Editors’ Note (SP): This article is divided into six parts. You may link directly to each one of these parts using the chart directly below. In addition, for your reference, the article’s complete Table of Contents appears in section one of the article.

Introduction and Overview / Expiration of Works into the Public Domain / Section 108 Library Exception
Fair Use and Salami / Permissions, Good Faith Efforts and Disclaimers / Pickle Jars and Other Restrictions

Table of Contents V. Permissions, Good Faith Efforts and Disclaimers A. Permissions B. Good Faith Efforts C. Disclaimers

V. Permissions, Good Faith Efforts and Disclaimers

Theoretically, this is the end of the line in a copyright analysis of your library digitization process. In practice, you may run screaming after extraordinary amounts of paper trails and exceptionally diligent efforts to locate the copyright holders through probate records, and then return to the FAIR USE and Salami section.

A. Permissions

• The Copyright Office’s Circular 22 can help you figure out the process involved in identifying the copyright owner, including recorded transfers of ownership.³⁶
• The Copyright Crash Course has a great section on permission, which discusses logistics, risks and benefits.³⁷
• Copylaw.com. The Law Offices of Lloyd J. Jassin. Locating Copyright Owners is very thorough, including sites like findagrave.com.³⁸
• Freelance complication. Make sure you get permission from the actual owner. Take special precautions when digitizing local newspapers, magazines or other collective works. Before the Tasini decision, many publishers assumed that they had the right to digitize freelancers’ works, since they had secured the rights for their paper copies. In a landmark decision, the Supreme Court ruled against the publishers, subsequently resulting in major gaps in online newspaper databases.³⁹ Absent an explicit agreement to the contrary the freelancers retain the digital rights.⁴⁰ Since the mid 1990s, newspapers and magazines commonly have obtained the digital rights from the freelancers by contract. For works published before that time, you should be aware that multiple copyright owners that could be involved. The Court later let stand a ruling by the 11th Circuit against the National Geographic Society. The 11th Circuit held that the National Geographic infringed on rights held by freelance photographer Jerry Greenberg, when it published its CD-ROM collection of the magazine 1888-1996.⁴¹

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B. Good Faith Efforts

In Canada, a user can document a good faith effort, submit the documentation to the Canadian Copyright Board, and get a license to use a work. Fees are placed into a trust account for five years, in case the missing copyright owner turns up.

The Canadian system has been criticized for a number of reasons. Yet I mention it by way of contrast, because the United States has no system for libraries or others to demonstrate good faith efforts.⁴²

The leading articles on good faith efforts in library digitization projects are:

• Samuel Demas and Jennie L. Brogdon, “Determining Copyright Status for Preservation and Access: Defining Reasonable Effort,” Library Resources and Technical Services 41:4 (October 1997): 323-334. (not on web)
• Peter Hirtle, “Unpublished Materials, New Technologies, and Copyright: Facilitating Scholarly Use, “Journal of the Copyright Society of the USA 49:1 (Fall 2001): 259-275. Draft copy on the web for participants of the Interdisciplinary Conference on the Impact of Technological Change on the Creation, Dissemination, and Protections of Intellectual Property,” The Ohio State University College of Law, Columbus, OH. March 8-10, 2001. http://cidc.library.cornell.edu/Pub_files/Hirtle_OSU_paper.pdf. Cited with permission by the author.

For a look at how some libraries have worked their way through the process, see:

• Carole A. George, Carnegie Mellon University Libraries. Exploring the Feasibility of Seeking Copyright Permissions 2002. Sobering report of a study that took a random sampling of items in library collection and followed requests for permission to digitize. Only about half of the requests resulted in a yes/no answer. Nearly one-third of holders who received a request letter did not respond at all, though over 60% received follow-up letters. Addresses were never found for about 11% of the holders; and approximately 3% of the records were too complicated to pursue (multiple rights owners). http://zeeb.library.cmu.edu/Libraries/FeasibilityStudyFinalReport.pdf (visited May 6, 2002). See also Carole A. George, “Exploring the Feasibility of Seeking Copyright Permissions,” talk presented at the American Library Association Conference, San Francisco, CA, June 2001. http://zeeb.library.cmu.edu/Libraries/FeasibilityStudy.ppt (visited May 6, 2002).
• Lynn Pritcher, Ad*Access: Seeking Copyright Permissions for a Digital Age D-Lib Magazine (February 2000) at http://www.dlib.org/dlib/february00/pritcher/02pritcher.html (visited May 26, 2002). Describes Duke University’s project to digitize over 7,000 advertisements printed primarily in U.S. newspapers and magazines between 1911 and 1955. The article discusses the difficulties in tracking disposition of copyright assets owned by companies that no longer exist. It also discusses the “Works Made for Hire” complication, in that some rights may still be retained by the original photographers etc.

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C. Disclaimers

The Library of Congress uses careful wording that is worth reading:

The National Digital Library Program and the Library of Congress respect copyright and other legal rights associated with materials under consideration for dissemination over the Internet. The program makes items from Library of Congress collections available online after a full risk assessment has determined the legal status of items and identified rights owners or other parties to the extent possible. Permission or authorization [as in “no objection”] is sought from known rights owners or other parties for rights such as copyright, publicity, and privacy.

Many collections at the Library raise no apparent rights concerns when considered for digitization. For example, copyright is not a concern in the case of works by employees of the federal government or for works for which available copyright protection has expired, although the content of such works may still raise publicity or privacy concerns. Items in other collections have unclear or indeterminate provenance, like similar materials in museum or archives everywhere. The Library’s legal assessment process relies heavily on the substantive knowledge of collections experts in special-collections divisions like Prints and Photographs and the American Folklife Center. Information provided by these experts augments available copyright or catalog records and acquisition documents that may note donor restrictions or other limits on access or use. The legal review depends upon variables such as the state of collections, the extent of available information, and the nature of the medium, e.g., dramatic works, sound recordings, or film. This approach to assessing rights inherent in collections selected for digitization by the Library has resulted from extensive discussion with the Library’s General Counsel and senior members of the U.S. Copyright Office’s staff. The Library has sought an approach to responsible use of its collections in a manner consistent with its duties and mission. This process is flexible, responding to the idiosyncratic nature of the collections and available information.

Materials currently available through American Memory range from items for which the Library is unaware of any copyright or other legal concerns to items where permission or authorization was sought from copyright or other rights holders before the materials were presented on the Library’s World Wide Web site. Prospective applicants for Phase II of the Digital Libraries Initiative who would like to make use of the digital collections made available by the Library are encouraged to read carefully the general statement on copyright and other rights provided on the American Memory home page and to consult the specific restriction statements provided for each collection. Although the Library will assist grant recipients in identifying owners and other parties, the Library cannot provide legal advice regarding the content.

Footnotes

³⁶United States. Copyright Office. Circular 22. How to Investigate the Copyright Status of a Work (June 1999) http://www.loc.gov/copyright/circs/circ22.html (visited May 2, 2002).

³⁷Georgia Harper, University of Texas at Austin. Copyright Crash Course Personable course on many aspects of copyright relevant to libraries. See especially the section on permission, which discusses logistics, risks and benefits. http://www.utsystem.edu/ogc/intellectualproperty/permission.htm (visited April 29, 2002).

³⁸Copylaw.com. The Law Offices of Lloyd J. Jassin. Locating Copyright Owners at http://www.copylaw.com/permission.html. (visited May 19, 2002).

³⁹Cary Kennedy, Newspaper Publishers in the Post-Tasini Era, Searcher (March 2002) 50.

⁴⁰New York Times v. Tasini, 533 U.S. 483 (2001).

⁴¹National Geographic Society v. Greenberg, 244 F.3d 1267 (11th Cir. 2001), cert. denied 122 S. Ct. 347 (2001). The court remanded the case to the district court to determine the remedy, and added, “[I]n assessing the appropriateness of any injunctive relief, we urge the court to consider alternatives, such as mandatory license fees, in lieu of foreclosing the public’s computer-aided access to this educational and entertaining work.”

⁴²According to Peter B. Hirtle, the Canadian system does not include unpublished works, few items have received a license, and “reasonable efforts” has been interpreted by the Canadian Copyright Board to mean “thorough search,” including investigating inheritance records. Peter B. Hirtle, Unpublished Materials, New Technologies, and Copyright: Facilitating Scholarly Use, 49 J. Copyright Society of the USA 259-275 (Fall 2001). Draft copy on the web for participants of the Interdisciplinary Conference on the Impact of Technological Change on the Creation, Dissemination, and Protections of Intellectual Property, The Ohio State University College of Law, Columbus, OH. March 8-10, 2001. http://cidc.library.cornell.edu/Pub_files/Hirtle_OSU_paper.pdf. Cited with permission by the author.

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Proceed to Part 6 of this article: Pickle Jars and Other Restrictions