GEN-WEB AND COPYWRITE LAW
This is the letter sent to GenWeb County Coordinators with regard to the
copywrite law and our position with it. Please respect all laws and follow
these guidelines in your requests for "lookups" and information from other
individuals.
LETTER:
Sender: owner-usgenweb@nebr.dsenter.com
Date: Wed, 23 Oct 1996 20:06:25 +0000
Subject: WEB: Our Proposed Position on Lookups
Reply-To: usgenweb@nebr.dsenter.com
After much research and discussion, here is my position on the issue
of Lookups.
John Rigdon
National Coordinator
The USGenWeb Project
COPYRIGHT FAQ
It is vital for genealogists/family historians to understand
copyright laws, not only for the protection of others' rights, but to ensure
that we retain the rights to our own work.
Besides any legal ramifications; we, as a great new project, do not
want to offend our many friends who work tirelessly for little profit to
publish these great source references. We do not want to offend
those who do legitimate professional research - let us not make
these people our enemies - We want them as our partners.
It is that recognition plus concern for the organization and all
individuals involved which led to establishment of this policy.
The only way to protect the project as a whole and each of us as
participants in that project is to remove all lookup offers
for which you do not have written permissions or determinations that
the source is public domain and therefore requires no permission.
Infringement can occur from several different reasons or actions and
ALL these aspects must be considered in each case.
1. The source itself--is it copyrighted or public domain? If it is
copyrighted, who holds the copyright and what are the requirements of
that person or entity?
2. The amount and type of information taken from the source.
3. The person or entity using the information from the source --
because different rules apply to different entities. Are we equivalent
to a public library? Are we educators? Is USGenweb a non-profit
organization in the LEGAL sense? I think most of us will agree that
this project doesn't yet have clear legal claim to any of those titles
or privileges. This doesn't mean that we can't qualify, only that at
this moment we don't qualify.
4. The market effect of one's use of the information-- it will probably
be on this point that someone will eventually be sued for copyright
infringement.
We are not acting in private here. We are not merely pursuing our
private avocations. We have chosen to join a grassroots movement to
protect and preserve our family histories for our nation and the
generations to come. In doing so we have "gone public" in a big way,
and we are now subject to laws that govern such public groups.
We're all here to help the genealogical community. Folks doing
lookups should understand that authors have a legitimate right to
compensation, and a well-done lookup should include telling folks
how to buy the book when it's of significant value to their
research. Authors need to understand that genealogists have a
right to look before buying and that lookups should be perceived
as a marketing tool rather than a loss of sales.
=============================================================================
USGenWeb'S Official Policy
USGenWeb will not tolerate any copyright violations. Lookup requests
should be limited to one name, or perhaps two if it is a married couple.
Information given will be minimal, for example if it is a cemetery lookup,
the information will be the name of the cemetery and the dates on the
headstone. Please do not ask for "everybody with X surname" or an entire
family group, or for hardcopies to be mailed; the volunteers have been
asked not to comply with such requests.
Our lookups will extend to searching the book to determine if the book
would be helpful to you in your research. Should the book prove useful,
we can provide the authors address and ordering information.
The USGenWeb Project will endeavor to get a WRITTEN statement from each
copyright holder which stipulates which books may be used for lookups.
=============================================================================
Proposed wording which we need to have from copyright holders:
I grant non-exclusive permission for individuals to do lookups for the
USGenWeb Project from my publications. I am not forfeiting my rights
under 17 USCode Section 106.
I grant permission for lookups in ______________
I DO NOT grant permission for lookups in ______________
Signed______________________
Dated ______________________
=============================================================================
Here is a general overview of copyright law.
1. COPYRIGHT LAW
Since Jan 1, 1978, everything an author (including you and I) writes is
protected by copyright the minute it is written.
2. DURATION OF COPYRIGHT
Copyright protection under this law extends for the rest of the author's
life and an additional 50 years beyond it. The new law does not depend
on publication. Works by two or more authors extend 50 years beyond
the death of the last author to die. Anonymous works, works under a
pseudonym, and works for hire extend 75 years from publication or 100
years from creation.
3. PUBLIC DOMAIN
Any published/written material on which the copyright has expired is
considered to be in the "public domain" and may be used by the general
public without payment to or permission from the author. An article,
poem, etc. may be copyrighted individually, but it is also covered if
the publication in which is appears is copyrighted.
There has been some discussion that authors/publishers cannot copyright
facts. This is and isn't true. The original records cannot be
copyrighted, but for example, a compilation of them can be. Anyone,
however, is free to consult the original records and make their own
compilation and are free to do whatever they want with them. But, even
though someone abstracts/transcribes public records, they cannot be
tossed about either. The law specifically recognizes the right of the
person doing the work, in this case transcription, to be compensated for
their work.
4. COPYRIGHT BEFORE 1978
Under the old copyright law, a published work was copyrighted for 28 years
and could be renewed for another 28 years, for a total of 56 years. When
the new law was passed, that copyright protection was extended to a total
of 75 years for all works currently copyrighted. So works published earlier
than Jan 1, 1921, are in the public domain.
5. FAIR USE
The copyright act does not set down definite limitations on how many
paragraphs or words constitute "fair use" of copyrighted materials.
Instead, it sets up four criteria to determine fair use:
A. The purpose and character of the use
B. The nature of the copyrighted work
C. The amount and substantiality of the portion used in relation to
the entire work
D. Effect of the use on the market for or value of the work.
The author of The Beginning Writer's Answer Book concludes that a good
standard is to limit yourself to quoting fewer than a hundred words
from an entire book.
6. INDIRECT QUOTATION
One way of avoiding violating copyright is to paraphrase material--to
put it into your own words--or use indirect quotes. You should, however,
always give credit to the source and refrain from extensive use of
paraphrase or indirect quotes.
7. RULE OF THUMB
If use of material created by someone else diminishes the market
value of that person's work, his or her copyright has been violated.
8. WHERE TO GET PERMISSION
The publisher is the best place to write for permission to quote
from a book, poem, song or magazine article. Ask your reference librarian
for help locating the publisher's address if it is not printed in the
book or magazine. If the publisher is no longer in business, try locating
the author in Who's Who in Literature at your local library.
There is usually no fee for permission to quote from copyrighted
materials.
9. Burden of Proof in Infringement Actions
During the course of its deliberations on this section, the
Committee's [US House of Representatives] attention was directed to a recent
court decision holding that the plantiff in an infringment action had
the burden of establishing that the allegedly infringing copies in
the defendant's possession were not lawfully made or acquired under section
27 of the present law [that would be the 1909 version of the copyright
law, the 1976 act changed this], American International Pictures, Inc.,
v Foreman, 400 FSupp928 (S.D. Alabama 1975). The Committee believes
that the court's decision, if followed, would place a virtually
impossible burden on copyright owners. The decision is also
inconsistent with the established legal principle that the burden of
proof should not be placed upon a litigant to establish facts
particuarly within the knowledge of his adversary. The defendant in
such actions clearly has the particular knowledge of how possession of
the particular copy was acquired, and should have the burden of
providing this evidence to the court. It is the intent of the
Committee, therefore, that in an action to determine whether a
defendant is entitled to the privilege established by section 109(a)
and (b), the burden of proving whether a particular copy was lawfully
made or aquired should rest on the defendant.
[In other words, If someone accused you of violating the infringment
principles of copyright law, it is up to you to prove you didn't.]
17USC, Section 501, "Copyright Infringement and Remedies."
There are two provisions in the law for remedies of violation of the
copyright of a person. Both are rather severe, the person who feels
they have been violated may sue for actual damages or statutory
damages.
Actual damages include, lost sales, the profit the infringing party
may have made from the infringement, and legal fees.
Statutory Damages are fixed at $20,000 per infringement if I read the
section correctly. This one gets a bit confusing, and is covered in
28 US Code, Judiciary and Judicial Procedure.
The following web sites provide reference on copyright law:
http://www.counsel.com/cyberspace/copyright.html
http://www.nlc-bnc.ca/ifla/II/cpyright.htm
http://genealogy.tbox.com/jog/aug96/advanced.html
Contributors:
Sunni Bloyd "sunni@kingsnet.com"
Jett Hanna "JettPlane@aol.com"
John Rigdon "JRigdon@gabn.net"
Jeff Weaver "JWeaver300@AOL.COM"
John G. West "mylines@evansville.net"