The following questions, aside from a few added for completeness' sake, have been gathered from the public postings of several e-mail lists, chiefly HUMANIST, ARCHIVES, and CNI-COPYRIGHT. The answers are a mixed bag: some represent my formulation of standard answers based on clear statutory declaration; some represent my opinions, whether tentative or assured, correct or otherwise; many represent a digest of answers posted to the same lists. None purports to be legal advice, or anything but opinion; all would be well served by corrections and challenges by the better informed. At present, the questions and answers both assume that U.S. law applies. This reflects more my ignorance of non-U.S. law than the real character of textual scholarship, which is typically international.
Are unpublished manuscripts protected by copyright?
Yes, aside from works that could never be copyrighted (Federal documents, purely conventional factual lists, etc.), or those placed expressly in the public domain, all original unpublished works in manuscript now enjoy Federal statutory copyright protection from the instant of their fixation in tangible form. Common-law State copyright has been wholly preempted by the 1976 Copyright Act.
May the owner of a manuscript prevent me from publishing its contents in toto?
The owner may of course restrict or license access in such a way as to prevent publication. But the owner may not use copyright to prevent publication (or published translation) unless the owner is also the copyright-owner.
How old does a manuscript have to be before it enters the public domain?
Under the present U.S. law, the age of a manuscript is irrelevant: no matter how old, all unpublished copyrightable works are protected by copyright until fifty years after their author's death (with some allowance made for joint works, anonymous works, etc.) or until the year 2003, whichever represents the longer term.N1
Yes, even ancient and medieval manuscripts are technically protected, though foreign origin for such manuscripts may complicate matters,N2 as may the possibility that they were in the public domain when written.N3
Practically speaking, a lack of visible heirs has the effect of placing a work in the public domain. The question of whether a manuscript is "protected" depends a great deal on the existence of someone (an heir, not a manuscript owner) able to claim ownership and sue for infringement. Even for a MS of 1850, there may be some doubt as to who has inherited the rights; but what about a Shakespeare MS from 1600? Or an anonymous MS from 1350? There is unfortunately no "bright line": no point in time at which we can draw the line and say: "this is an ancient work effectively in the public domain" but "that is an unpublished work protected through 2002." It only takes one heir to sue.
For some old works, perhaps all medieval works, it is possible that transcription by manuscript may be a method of publication. Medieval manuscripts often represent published copies in the technology of the day. But works have been circulated in manuscript in later periods as well.
Whose permission do I have to obtain to publish a previously unpublished manuscript?
The copyright owner, if he or she can be found. Even a single heir will do. Repositories also will usually insist on granting permission, as a condition of making or allowing copies.
Whose permission do I have to obtain to publish a new edition of a text from the original manuscript(s)?
The same.
If an unpublished document was written in Prussia by a Welshmen but is preserved in a U.S. archive, whose law applies? (Fill in the non-U.S. nationalities of your choice.)
U.S. law applies. 17 USC 104(a) reads:
The works specified by sections 102 and 103, while unpublished, are subject to protection under this title without regard to the nationality or domicile of the author.
Are rare early printed books (incunables, say) protected by copyright?
No. Such works qualify as published and as having exceeded their term of copyright. They are in the public domain.
May the owner of a copy, or of the only copy, prevent me from publishing its contents in toto?
Not by means of copyright.
May I use and cite unpublished manuscripts in a biography or history without permission?
This remains slightly murky. In general, paraphrase and summary based on unpublished material is not regarded as an infringement of copyright. However, the infamous Salinger v. Random House, Inc. case found against a biographer partly on the grounds that much of the biography was based on paraphrase (not quotation) of unpublished letters.N4
May I quote excerpts from unpublished manuscripts in a biography or history?
Yes, but very cautiously. One of the most radical changes introduced by the federalization of common-law copyright by the 1976 Act was to introduce the potential for heavy damages in cases of infringement of unpublished material, damages heavy enough to justify Salinger's lawsuit (among others) and very forcefully to inhibit biographers and historians. As recently as 1991, Peggy Fox of New Directions Press can assert, "It is never
acceptable to quote, however briefly, from previously unpublished material without permission from the copyright owner."N5 Public Law 102-492, approved on October 24, 1992, admittedly added language to 17 USC 107 that
allows for fair use of unpublished material. The result is that "unfortunately for scholars, they remain trapped between the case law established by the Salinger and Hubbard cases and the new law...which remains unchallenged and barren of commentary from the bench."N6 Most publishers appear to have insisted that their authors maintain a very conservative (even timid) stance toward the new fair-use right in unpublished manuscripts.
May I add an introduction and notes to a reprint of a nineteenth-century book and claim copyright on the whole work?N7
No. Only your additions can be copyrighted by you.
To what extent are modern editions of ancient texts protected by copyright?
This is a serious question, with no certain answer. It may or may not depend on the amount of creative textual criticism employed by the editor, the degree to which the edition differs from a transcription, or similar factors.N8 The Feist decision seems to be playing a vital role in casting doubt on the copyrightability of critical editions, because of the Feist denial of "sweat of the brow" as a criterion for copyrightability. One recent questioner asks:
As a non-American, I am not familiar with the "Feist" decision concerning ancient/medieval texts published in print. I have now run up against a firm planning to use excerpts from our books. Can someone supply me with a date/reference for this decision, and any short analysis of its meaning and any limitations. This is also of interest to our European partners/distributors who may run up against similar problems over the texts they publish.N9It is clear that manuscript transcriptions, perhaps including the single-text editions printed in the PIMS "Medieval Latin Texts" series, might fall into the category of minimal creativity, especially if any editorial interventions, such as emendations or glosses, were excised. Even critical editions of ancient or medieval (i.e., public domain) works might be regarded as not protectable by copyright if all that were used by a competitor was the representation of the manuscript readings, not the presumably creative critical text itself.N10
It is asked:
What sorts of rights of reproduction can be held over the illustrations in a medieval manuscript owned by an institution? .... I understand that it is customary to contact the institution which owns the original mss. to ask permission to reproduce for a publication, but is this a courtesy or is it a legal requirement?N11
Manuscript illustration does not differ from manuscript text in this regard: the institution rarely (in the case of medieval manuscripts it may be safe to say "never") holds the copyright on its materials, and may exercise only the rights of a chattel owner. That is, the institution my physically limit access, forbid copying as a condition of access, or attach any copying or photographing by license or contract.
The harder question is whether photographic reproductions of uncopyrightable works may themselves qualify as copyrightable "pictorial works," aside from any license which governs their distribution. If so, then the copyright belongs to the photographer, (more commonly) the institution that hired the photographer, or whomever the copyright was assigned to by contract.
Returning to the hypothetical Beowulf edition, while I cannot be prevented on copyright grounds from reproducing the text, I can be prevented from reproducing an image of the text (eg. a photograph of a page of the manuscript) if that image is itself covered by copyright. In such circumstances I would have to negotiate a licensing fee with the holder of the copyright. Since the owners of the manuscript control access to and photographing of it, it is reasonable to assume that any image is copyrighted by them, and it is in this that they have a legal right to demand money.N12Some say, however, that such photographic reproductions are products of routine technical skill only and do not display the necessary minimal originality to qualify as works of "authorship" under the copyright law. If so, then the photographs are also in the public domain. All (I think) would place xerographic copies in this category; most would include microfilms: these are both more commonly regarded as reproductions than as pictorial works. I would be interested to hear of any case law (or other pertinent info!) on this question.
Most such photographic reproductions are, of course, sold or otherwise issued by the holding institution only on condition that they not be reproduced. This is a matter of contract law, not copyright law (and often international contract law at that), but contracts can only bind those who are parties to the contract. Should published illustrations prove uncopyrightable, then they should be able to be copied and reproduced; likewise, if one's library possesses microfilm copies of early manuscripts, there does not appear to be any impediment to free copying and distribution of copies, assuming that the library itself does not impose any conditions on access or copying. A further complication arises when the published photographs themselves are old enough to have entered the public domain.
The same questioner continues:
...If an illustration is reproduced in a modern book, say on medieval art, does the institution [that] owns the original manuscript hold legal rights over reproduction of that image from the newly published book?
As the employer of a photographer-for-hire, probably the institution does hold legal copyright (though the same doubts attach to the copyrightability of routine photographic reproductions).
...How do the rules apply to something which is rare but not unique, such as woodblock illustrations?
The uniqueness of the manuscript or illustrations is irrelevant to the copyright status of the photographs that reproduce it--though the existence of multiple copies would certainly make it harder to prove infringement, especially if the photograph were retouched. It is rumored to be common practice to publish such unattributable photographs of photographs when permissions are not easily to be had. Attribution is a means of establishing authenticity, and for that reason alone is worth providing.
Is it an infringement of copyright to remove the coding from the electronic text of a work that is otherwise in the public domain and publicly distribute the stripped copy, or some re-coded adaptation of it?N13
This is a question that arises with increasing frequency in the era of electronic texts. As electronic versions of public-domain editions continue to multiply, whether as part of on-line text bases, as part of CD-ROM collections of "great literature," or by some other means, scholars will frequently find it convenient to use these texts as ready distribution copies or as the basis for their own revising and editing. So long as every creative intrusion not in the public domain is removed from the work, it should be as safely usable as any other PD work.
The question remains, is the tagging (and any other textual alterations that accompanied the tagging) sufficiently creative to qualify the version to which it contributes as a work of authorship in its own right? This will of course depend on the text and tagging in question. It is likely that alterations made merely so as to make a text machine-readable will provide only a very "thin" layer of copyright protection at most, similar to that enjoyed by U.S. legal publishers (West, etc.) in the court reporters and similar compilations of public domain material--protection easily removed by any enterprising user.
Does asking for permission to use a text or other material create a prejudice against a fair-use defense of that use if permission is denied? I.e., is it sometimes safer not to ask at all? Possibly. Peter Junger has remarked, in answer to a similar question:
I believe that Sperberg-McQueen is wise in suggesting that if one asks
for permission to do something that one is already privileged to do, one may
discover, when the permission is denied, that one has lost one's former
privilege.N15
Most lawyers, however, seem to reject this argument, and to regard a request for permission as nonprejudicial to the exercise of one's rights regardless of whether permission is granted.
Are word lists, whether intended as lexical or indexing data, protected by copyright? Can one take, modify, and publish a list of words based on an existing dictionary? Or based on a concordance or index or algorithm-based analysis of a copyrighted text?N16
Word lists as such appear to be factual compilations without sufficient creativity to qualify as works of authorship under the Feist decision. Word lists that reproduce the lemmata of a copyrighted dictionary are more troublesome: I have found no clear answer to the degree of infringement that they might pose, though the argument that such a list alone represents an insignificant portion of the usefulness and market for a dictionary is a fairly compelling one for a finding of fair use.N17
Indexes to particular texts appear not to represent derivative works capable of competing with the original (on the contrary: they normally require access to the original to be useful). One case of perhaps limited applicability bearing on the question is that of The New York Times Co., Microfilming Corporation of America, Arno Press, Inc., and the New York Times Information Service, Inc., v. Roxbury Data Interface, Inc., Byron A. Falk, Jr., and Valerie R. Falk (3 May 1977)N18 in which the New Jersey District Court denied a claim of infringment against a company that provided a print index to the New York Times Index.
A closely related question: Does it infringe copyright in an electronic text to provide remote search facilities for it to the general public? Text projects like ARTFL do just this.N19
Such a facility clearly does not infringe against the exclusive right to distribute a work, but, depending on how much of the text is shown, it may well infringe the right to display it. The owner of copy has a right to display that copy, but only to people present (whatever that may mean in the case of an electronic text): certainly not to the public at large. Display of a single line in KWIC format or (better) a line number or page number without any text at all would probably be too insignificant to qualify as an infringing display.N20
When an electronic text is crosses international borders in the process of being copied or distributed, where does the infringement (if any) take place?N21
?? 