Frequently Asked Questions about Copyright

This list was last updated on Sunday, 25-Apr-2004 16:12:25 MDT.

IMPORTANT NOTE - The Copyright Policy described below applies to books published in the United States ONLY! For information on copyright policies for books published in other countries, see Page 2.

Books We Own is grateful to USGenWeb for generously granting its permission to use the following information. The wording presented here has been edited slightly, and "Books We Own" or "BWO" has been substituted for "USGenWeb," where appropriate.

BWO's Official Copyright Policy -- The Official Policy on Copyrights.

BWO Lookup Permission Statement -- What is needed from the Copyright Holder.

Contributors -- Individuals who contributed to the copyright policy.

Four Golden Rules of Copyright -- Follow these rules and you're always Safe.

Copyright General Statement -- Introduction to copyrights

Copyright Law Overview -- What is protected by copyright.

What Are Copyright Infringements? -- When you can get into trouble.

Questions and Answers about Copyright Issues

What is Not Copyrightable -- Information that cannot be copyrighted.

Public Domain Materials -- Material where copyright protection has expired.

Reprints and Facsimile Copies -- Material reprinted after becoming Public Domain.

Copyright Information Internet Sites -- Were to find additional information on copyrights and Copyright Law.

BWO's Official Copyright Policy

Books We Own 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 should be minimal, for example:

Lookups can extend to searching the copyrighted material to determine if the material would be helpful to the requester in their research. Should the copyrighted material prove useful, the owner can provide the authors address and ordering information.

Books We Own will endeavor to get a WRITTEN statement from each copyright holder which stipulates which books may be used for lookups. See Lookup Permission Statement.

Contributors

Copyright General Statement

It is vital for genealogists/family historians to understand copyright laws, not only for the protection of others' rights, but to ensure that they retain the rights to their own work.

The only way to protect Books We Own as a whole and each of us individually as we volunteer our service on behalf of Books We Own is to remove all lookup offers for which you do not have written permissions or have not determined that the source is in public domain and therefore requires no permission.

Besides any legal ramifications, Books We Own does not want to offend those who have worked so tirelessly for little profit to publish these great reference sources. Books We Owndoes not want to offend those who do legitimate professional research. We want them as our partners, not as enemies. It is that recognition plus concern for Books We Own and all individuals involved which has led to the establishment of Books We Own's Official Copyright Policy.

The 4 Golden Rules of Copyright

Materials older than 1924 are absolutely safe.
Relaying FACTS is OK (This does not mean copying)
If the use of material created by someone else diminishes the market value of that person's work, then the copyright has been violated.
Getting written (not email) permission from the publisher is the surest way to ensure that you are not violating copyright law.

Copyright Law - An Overview

Here is a general overview of copyright law.

The Internet and Copyright
The internet is nothing more than another method of publication.
1. Orginal wording appearing on a web page cannot be reproduced without permission.
2. A web page cannot reproduce material subject to a valid copyright without permission.
What is covered by Copyright
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 the transcriber, to be compensated for their work.

An article, poem, etc. may be copyrighted individually, but it is also covered if the publication in which is appears is copyrighted.

Accumulated genealogical information: To the extent that it is an expression, it can be protected. But the facts in the information cannot be protected.
Copyright Law Before 1978 Under the pre-1978 copyright law, a published work was copyrighted for 28 years and could be renewed for another 28 years, for a total of 56 years. Renewal is filed within 2 years of the expiration.
When the new law went into effect in 1978, that copyright protection was extended to a total of 75 years for all works currently covered by copyright.
Prior to 1978, it was necessary both to give notice of the claim of copyright and to register the copyright for protection. If a work was distributed (published) without a copyright notice, then material was not copyrighted.
Under the pre-1978 copyright law, there was no protection of an author's right in a work until it was published. "Published" means distributed to the public, not that a publishing company printed and distributed the work.
The Current Copyright Law
Since Jan 1, 1978, everything an author, including you and I, writes is protected by copyright the minute it is written. Under the new law, no registration is necessary though notice is required. Registering a copyright costs $10.00 (1996)
Duration of a Copyright
1. Copyright protection under the 1978 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.
2. Material copyrighted after 1950 are protected until at least 2025 (1978-28 = 1950 + 75 years)
3. Material originally published between 1921 and 1949 which had the copyright renewed are protected for a total of 75 years from original copyright.
4. Material published before 31 December 1949 which did not have a renewed copyright are in Public Domain. (1949 + 28 years = 1977 covered by pre-1978 Law).
5. Material published earlier than 1 January, 1922, are in the public domain (1997 - 75 years).
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.
What is Fair Use on Copyrighted Material
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:
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.
Using Copyright Material
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.
The copyright law itself, under the fair use provision, protects the users' right to copy copyrighted material. The copying of copyrighted work for scholarship or research, among other purposes, is not an infringement of copyright protection. Furthermore, you are not restricted from publishing (or otherwise selling) your scholarship or research.

In general, if you republish something exactly the way it looked when first published, you have to worry about copyright laws unless the work is over 75 years old.

Regardless of whether copyright laws apply to your situation, Books We Own urges you to cite your sources in all genealogy work. It makes it easier for the next person to verify what you are doing, and recognizes good work.
Where to get Permission
The publisher is the best place to write for permission to quote from a book, poem, song or magazine aticle. 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.
Copyright Fees
There is usually no fee for permission to quote from copyrighted materials.

Copyright Infringement and Remedies
What Are Copyright Infringements 17 USC, Section 501
Copyright Infringements can occur from several different actions and/or methods. ALL of 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 copyrighted source.
3. 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.
4. The person or entity using the information from the copyrighted source -- because different rules apply to different entities.
  Are we equivalent to a public library? Are we educators? Is Books We Own a non-profit organization in the LEGAL sense? Books We Own 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.
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.
1. Actual damages include, lost sales, the profit the infringing party may have made from the infringement, and legal fees.
2. 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.

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 believed 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.]

What is Not Copyrightable

Tombstone information -- Wording found on a Tombstone itself can not be copyrighted.
Public Records
Public information is not copyrightable, however a compilation of that information can be copyrighted.
Dates of Birth, Marriage, and Death, along with the Names are ordinarily not copyrightable.
Census Data
It is a "legal fact" that "facts" are not copyrightable, although their arrangement in a manner other than alphabetical may be copyrightable. "Facts" are not copyrightable -- that is, they are unprotectable elements -- and the bulk of genealogical CD data is factual vital-statistics data that reside in the public domain from the beginning. They are not taken out of the public domain by being included in a copyrighted work.

Public Domain Materials

Public Domain material includes but is not limited to the following:

Material where the copyright has expired.
All public records
Materials published using public funds can not be copyrighted.
Works consisting entirely of information that is common property containing no original, and lists or tables taken from public documents or other common sources.

Reprints and Facsimile Copied

Once material enters Public Domain it may be republished or copied in part or in total by anyone.
A reprint of Public Domain material can be copyrighted. However, the copyright only applies to any new material (introduction, summary, tables, index, etc.) which was added to the original. The original material is still in Public Domain and can be used freely.
Contact the reprint publisher and or author if you have a question on what is original and what is new.

Using Reprinted Material

LDS filmed books: what counts here is whether the original work was copyrighted. I believe that LDS either gets permission to copy or copies works on which the copyright has expired.

Copyright Information Internet Sites

The following web sites provide reference on copyright law.

U. S. Copyright Office Home Page -- U.S. Copyright Office General Information

United States Code - Title 17 - Copyrights -- the law itself.

Copyright Fundamentals for Genealogists - Mike Goad's summary of copyright do's and don'ts for genealogists, with good examples.

When Works Pass into the Public Domain -- Table information on copyright protection.

The ILT Guide to Copyright -- This page provides information of interest to educators and others relating to copyright.

The Copyright Website! -- This site endeavors to provide real world, practical and relevant copyright information of interest to infonauts, netsurfers, webspinners, content providers, musicians, appropriationists, activists, infringers, outlaws, and law abiding citizens.

Oppedahl & Larson -- General information about copyrights

Final Statement

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.