Copyright Advice for Unpublished Materials

Mary mentioned a little while ago a new article by Scott Burnham entitled "Copyright in Library-Held Materials: A Decision Tree for Librarians." I finally got around to reading it, and I am greatly impressed.

There is much more here than the title would suggest. First, even though it uses "librarians" in the title, the article is based on a presentation to the Northwest Archivists conference in 1999, and most of the examples concern unpublished materials. Second, while it suggests that the approach is that of a decision tree, it instead is a wide-ranging discussion of a slew of issues surrounding unpublished works. There is, for example, the start of a discussion about what constitutes "publication." There is as well one of the only discussions I have seen about what constitutes an "archives" for the purposes of Section 108 of the Copyright Law.

No argument is ever perfect, however, and I do have some quibbles with his piece, including these:

1. Burnham's notes don't reflect much of the recent literature on the copyright status of unpublished materials. In particular, he fails to cite Kenny Crews's work, especially his 1990 RBML piece on "Unpublished Manuscripts and the Right of Fair Use: Copyright Law and the Strategic Management of Information Resourcesand" (still the single best short piece on copyright of unpublished works) and his masterful 1999 study in the Arizona State Law Journal on ""Fair Use of Unpublished Works: Burdens of Proof and the Integrity of Copyright." A lot has happened since Salinger.

2. He suggests that in some states, unpublished material could have entered the public domain. While technically true, I know of no state that actually allowed unpublished material protected by common-law copyright to enter the public domain prior to the passage of the 1976 Copyright Act.

3. He suggests in footnote 23 that Pushman might apply to archives. It is a nice idea, but my guess is the tradition of giving the copyright owner the right of first publication would trump the Pushman doctrine.

4. He includes checking out-of-print sources in a 108(h) investigation. Mary has argued that the criteria he should be the same as for 108(e), namely the publisher, copyright owner, or authorized reproduction services (but not the out-of-print market).

5. I think Burnham may be too cautious when talking about course reserves (a non-archival issue), but there are few more-contentious issues in the field right now.

In spite of my reservations, I still find it to be one of the most accessible introductions to copyright for archivists. Highly recommended, and kudos to AALL for making it freely available on its web site.

Comments

[Peter]

Elizabeth

I don't see any distinction in Section 104 of the Copyright Act about whether a work is published or unpublished. That means that the copyright term in the US of unpublished foreign works is treated as if the work had been published in the US.

In the case of Vera Brittain's writings, since both the UK and the US have a life + 70 term, the difference between the two countries is moot. If, however, you had written on Lucy Maud Montgomery (Canadian author of Anne of Green Gables), you would have found that her diaries, while in the public domain in Canada (which has a life + 50 term), are still protected by copyright in the US.

The key issue then is jurisdiction. The Montgomery estate could sue you in US courts for copyright infringement, even though the material is in the public domain in Canada. John Ockerbloom has a page at his "Online Books" site devoted to published foreign works that are in the public domain in their home country yet which are still protected in the US, and warns that they should not be downloaded in this country. See http://onlinebooks.library.upenn.edu/nonus.html.

[Elizabeth Townsend]

Thanks for including my comments...

Peter - I have a question... do you know what laws govern unpublished works? Is it where the works are created? Deposited? I think I asked you this before... Burnham 's article doesn't seem to deal w/this aspect except to say that letters written in Mass might have Mass common law c protect before 1978.

What about messier cases -- like brit papers in Canada - and the fact that they didn't extend the c protection of unpub works? My work uses the papers of British writer Vera Brittain (1893-1970). What law governs? This seems an important aspect.

Lastly, a general comment - I thiink the hypothetical at the end is really terrific.

This is Mary - I copied and pasted in below Elizabeth Townsend's post from her blog http://academiccopyright.typepad.com/academiccopyright/2004/08/materials_for_u_1.html

"Materials for unpublished works
Mary Minow and Peter Hirtle have been posting about an new article by Scott Burnham entitled "Copyright in Library-Held Materials: A Decision Tree for Librarians, LibraryLaw Blog

This is a really really terrific piece, and potentially very useful to scholars, particularly those who want to understand the laws in a more legal and complex but still accessible way. This should be on everyone's must read list that use unpublished works.

Peter's remarks about the piece are really interesting. I would like to add a few of my own.

1. the piece mentions that if the library published the unpublished piece before the Dec 2002 deadline, rather than the copyright owner publishing the piece, then the materials are still in the public domain. Very interesting. Of course, if the copyright owner gave the library permission, then the materials are under copyright until 2047. Who gives permission on neglected, abandoned materials? Does Emily Dickenson have active heirs protecting her unpublished works?

2. The story about the Clark papers is in the same genre in many ways as Byatt's novel Possession. Archival papers can have great mystery and intrigue!

3. Once again the issue of gov't documents versus private documents is raised (see Lessig's piece "Copyrighting the President" and Becky's article on gov't docs at the state and local level in previous blog entries)

[I will try to get back to this for more comments]"