I am a non-lawyer interested in copyright. After sitting mostly silent on this list for several months, I have come to the conclusion that next to Disney and Microsoft, genealogists (and genealogical publishers) seem to be the worst offenders in claiming a copyright where none exists. For example, in a recent post to this list, Glenn Randers-Pehrson wrote in response to a question about the copyright status of a resissued published work that had fallen out of copyright and then is republished as books or CDs: >If the publisher has made images of the pages of the old material, the images >are covered by a new copyright, so you can't reproduce the images (in >excess of fair use) without permission for the next 95 years but you can >freely transcribe the information from them. While many publishers will tell you differently, the only court case on this matter of which I am aware (Bridgeman v. Corel) would seem to imply that in most cases the act of copying a public domain two-dimensional work does not in itself have enough creativity to warrant copyright protection. It may require a lot of skill, and it may be hard work, but it is not creative - and creativity is required for copyright protection. This is why many publishers are now licensing access to materials rather than just selling it. Through a license a publisher _may_ be able to limit the uses made of the material they have scanned or republished, but which is not itself copyrighted. Similarly, a recent thoughtful and knowledgeable email from Richard Pence, forwarded to the list with permission by Alexandra Robbins, correctly noted that copyright protection can extend to compilations of facts. I wonder, though, about the conclusion that Pence drew from this: >So "facts" aren't quite so uncopyrightable as some believe. One is free >to >get his or her own bee stings while copying these same tombstones and >then >publish them. But he or she has no right to copy another's published >compilation, even if it consists entirely of "facts." The question here is not who got bee stings compiling the data (since copyright law does not recognize "sweat of the brow" - or bee stings - as a basis for copyright), but rather the creativity of the compilation. It is the nature of the selection, coordination, and arrangement of the facts in such a way that the resulting work as a whole constitutes an original work of authorship that determines whether the work is copyrighted. And the copyright would only extend to the selection and arrangement - and not to the underlying facts. If the book of cemetery inscriptions, therefore, is a comprehensive, alphabetical transcription of all the tombstones in the cemetery, I suspect the courts, following Feist, would conclude that the cemetery transcriptions lacked sufficient creativity in selection or arrangement. And even if the selection or arrangement was copyrightable, it is my understanding that there is nothing legally that would stop someone else from taking a portion (even a large portion) of the facts in the work and rearranging them in a different fashion (chronologically, say, rather than by alphabet). Pence recognized some might feel this way, and wrote: >It can be argued that this compilation of inscriptions or that may not >meet >the requirements of "original authorship," but in my opinion it is the >professional genealogist who should insist that such works be accorded >the >full protection of the copyright laws. You can put a copyright statement on anything, but insisting that something is copyrighted doesn't make it so. Pence goes on: >Aside from the obvious circumstance that some may be the >authors/compilers >of such works, an equally compelling reason is that without copyright >protection the supply of this kind of valuable material will dry up. No >rational person is going to go through the intense effort of copying a >cemetery's tombstone inscriptions, compiling this information in a useful >and usable fashion and then publishing it - not if a couple of weeks >later >some fellow decides it is quite all right to "copy and repost them with a >new presentation." If what Pence says is true, there are a lot of irrational people on the Internet. :-) One of the most remarkable things about genealogical work on the Net is how many people there are who are doing exactly what Pence says they won't do - transcribing cemetery inscriptions, indexing census records, scanning documents, etc. - and then putting them up on the web for free. Nevertheless, I would be willing to consider the possibility that our copyright laws as written favor too much the literary accomplishments of creative writers. The lack of protection for people who work with facts or in the public domain may serve as a disincentive for the development of products in those areas. Copyright is a bargain. The public gives to the creator of intellectual property a limited monopoly on the exploitation of that property as an incentive to create the intellectual property in the first place. It may be that society may want to give to genealogists a similar incentive to ensure that new compilations of facts are produced. I suspect, though, that current legislative efforts in this area (including H.R. 354, which may make it illegal to extract _any_ genealogical information from a published genealogy without permission unless one is a Mormon) go too far in the other direction. It is understandable that compilers may feel cheated if the product of their hard work is appropriated by another. They may wish to challenge this action on the basis of ethics or contract law (assuming that use of the material is licensed). But genealogists should recognize that copyright law may be of little use to them. If they realize this, genealogists may come to recognize that seeing broad distribution and approval of their work is reward enough. Peter Hirtle [email protected]