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Copyright issues for US archivists
Published online by Cambridge University Press: 06 June 2016
Abstract
Despite the overall complexity of United States copyright law, the basics that an archivist needs to understand are relatively straightforward and manageable if taken element by element. This article highlights ten core issues that archivists, both in the US and elsewhere, would be well-advised to study.
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- Copyright © The Art Libraries Society 2012
References
1. Note: the author is not a lawyer, and is not offering legal advice, but an overview of copyright issues. Copyright law is very case specific - consult your institutional legal counsel for particular questions.Google Scholar
2. Indeed, contrary to the a-historicism of the Supreme Court, Paul Heald and Suzanna Sherry have argued convincingly that the clause contains implied and absolute limits on Congressional power. Heald, Paul J. and Sherry, Suzanna, ‘Implied limits on the legislative power: the intellectual Property clause as an absolute constraint on Congress’, University of Illinois Law Review No.4 (2000): 1119–1196. They noted (p. 1160): ‘The overwhelming weight of the historical and structural evidence pushes us inevitably to the conclusion that the Intellectual Property Clause was included as both a grant of power to Congress and also as an absolute limitation of its power.’Google Scholar
3.
Twentieth Century Music Corp. v. Aiken, 422 U.S. 151, 156 (1975).Google Scholar
4. 17 U.S.C. § 201 (b).Google Scholar
5. These definitions are drawn from McCarthy, J. Thomas, McCarthy’s desk encyclopedia of intellectual property (Washington, D.C.: The Bureau of National Affairs, Inc.), 1991.Google Scholar
6. The ‘visual artists rights’ are the only formal intrusion of the so-called ‘moral rights’ into US federal law. Under the Berne Convention (Article 6bis), moral rights could include: 1) droit de divulgation, the right of authors to control the circumstances in which the work will be released to the public; 2) the right to withdraw a work from circulation; 3) droit de paternité or the right to claim attribution as the author and the right not to be falsely named as author; 4) integrity right or the right to prevent mutilation of a work; and 5) droit de suite – the right to share the proceeds of future sales, as might pertain to works of art.Google Scholar
8.
Campbell v. Acuff-Rose Music, 510 U.S. at 578.Google Scholar
9. Columbia University Libraries/Information Services, Copyright Advisory Office, Fair Use Checklist, http://www.copyright.columbia.edu/fair-use-checklist/.Google Scholar
10. 504 (c) 2: ‘The court shall remit [pardon or abate] statutory damages if infringer had reasonable grounds to believe that the use of the copyrighted work was a fair use under section 107.’ This provision applies only in the case of copying by nonprofit educational institutions, libraries or archives, and public broadcasting entities, and one still has to have made a fair use assessment. Note, the complete text of the most recent version of the law can be found at http://www.copyrighťgov/titlel7/.Google Scholar
11. Note: the intricacies that can affect the term for a work are considerable, and before assuming a work is either in the public domain or still in copyright, one should examine either of the two following sources, both of which are readily available on the Internet: United States, Library of Congress, Copyright Office, Circular 22: How to investigate the copyright status of a work, 2010, http://www.copyright.gov/circs/circ22.pdf; and Hirtle, Peter, Copyright term and the public domain in the United States, 2011, http://copyright.cornell.edu/resources/publicdomain.cfm.Google Scholar