Digitization and Copyright Laws: What To Keep in Mind

Researchers make heavy use of digitized information. Physical documents are fragile, and their holders may limit their availability. Working with a digitized copy allows close examination and computer enhancement. At the same time, it's necessary to remain aware of copyright issues. Scanning materials freely can lead to legal trouble. Here are some helpful things to keep in mind.

Digitization and fair use

If a work is in copyright, permission is required to make a copy, with certain exceptions. The laws apply even if the copy is only for personal use. The "fair use" exception is the best known, but its boundaries are vague. Digitizing a small part of a work stands a better chance of counting as fair use than scanning an entire book or collection of prints. How much is a small part? The Supreme Court has said only that it depends on the "purpose and character" of the use.

Digitizing for preservation or academic work has the best chance of falling under the exemption. Research with the aim of making a profit will face tougher scrutiny if the matter goes to court.

Public domain

Many works are in the public domain, making them free to copy. Anything published before 1923 is in the public domain in the U.S. In 2019, the "safe year" will advance to 1924, and it will continue to advance by one year on each new year. This isn't as solid a boundary as many think, though. Works published after 1923 may be out of copyright if the holder failed to renew. A significantly enhanced version of a public domain work, such as a re-mastered recording, may qualify as a new copyrighted work.

Some works are in the public domain from the moment of their creation. Publications by the federal government fall into this category. Creators of works can voluntarily place them in the public domain if they own the full rights. Lists of public information, such as phone books, can't be copyrighted.

Libraries and archives

Organizations engaged in archival work have extra leeway under U.S. copyright law. However, they have to satisfy a complicated set of legal requirements. A qualifying organization has to be open to the public or at least to outside researchers. It has to own a copy of any copyrighted work that it digitizes. Access to digitized materials has to be limited to the institution's premises.

This provides some value to researchers, but they may have to use the archive's computers. If it allows viewing them at the library with personal machines, it probably will deliver the material with software that doesn't permit downloading.

The need for caution

One person running off a few copies isn't going to get into trouble, whether they're technically legal or not. Activities on a larger scale, though, can attract the attention of copyright lawyers. An institution which is persistently lax about digitization can run into an expensive lawsuit.

HathiTrust, which conducts a massive digitization program, was the target of a lawsuit from the Authors Guild in 2011. The suit claimed that the program violated copyright by digitizing works without getting permission. It reached a settlement in HathiTrust's favor in January 2015. The district and appeals court agreed with the defense's claim of fair use. If HathiTrust had been less careful about its use of the digitized materials, the outcome might have been different.

With careful practices, researchers can digitize materials legally. It may take a court ruling to determine if the copying really is legal. The bigger the project, the more important it is to obtain qualified legal advice.

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