Risk of adding 1940s letters to a digital collection
- May 2, 2008 @ 6:32amNAAL says:Thank you in advance for your suggestions and advice about my dilemma below:
A public library has been given letters written between the employees of a company and WW II soldiers. The company encouraged its employees to write soldiers from the area during the war. The library would like to digitize them and put them online – they think in highly unlikely that anyone would object to the content (it was all censored at the time - -so the letters are “how are you, I am fine” with very little personal or military information). Has anyone added materials like this to an online collection without specific permission from the author. The library doesn’t have the resource to trace all of these people or their heirs.
We know the materials are covered by copyright under the Copyright Law of 1976. I am unsure what risk will accrue to the library if they add them to the digital collection.
Public but Private: Copyright’s New Unpublished Public Domain by R. Anthony Reese
“The 1976 Act ended state copyright protection not only for works created after January 1, 1978, but also for works created before that date. Section 303 of the 1976 Act made express provision for any work that already existed on January 1, 1978, but had (1) never secured a federal copyright14 and (2) not entered the public domain, a category that principally included existing but unpublished works protected by state common law copyright.15 The Act removed those works from state protection and granted them federal copyright as of January 1, 1978.16 But how long a federal copyright term should these newly protected works receive? Congress gave them the same basic term as all post-1977 works, which was generally the life of the author plus 50 years. “
My Question: Are other digital projects posting materials covered by copyright and are subject to these damages (if the court finds the infringement was willful?) Are there any protections in other parts of the copyright law that limits damages if you post these with financial gain and agree to immediately remove the item from the digital collection if the copyright is challenged? (I know I have seen “disclaimers” that the library does not own the copyright to XYZ – and if you have information contact the library at…… Does that eliminate any of the risk to go ahead an add these letters to a digital collection?
(c) Statutory Damages. —
(1) Except as provided by clause (2) of this subsection, the copyright owner may elect, at any time before final judgment is rendered, to recover, instead of actual damages and profits, an award of statutory damages for all infringements involved in the action, with respect to any one work, for which any one infringer is liable individually, or for which any two or more infringers are liable jointly and severally, in a sum of not less than $750 or more than $30,000 as the court considers just. For the purposes of this subsection, all the parts of a compilation or derivative work constitute one work.
(2) In a case where the copyright owner sustains the burden of proving, and the court finds, that infringement was committed willfully, the court in its discretion may increase the award of statutory damages to a sum of not more than $150,000. In a case where the infringer sustains the burden of proving, and the court finds, that such infringer was not aware and had no reason to believe that his or her acts constituted an infringement of copyright, the court in its discretion may reduce the award of statutory damages to a sum of not less than $200. The court shall remit statutory damages in any case where an infringer believed and had reasonable grounds for believing that his or her use of the copyrighted work was a fair use under section 107, if the infringer was: (i) an employee or agent of a nonprofit educational institution, library, or archives acting within the scope of his or her employment who, or such institution, library, or archives itself, which infringed by reproducing the work in copies or phonorecords; or (ii) a public broadcasting entity which or a person who, as a regular part of the nonprofit activities of a public broadcasting entity (as defined in subsection (g) of section 118) infringed by performing a published nondramatic literary work or by reproducing a transmission program embodying a performance of such a work.
- May 6, 2008 @ 7:26pmAFry says:I was hoping that someone else would be the first to answer because I do not believe that my view represents the consensus. I feel safe in many situations that most people consider unsafe. Most people would say that I am more tolerant of risk, but I would say that I have a better understanding of the risk involved. Here's what I mean: Two people go to work. One carries an umbrella; one doesn't. One explanation is that the person who carries the umbrella is less tolerant of risk, but another explanation is that the person who carries the umbrella is more tolerant but didn't see the forecast.
I am unsure what risk will accrue to the library if they add them to the digital collection.I think the odds of a lawsuit are slim. It seems to me that the copyright holders would be at least 70 years old. What are the odds of a copyright holder finding out about your collection? Assuming that you are found out, what are the odds of a copyright holder suing?
My Question: Are other digital projects posting materials covered by copyright and are subject to these damages (if the court finds the infringement was willful?)Not me, but I suspect that someone must have.
Are there any protections in other parts of the copyright law that limits damages if you post these with financial gain and agree to immediately remove the item from the digital collection if the copyright is challenged?I have forgotten the section and don't have time to search for it now, but there is a section that protects individual librarians and teachers acting in their professional capacity from liability if they honestly believe that the use is a fair use. Is this a fair use? You can search this forum for more detailed explanations of fair use. Briefly, here is my four-factor determination 1. Educational, non-commercial. Favors fair use. 2. Low creativity (unlike novels and movies), possibly factual. Favors fair use. 3. 100% used. Against fair use. 4. Market value. In my opinion, unless the letter is written by or to a famous person, there is no market value for the copyrighted content. If there is a market for these letters, it is because of their historic, not literary, value. So, I see this as a fair use. (I know I have seen “disclaimers” that the library does not own the copyright to XYZ – and if you have information contact the library at…… Does that eliminate any of the risk to go ahead and add these letters to a digital collection? The only way to eliminate risk is to choose not to digitize the letters. I think you can minimize risk with a disclaimer. I'd say something about respecting the rights of copyright holders and offering to remove any letters at the request of the copyright holders. You should also consider what you will do if a copyright holder asks you to return the original letter. In my opinion, these disclaimers minimize the risk of being sued but have no effect on the risk of losing a lawsuit. Bottom line: I consider the risk acceptable, but this is a decision that only your library can make.
- May 9, 2008 @ 6:42amRuthDukelow says:In my opinion, the letters are protected by copyright, and if the author (or author's heir) of one of the letters asks you to remove that letter from the web site, you would be obligated to do so or risk an infringement lawsuit. In this instance, however, it seems that you would be more likely to receive a "cease and desist" request than an immediate lawsuit for infringement. If you are willing to take down all images on demand, your risk could be minimal. Even if the author files a lawsuit instead of allowing the library to remove the letters without penalty, damages could be low per section 504(c)(2) of the U.S. copyright law which provides "The court shall remit statutory damages in any case where an infringer believed and had reasonable grounds for believing that his or her use of the copyrighted work was a fair use under section 107, if the infringer was: (i) an employee or agent of a nonprofit educational institution, library, or archives acting within the scope of his or her employment who, or such institution, library, or archives itself, which infringed by reproducing the work in copies or phonorecords."
A few other considerations in risk assessment:
1. Is the company still in business and did the employees write their letters as part of their work for the company? If so, the employees' letters may be the equivalent of "work for hire" with the copyright owned by the company and not the individuals. If that is the case, the library could gain some protection by obtaining permission from the company to digitize and mount the images on your web site.
2. Are you doing this project with grant funding? If so, is there any additional risk to the library of having to repay the grant funds if images have to be removed from the web site?
3. See also these risk suggestions from the "Making of Modern Michigan" digitization project: http://mmm.lib.msu.edu/html/copyright_faq.html#2
4. Perhaps someone else on the CAN Team can address the advisability of posting a statement on your digitized collection asking authors of the letters to contact the library?
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