Legal Considerations and the National Digital Library Program: An Introduction

This "page" comprises the overhead slides used by Melissa Levine (the National Digital Library Program's intellectual property specialist) at an NDLP TechTalk on September 26, 1996. It serves primarily as a brief introduction to the range of issues that have surfaced as the National Digital Library Program has been selecting, digitizing and mounting Library of Congress collections for presentation on the Internet through American Memory. The issues are complex, and there is no simple recipe for identifying and resolving issues related to a particular collection. The answer to the question, "Is it OK to do this?" is often, "It depends."

Unexpectedly Hip!
Legal Considerations and the National Digital Library Project

Melissa Smith Levine

Copyright
In the U.S.A., governed by . . .

• U.S. Constitution, Article 1, Section 8..."to promote the progress of science and the useful arts by securing for limited times to authors...the exclusive rights to their respective writings and discoveries..."
• Copyright Acts of 1909 and 1976
• Case law
• International Agreements...Berne Convention

Copyright:
What is it?

• Exclusive right
• Original works
• Fixation
• Tangible medium of expression

• Reproduce, copy, perform, display...

• literary, musical, dramatic, pantomimes, choreography, motion pictures, sound recordings, architectural works...

Copyright
Remember . . .

• Expression, not ideas
• Notice, registration not required
• Absence of notice
• Possession or Ownership of physical item
• GATT...foreign materials

Copyright
Exceptions...Public Domain

• U.S. government employees

• Expiration of copyright
  • 1909 Act
  • 1976 Act

Copyright
Fair Use

• Exception to Exclusive rights
• Limited purpose uses
• Four-factor test
  • purpose, character
  • nature of work
  • amount used in relation to whole
  • effect on market

Right of Publicity

• public figures, celebrities
• commercial gain
• name, likeness, voice, persona...
• no "federal law"...varies by state
• may continue after death

Right of Privacy
The right to be let alone

• private citizens (usually)
• non-commercial right
• intrusion in to seclusion, private affairs
• public disclosure of private information
• false light
• embarrassing situations
• nudity
• ends at death

Defamation
Libel and Slander

• publication to third-party
• false written or spoken remarks
• living persons held up to hatred, contempt, or ridicule
• varies by state
• can't defame the dead

• Prodigy and Compuserve cases

Obscenity and Pornography
Will you really "know it when you see it"?

• nudity, especially children
• visual depiction of minor engaged in sexually explicit conduct...
• Electronic Communications Decency Act...dissemination not just solicitation
• legitimate academic purpose

Sensitivity to Content

• anthropological materials
• prisoners of war
• Native Americans and their sacred objects
  • religious meaning, purpose, identity
  • American Indian Religious Freedom Act of 1978

Freedom of Information Act

• public access to certain records
• organizational descriptions, procedures, policy...

• web sites as cost-effective access to commonly requested materials

Freedom of Information Act
Exempted materials

• unwarranted invasion of privacy (personnel, medical records)
• national defense and foreign policy
• trade secrets
• privileged or confidential commercial, financial information
• law enforcement records

Linking

• U.S. government sites
• private nonprofit and commercial sites
• permission
• response to inquiries
• trademark, implied endorsement, unfair competition

Where to start?
Educate yourself...get a sense of the issues

• Protocol
• Policy
• Description
• Who, what, where, when, how, why...?
• How did you get it...terms of transfer

Permissions

• Purpose
• budget time and resources
• fees
• permission letters and forms
• DOCUMENT efforts

Site Licensing

• Purpose
• limit scope of access
• security, technical controls
• limit copying
• respect copyrights

Rights Management

• New collections
• transfer, assignment, license...copyright, publicity...

• New commissioned material
• works for hire

Notice Statements

Notice Statements
http://lcweb2.loc.gov/ammem/copyrit2.html

Gottscho-Schliesner (commercial rights)

http://lcweb2.loc.gov/ammem/gschtml/gottres.html

Carl Van Vechten Collection (pub/priv & copyright notice)

http://lcweb2.loc.gov/ammem/vvres.html

Conservation Collection (mixed media collection)

http://lcweb2.loc.gov/ammem/amrvhtml/consres.html

Wrapping It Up

"Oh what a tangled world-wide-web we weave."

Intro -- Index -- Glossary -- Feedback

Legal Considerations and the NDLP: An Introduction

National Digital Library Program, Library of Congress (9/30/96)