A study in contrasts
It’s a great question, from reader Dana J.:
Which, of course, means that the answer is…
Let’s back up for a minute and make sure we’re all on the same page as to what we’re talking about here.
But, you’re thinking, if it’s rules, how can it be considered a contract? Nobody gave you a choice about the rules when you subscribed to, say, GenealogyBank.com or Ancestry.com, did they?
It’s a little like your relationship with the TSA. You don’t have to go through security at the airport. Of course, that means you don’t fly, either.
Copyright, on the other hand, is a set of legal protections “granted by statute to the author or originator of certain literary or artistic productions, whereby he is invested, for a limited period, with the sole and exclusive privilege of multiplying copies of the same and publishing and selling them.”3 Or, in the words of the U.S. Copyright Office, “a form of protection provided by the laws of the United States to the authors of ‘original works of authorship’ that are fixed in a tangible form of expression” consisting of the exclusive right to, among other things, make or distribute copies of the work or authorize others to do so.4
Copyright is automatic. It comes into existence the minute the work is created and persists as long as the law specifies (at the moment, the lifetime of the author plus 70 years].5 And, under the law, it has certain exceptions including the one Dana raises, the concept called fair use.
That, according to the Copyright Office, is “a legal doctrine that promotes freedom of expression by permitting the unlicensed use of copyright-protected works in certain circumstances. Section 107 of the Copyright Act provides the statutory framework for determining whether something is a fair use and identifies certain types of uses—such as criticism, comment, news reporting, teaching, scholarship, and research—as examples of activities that may qualify as fair use.”6
So fair use can be a way for us to use copyright-protected works for teaching, scholarship and research — the kinds of things we do as genealogists.
Except when we agree not to.
By contract, the agreement between us and a website for example, we can give up any number of rights we might otherwise have — like the right to sue in court rather than arbitrate a dispute — in return for something we want to have — like quick and easy online access to information.
Not because copyright law says we can’t use them.
- Henry Campbell Black, A Dictionary of Law (St. Paul, Minn. : West, 1891), 1204, “Use.” ↩
- Wikipedia (http://www.wikipedia.com), “Terms of service,” rev. 13 Feb 2018. ↩
- Black, A Dictionary of Law, 276, “copyright.” ↩
- U.S. Copyright Office, Circular 1: Copyright Basics, PDF, 1-2 (https://www.copyright.gov/ : accessed 4 Apr 2018). ↩
- Ibid. ↩
- U.S. Copyright Office, “More Information on Fair Use,” (https://www.copyright.gov/ : accessed 4 Apr 2018). ↩