| Research | | You Copyright Your Data?
The following is a Plus Edition-only article. It is copyright 2002 by Richard W. Eastman and is restricted to subscribers to the Plus Edition of this newsletter. Please do not forward it to others.
This article first appeared in the April 9, 2001 edition of this newsletter. It has been updated significantly, so this version may be considered to be "Revision 2."
About once a week or so I receive an e-mail from a person who feels "ripped off." Each e-mail comes from someone who spends a lot of time and effort collecting genealogy information about their ancestry and then decides to share it with others on the internet. Some time later, that person finds the same information posted elsewhere, apparently by someone else who "ripped off" the information from the first person. The usual questions are: "Is this legal? Can he do that?" and "Isn’t my data copyrighted?"
There are numerous other questions about copyrights in the genealogy community. For instance, if I find information in a book, can I legally copy that information and then republish it elsewhere? How about looking up genealogy information on a CD-ROM disk and then sending the results to someone else? I also hear complaints about genealogy data being offered for free that later ends up on a CD-ROM disk being sold by a commercial company. Questions about copyrights arise time and again.
There are no quick and easy answers to these questions. However, we can examine the pertinent facts and laws to narrow the discussion down a bit, at least. I will focus only on copyright laws in the United States. The laws in other countries will probably be similar but obviously will vary in details.
First we have to define the word "copyright." A copyright is an exclusive right to reproduce a "work of authorship," to prepare derivative works, to distribute copies of the work, to perform the work, and to publicly display the work. A work of authorship must be "original" and must be fixed in a "tangible medium of expression" in order to be protected. Genealogy publications, both electronic and printed, generally fall into the "literary works" category.
The phrase "public domain" refers to all works that are not covered by copyright. This includes works that were never covered by copyright or any works on which the copyrights have expired.
All books, music, and other works published in the United States before 1923 are public domain. If you have a copy of a genealogy book published before 1923, you may freely copy anything from that book and republish it. Items published from 1923 through 1977 were covered by copyrights if the author placed a clear copyright notice on the original work. Most books published in 1923 and later do display a copyright claim. The copyrights of documents published from 1923 through 1977 lasted for 28 years, plus the copyright holder could obtain an extension for up to 67 additional years. Those works may or may not still be under copyright today. If the original copyright holder is now deceased, his or her heirs may have renewed the copyright. Therefore, you must be careful before copying data from works created in those years. Unfortunately, there is no central copyrights database to check.
In 1978 the U.S. copyright laws were changed in such a manner as to make almost everything copyrighted unless specifically released to the public domain by the author. While the wording of the law is a bit complex, the results are simple: you won’t be able to copy that information for many years yet without the copyright holder’s permission.
There is an excellent chart that explains when copyrighted works pass into the public domain. This chart was created by Dennis S. Karjala, Professor of Law, Arizona State University, and can be found at: http://www.progenealogists.com/copyright_table.htm
While data printed after 1978 generally is copyrighted, there still are exceptions. Certain things can never be copyrighted, such as ideas, facts, events, news of the day, concepts, principles, Laws of Nature, or discoveries. (I will avoid mentioning patents and trademarks, as those generally are not an issue with genealogy information.) Also not copyrightable are blank forms, plain calendars, and lists or tables taken from public documents or other common sources.
Facts cannot be copyrighted, nor can "lists or tables taken from public documents or other common sources." The definition of facts is a major issue in many genealogy works. A simple listing of dates and places of birth, marriage, and death cannot be copyrighted. These facts are public domain (in the United States, but not always in other countries) and the mere republication of these facts results in more public domain data. Keep this in mind when you publish your genealogy information online or on paper. If you simply publish facts taken from public records, your publication is not copyrighted. However, if you add biographies and personal notes and other information you found by researching non-public records, the extra information you added probably does fall under copyright protection. The same issues arise when you copy someone else’s work: you generally can copy facts, but you cannot legally copy biographies or personal notes and then republish them.
Compilations are in a category of their own. A compilation is a collection of works or data that receives copyright protection, whether or not the works it contains fall under copyright laws. A book that contains transcribed records is a compilation. Until 1991, compilations were protected by copyrights because the authors had expended considerable effort to compile them into a new work. However, the U.S. Supreme Court threw out this "sweat of the brow" argument in its decision, "Feist Publications v. Rural Telephone Service," (499 U.S. 340). Since then, the U.S. National Genealogical Society and other organizations have worked diligently to have genealogy compilations covered by copyrights. In fact, the copyrights seem to hold up if the compilation includes originality in selecting, arranging, explaining, or interpreting the original data.
For instance, if the original records of a town are difficult to read because of faded ink or poor penmanship, an expert historian with proper experience and expertise may be able to decode the information properly and then publish that interpretation of the original records. The interpretation constitutes originality and, therefore, may be copyrighted. Conversely, simply republishing data already published earlier generally does not fall under copyright. If you reprint a book containing a compilation of vital records, and the original book was printed before 1923, your new publication is not copyrighted. This is true even if you rearrange the data.
At first glance, one would think that most of the genealogy data published on CD-ROM or online would be free of copyright. However, a closer look at the copyright laws reveals a different picture. Publishers of CD-ROM and online databases have two weapons available to protect their data. The first is originality, added by the electronic search capabilities of their product. That is, the capability to find a specific record within 2 or 3 seconds in a large database constitutes "originality in selecting" records and is, therefore, covered by copyrights. The original data is still public domain, but the use of the producer’s electronic search capabilities places restrictions on what you can do with the output. The second weapon is the software license. Whether you use a CD-ROM database or search genealogy information on the Web, you still are bound by the legal terms and conditions specified by the company who produced the software you used. In short, you cannot use their software for purposes other than what they allow. This is true even when the data is clearly public domain: use of a company’s copyrighted software to search public domain data may still be restrained by the copyright statements included with that software.
If you see a request on a newsgroup or message board from someone asking for a "look up" of specific data for them on a particular CD-ROM, don’t do it! If you post the reply, you will have broken copyright laws and may find yourself on the receiving end of an unpleasant legal document. You may have broken the copyright laws because you used the software in a manner not allowed by the software license, not because of the data.
You will note that I wrote, "You may have broken the copyright laws…". The word "may" is the operative here. Some of the CD-ROM disks and the Web sites reviewed in this newsletter do allow for copying of data for further distribution, while other CD-ROM disks and Web sites do not. You need to check the CD-ROM or Web site’s software licensing terms to see what the software producer allows.
You should also be aware of one exception to the otherwise stringent copyright laws, called "fair use." Fair use allows for non-infringing copying of a copyrighted work for such purposes as comment, criticism, news reporting, teaching, scholarship, or research. In determining whether such use is fair, courts consider:
the purpose of the work (commercial or non-commercial)
the nature of the work
the amount used in relation to the whole work
the effect of the use on the market value of the work
In general, copying a small amount of a work is considered fair use unless it is the heart of the work. Going back to the earlier example of responding to lookup requests on newsgroups or message boards, such activities would appear to infringe on the heart of the work and also to have a major impact on "the market value of the work." The person receiving the information from you is less likely to purchase his or her own copy of the work, so you have illegally impacted the market value of the work in question.
Some people will say, "I don’t charge for it, so it’s legal." Wrong! Ask any lawyer. You are infringing upon the copyrights, whether you receive compensation or not.
Extracting a bit of text from a long work seems to be proper under the fair use provision. For instance, in this newsletter, you will often see me quote a few sentences from a longer work, such as a program’s help file or a Web site’s description of its services. My belief is that such a quote falls under the fair use section on news reporting. The amount of text quoted is small in relation to the whole work and would appear to have no impact on the market value of the work. Of course, I always attribute the work and then give a reference as to where the reader can find the original.
Let’s return to the original question about your data being copyrighted. Let’s assume that you post genealogy information online. Your information consists of names, dates, and places. That information was obtained from public and private records. You have published facts, and facts are not covered by copyright. Someone else may legally take your data and republish it as they see fit. Yes, they may even charge for this. That may not be the answer you wanted, but the U.S. copyright laws specifically state that facts cannot be copyrighted.
But you say, "Hold on! I added originality with my diligent research and interpretation." Well, you may be correct. However, I think you will have a difficult time proving that in court if your data simply consists of names, dates, and places.
Those who print books or large electronic texts generally enjoy more protection. Most such works that I have seen do show originality and added value. Most genealogy books have extensive explanations in the text that give not only the data but also the reasons why the author believes the data to be correct. Most authors write extensively about the conditions of the times and about the events of the ancestors’ lives. As such, these books would seem to fall under copyright protection. For this discussion, I use the word "book" to include both printed and electronic texts.
Keep in mind, however, that just because a publication is copyrighted, you cannot assume that everything in the publication enjoys copyright protection. Those names, dates, and places listed in the book are still facts, and as you now know, facts cannot be copyrighted. However, the accompanying text that explains why the author believes that John is the son of Peter and Mary instead of the son of a different couple will be protected.
The above answers are brief and only cover the questions I hear most often. A full discussion of copyright laws would fill several of these newsletters, so I will not go further. Luckily, you can find lots of expert material online. Beware, however, of the less-than-expert material that you also find online.
Sites that I respect include:
"Who Owns Genealogy?" by Gary B. Hoffman at: http://www.genealogy.com/genealogy/14_cpyrt.html
"Horror On The Web" by Myra Vanderpool Gormley, C.G.: http://www.ancestry.com/columns/myra/Shaking_Family_Tree10-29-98.htm
"Copyrights & Wrongs" by Mark Howells: http://www.oz.net/~markhow/writing/copy.htm
Other articles that are not specific to genealogy but which contain information that applies to all areas of copyright law include:
"10 Big Myths About Copyright Explained" By Brad Templeton: http://www.templetons.com/brad/copymyths.html
"Copyright & Fair use" by Stanford University Libraries: http://fairuse.stanford.edu/
"Copyright and Fair Use in the Digital Age: Q&A with Peter Lyman" by the Educom Review Staff: http://www.educause.edu/pub/er/review/reviewarticles/30132.html
"Copyright on the Internet" by Thomas G. Field, Jr.: http://www.fplc.edu/tfield/copyNet.htm
U.S Copyright Office Web site: http://lcweb.loc.gov/copyright/
To discuss this story further, please visit the newsletter message board at http://www.RootsForum.com and click on "Message Board."
The above is a Plus Edition-only article for the personal use of Plus Edition subscribers. Please do not forward it to others.
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