloud under certain conditions which story times typically meet.  The problem raised by this question is the recording of the reading and then replaying it over the air.  There is no exception in the copyright law either for the recording or for replaying on television, even on community access channels.

On the other hand, would the copyright owner object?  It is hard to predict.  The safest course would be to seek permission from the publisher and to ask to record the reading and play the video over the community access channel.  In fact, the library could ask the publisher for permission for several titles at once and see what the response might be.

Concerning the filming of children participating in story time, there are serious legal issues.  It will require parental permission, etc.  As important as those issues are, they have nothing to do with copyright.  The public library should consult with the city or county attorney about this issue and what releases may be required to permit the filming.

QUESTION:  When someone produces a genealogical transcription, is that transcription copyrightable?

ANSWER:  A genealogical transcription may be defined as a readable version of a document in which the original handwriting is difficult to read.  Any copyright would exist in the original document and would belong, at least initially, to the original author.  In all likelihood, the work was not published but remained in manuscript format or was a handwritten document.  So, the work was protected by common law copyright if it was created before 1-1-78.  This meant that the work was ineligible for federal copyright protection because it was not published, but it also meant that it never entered the public domain.  When the Copyright Act of 1976 was enacted, Congress set a date at which unpublished works would enter the public domain.  For such works that existed on 1-1-78 but which remained unpublished through the end of 2002, they entered the public domain at the very end of 2002 or life of the author plus 70 years, whichever was greater.  If the works were published between 1978 and the end of 2002, it does not enter the public domain until the end of 2047 or life of the author plus 70 years, whichever is greater.

Even though the transcription is a very useful thing, it does not create a new copyright in the work.  On the other hand, a compilation of transcriptions, as long as the compilation is not a total universe of documents (such as all of the letters of a particular writer), the compilation might be copyrightable as a compilation.  The compilation itself has to be original, and that means that there is sufficient creativity in the combination of the selection of items to include, in the indexing, the organization, or in value adding to the material.

Oddly, if the work is in the public domain and someone translates it into a foreign language, the translation may be copyrightable as a derivative work since translations have been held to meet the originality standard.

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