Copyright Principles in Action

XIV. Selected Special Problems

A. Out-of-Print Publications

There is a tendency to believe that copying or publicly performing a work which is no longer available will not be infringing. Given the lengthy duration of copyright (see Part III. C) ,this will often not be the case. Assuming the copyright is still in force, the fair use analysis (or seeking permission) is the way to proceed. While a decent argument can sometimes be made that if the book is out of print, there can be no "market impact" (thus turning that troublesome factor positive for the instructor) even this is not a certainty. For example, chapters from an out-of-print book may still be included in anthologies or "best of…" collections, and plays and musical compositions may still be earning performance royalties. And, given the Michigan Document Service opinion discussed in Part IV it now appears that there is a market (in granting the permissions themselves) which still may be hurt by unauthorized copying.

A related problem is that locating the publisher/copyright holder may prove to be quite difficult in the case of older works. The original publisher may have been acquired by a successor corporation with a different name or a family owned business may have been wound up upon the death of the owner with the intellectual property rights distributed to the heirs or the original publisher may have gone bankrupt. Similarly difficulties may arise if the copyright is held by a foreign publisher which does not do business in the United States. The UO Copyright Clearance Center has experience dealing with such hard-to-find rights holders and has had some success in tracking them down. If the holder of the copyright cannot be located after a good-faith and reasonably diligent effort, it is likely no one would claim infringement and/or that the copying would harm no presently viable market.

B. Original Work in Public Domain but found in Currently Copyrighted Anthology or Derivative Work

It can happen that the original work is demonstrably out of copyright due to the passage of time (or deliberate abandonment by the author) but that the actual source from which it is desired to make a copy is a collective or derivative work to which some publisher still holds a valid copyright. This could be because of translation to English, annotations/interpretive text, prologues, modern language adaptations, or anthologization. If the instructor has possession of the originally published version, she can copy that without any liability. But, if – as is more often the case – she has only the modern (copyrighted) version, she may have to proceed more carefully. If she only wants her students to have the original text, she should be able to copy that (being careful to excise all material added by the present copyright holder). Absent illustrations or fancy "illumination", there is no copyright (for the current publisher) in the type font. And, of course, if the work is part of an anthology or collection, she cannot copy the other parts. If she wants the text in its present form (however added to or embellished or translated) she must either do a fair use analysis or obtain permission.

C. Unpublished Works

These problems usually arise when scholars (or sometimes playwrites or music publishers) gain access to unpublished material. The author (or composer) will have a copyright (though she may or may not have registered) as soon as the expression is "fixed" which would even include a pen-and-ink manuscript. The duration of copyright in published works created before January 1, 1978 (the effective date of the Copyright Act of 1976) and not by then already in the public domain (i.e. a work which had subsisting copyright on January 1, 1978) is ninety-five years from the date the original copyright was secured (in those days by notice and registration) rounded to the final-year end. The copyright duration for unpublished works created before January 1, 1978 is for the life of the author (or longest-surviving joint author) plus seventy years. If the author had died more than fifty years before January 1, 1978, the copyright in an unpublished work will endure until December 31, 2002, but, if the work was published on or before that date, the copyright runs for an additional forty-five years (i.e. through 2047). "Publication" is defined in the Act as the "distribution of copies… to the public by sale or other transfer of ownership, or by rental, lease, or lending." However public performance or display of the work does not, itself, constitute "publication".

Thus, apart from fair use, scholars and publishers will still have to negotiate for permission from the author or his/her heirs until the copyright to the unpublished work expires.

D. Visual Artists’ Rights Act

In 1990 Congress passed the Visual Artists’ Rights Act (VARA) which incorporated some civil law (European law) "moral rights" concepts into the intellectual property law of the United States. As the popular name implies, this legislation which amends the Copyright Act by adding Section 106A covers works of visual art such as paintings, drawings, prints, sculpture, and photographs which exist in single copy or in limited editions of no more than 200 signed and numbered by the artist. Not included are works made for hire, posters, promotional or merchandising or packaging images, audio-visual works, motion-pictures, maps, diagrams, and technical drawings.

The VARA gives the artist the right to prevent any "intentional distortion, mutilation, or other modification of that work which would be prejudicial to his or her honor or reputation… and to prevent … any intentional or grossly negligent destruction" of the work. The artist can also prevent the use of his or her name as author of a work which has already been so altered. Conversely, he or she can insist on having his or her name (as the artist) identified with the work. These rights apply even if the artist has assigned the copyright to someone else. These rights last for the lifetime of the artist and apply to all works of visual art created on or after June 1, 1991 and to works created before then if the artist has not transferred title before that date (though the "distorting", "destructive", etc. acts refer to actions taken after that date). Thus, in this day of digitization and computer manipulation of images, one must be careful not to violate any of these artists’ rights.

In situations where the work has been incorporated into a building and its removal therefrom may cause its "destruction, distortion, mutilation" or other prejudicial modification, the removal may proceed only if the artist has acknowledged in writing signed by the building owner and the artist that removal could have that effect. The "distortion" issue can be very subtle when the art can be characterized as "public art" because the artist may claim that the very siting or context of the work (e.g. in a building’s plaza and having certain deliberate relationships to other structures, or to afternoon sunlight, or to traffic patterns) will be prejudicially altered if it is relocated even though the work itself is unchanged and unharmed. While such re-siting subtleties seen very unlikely to prejudicially effect the artist’s "honor or reputation", the UO Office of General Counsel should be consulted whenever issues arise under the VARA.

E. Architectural Works

Except where they are works for hire or where the architect(s) have assigned the copyright to the entity with whom they were contracting, the copyright in architectural drawings resides with the architect (or her firm). However the architect cannot prevent (or claim to be infringing) the making of pictures or taking of photographs of the completed structure if the building is in (or ordinarily visible from) a public place. Similarly, she cannot interfere with the reproduction, distribution, or display of such images. Of course, the usual copyrights adhere in the drawings or renderings or models made by the architect subject only to the statutory limitations (including fair use).

F. Databases

The conventional wisdom on data bases (as opposed to data-base searching/manipulating software) is that they may not be copyrightable since they typically contain only factual material. Obviously, an exceptional case would arise where the data-base owner had licenses from authors/publishers allowing it to archive and distribute creative works. However, the creator of even a totally factual data base has made a substantial capital investment to add much value to disorganized and otherwise separately located data. The time saved in searching out such data from multitudinous sources, the inter-relatability of the assembled data, the quick search-and-retrieve capabilities for the newly collected data, and the potential for selective extraction of the data are the most obvious ways in which value has been added by the data base’s creator-proprietor.

To protect against "free-riding" by rival data-service entities and to make the operation more lucrative by extending control over the data even after a user has downloaded it, data-base interests have been lobbying vigorously for legislation to provide copyright coverage or to confer other, more powerful, rights known as "extraction" and "utilization" rights. These protections would apply to any "substantial" withdrawal of data including the accumulation of small portions at any given time. Such rights of the creator-proprietor are designed to exist for twenty-five years from creation with a roll-forward feature every time new data is added (thus potentially giving de facto perpetual protection). While claims of injury from "free riding" are debatable in this context, the World Intellectual Property Organization (WIPO), a multilateral, quasi-governmental body, has pushed for domestic legislation to extend control over data base material even after the customer has extracted it.

The data base might constitute a "compilation" as to which the compiler would be entitled to copyright under the present law provided the data are "selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original work of authorship". But remember that facts alone can not be copyrighted (there is no creative component). A Court of Appeals rejected an infringement claim based on copying financial data in Financial Information v. Moody’s Investor Service, 808 F.2d 204, 207 (2d Cir. 1986) raising its concern that to do otherwise "would risk putting large areas of factual research material off limits and threaten the public’s unrestrained access to information."

There is also the possibility that the contract between the customer and the data-base proprietor could adequately limit the further use of the extracted data (or place a surcharge (beyond the standard access fee) on certain further uses). Such further uses likely to be restricted would be commercial redistribution, use in a commercial manufacturing or service-providing operation, and incorporation (directly or by web linkage) into a different data base. Scholarly researchers fear that restrictions/surcharges will go further than that to inhibit their use of data in experiments and in journal articles reporting on their work.

G. Copyright Management Information

The Digital Millennium Copyright Act includes sections combating attempts to circumvent copyright by technical means or by physical alternation/removal of a copyright notice and associated material. "Technological measures" include hardware or software which may be embedded in the work or may be on a server, website, or even on the user's computer and are used to control who can use the work and when and how it can be used. They serve as authorization gates. The Act prohibits "avoid[ing], bypass[ing], remov[ing], deactivat[ing], or otherwise impair[ing]" such measures, although users have two years from the Act's effective date to ensure their equipment does not have this effect.

Additionally the act prohibit anyone from trafficking, selling, or providing equipment, devices or services "primarily designed or produced" to circumvent technological measures. Finally, and very importantly, the Act prohibits the removal or alteration of information connected with the work which indicates the title, author(s), copyright owner(s), performer(s), the terms and conditions of allowed use, or which constitutes identifying numbers, links, or codes to determine usage or originality. Collectively such details are defined as "copyright management information" (CMI). Thus, to be safe, even when a usage of copyrighted material is "fair" (i.e. not infringing), the CMI should not be omitted from any copies made, displayed or distributed, and should be included (e.g. in programs) of any work performed.