Newspapers.com

Reader Bruce Massof couldn’t understand it.

He’s a user of the Newspapers.com website and has printed or downloaded articles from newspapers published before 1923.

He knows darned good and well that 1923 is a key year in U.S. copyright law: anything legally published in the United States before 1923 is officially once and for all forever and ever amen out of copyright.1

And yet each of the pieces Bruce has printed or downloaded — even those published well before 1923 — comes with a notice at the bottom: “Copyright © 2018 Newspapers.com. All Rights Reserved.”

Yup. Sure does. The Legal Genealogist tested it this morning with an 1894 article:

So… what’s this all about if, in fact, anything legally published in the United States before 1923 is officially once and for all forever and ever amen out of copyright?

There are three things at play here: (1) the fact that not every newspaper on the Newspapers.com website is out of copyright; (2) the fact that there is one kind of copyright that does apply even to a page that includes an out-of-copyright article; and (3) the terms of use/terms of service of the Newspapers.com website itself.

First off, remember that many websites that offer collections of newspapers span a number of years. On Newspapers.com, for example, you can access some newspapers from the 1700s like the Pennsylvania Gazette and, with a Publisher Extra subscription, some newspapers that are being published even today.

And while those editions of the Pennsylvania Gazette are out of copyright, that Chicago Tribune article from 2018 is most definitely still covered by copyright — and will be for a very long time. For items published today as a work of corporate authorship, such as a newspaper, copyright lasts for 95 years from the date of publication.2

Now I suppose it would be possible to set things up within the Newspapers.com system to put the copyright notice on individual articles printed or downloaded when the newspaper is or may be still copyright-protected, and leave it off for the older ones, but that would be a programming challenge and expensive. So you know that the option that’ll be chosen instead is the cheaper easier one: to simply include the copyright notice on everything.

That’s one reason why the notice is on that 1894 clearly-out-of-copyright article.

But the second factor comes into play here too: Newspapers.com does actually have a copyright, called a compilation copyright, that protects the website as a whole. As one of the Ancestry family of websites, the terms of use state clearly that: “Each of the Services is protected by copyright as a collective work or compilation, pursuant to U.S. copyright laws, international conventions, and other copyright laws.”3

A compilation copyright for a website like this one covers “the selection, coordination or arrangement of … ‘preexisting works’—works that were previously published, previously registered, or in the public domain.”4 The individual items don’t get a copyright, but the work as a whole does. (So don’t go trying to copy the entire website and publish it on your own server.)

And that compilation copyright may also explain why the notice is on that 1894 clearly-out-of-copyright article. Not to claim that this individual piece is copyrighted, but to remind the user of the compilation copyright, which in turn ought to remind us about that third issue we all need to consider: the website’s terms of use or terms of service.

Those terms, remember, are the limits somebody who owns something we want to see or copy or use puts on whether or not he’ll let us see or copy or use it. These are limits that are different from copyright protection, since the law says what is and isn’t copyrighted and somebody can own a thing without owning the copyright. So this isn’t copyright law; it’s contract law — we and whoever owns the thing we want to see or copy or use reach a deal.5

The terms and conditions for Newspapers.com — part of uniform terms for all Ancestry websites — are fairly liberal but not unlimited:

• We agree “Not to … reproduce or publish any content or information found on the Services, except as explicitly described in these Terms.”6

• “You may use the Ancestry Content only as necessary for your personal use of the Services or your professional family history research, and download the Ancestry Content only as search results relevant to that research or where expressly permitted by Ancestry.”7

• “You are free to use a small portion of individual photos and documents that are Public Domain Content, but you must obtain our written permission to use more than a small portion of these collections.”8

So… in a perfect world, any copyright notice that appears on materials that really are out of copyright individually, like that 1894 article, should say that it’s only a compilation copyright.

But it’s a good reminder anyway in any case to think about copyright, to keep within the scope of the compilation copyright, and to remember the terms of use limits that apply to this and to every website that we use.


SOURCES

  1. See generally Judy G. Russell, “That 1923 date,” The Legal Genealogist, posted 30 Nov 2016 (https://www.legalgenealogist.com/blog : accessed 12 June 2018).
  2. See Peter B. Hirtle, “Copyright Term and the Public Domain in the United States,” updated 10 Jan 2018, Copyright Information Center, Cornell University (https://copyright.cornell.edu/ : accessed 12 June 2018).
  3. ¶ 5, “Content Used in the Services,” Ancestry Terms and Conditions, Ancestry.com (https://www.ancestry.com/ : accessed 12 June 2018).
  4. Copyright in Derivative Works and Compilations, Circular 14, PDF at 1-2, U.S. Copyright Office (https://www.copyright.gov/ : accessed 12 June 2018).
  5. See generally Judy G. Russell, “Reprise: a terms of use primer,” The Legal Genealogist, posted 29 Apr 2015.
  6. ¶ 2, “Requirements for Using the Services,” Ancestry Terms and Conditions.
  7. Ibid., ¶ 5, “Content Used in the Services.”
  8. Ibid.
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