Digital projects inevitably involve issues of intellectual property, and the body of law most relevant to creating, preserving, publishing such content is copyright.
Copyright law governs the reproduction, adaptation, distribution, performance, and display of original works of authorship. A valid copyright gives its holder the exclusive right—for a defined period of time, and subject to certain exceptions—to "copy" his or her work through the means listed above. Such copying frequently is a consequence of digitization. Moreover the materials you wish to deposit may include pictures, graphs, art or other items that have been published elsewhere. These activities could infringe on an author’s right to control and limit his or her work's use.
Clarity on the copyright considerations raised by your project is essential for its planning. This information is necessary for completing the Digital Asset Agreement Inventory, which specifies the assets to be submitted, and for forming a Digital Asset Agreement, which outlines the authorized use of your materials.
As a depositor, you warrant having full rights to deposit the digital assets listed in the inventory and having made a good faith effort to ensure provided copyright information is complete, correct, and up-to-date. To this end, DLS is happy to assist you with establishing copyright status, determining rights, seeking permissions, and understanding authorized use.
When considering copyright in relation to your digital project, it is helpful to keep the following points in mind:
- Copyright covers creative expression, but does not apply to ideas, facts, or generic information. The key factors to a work's "copyrightability" are originality, independent creation, and fixation in a tangible medium.
- Copyright law covers work regardless of whether it was formally published, or even made public. Though compliance with certain formalities and registration may be required, occurrence of notice on the work (e.g. "© Year XYZ") is not controlling.
- Works clearly in the public domain may be used by anyone for any purpose. Though determining a work's copyright status is not always straightforward, this chart provides a useful sketch of the applicable term based on date, type, and conditions of publication, and this tool can be used to help clarify whether a work is still protected.
- You may be able to make use of copyrighted materials by obtaining a license from the copyright holder, who may require a fee or possibly grant for free. In either event, such permission should be in writing and as specific as possible.
- The intended use of your materials may be "fair use" and so not infringe on a particular work's copyright holder's rights. Qualification turns on four factors, enumerated by statute and applied case-by-case. Full treatment of fair use is beyond the scope of this page. Copious commentary exists on the subject, and the following resources help give the doctrine some coherence: Fair Use Evaluator, Fair Use | Center for Social Media, Thinking Through Fair Use, Fair Use of Copyrighted Materials. For more detailed treatment, this article provides an excellent summary of recent empirical studies on fair use case law and traces the rise to prominence of the transformative use paradigm.
You are welcome to contact DLS for further information on how copyright issues may affect your project. Though we are happy to help sort through the relevant considerations, please keep in mind that the information provided here is general, and is no substitute for obtaining legal advice from a licensed attorney.