California Library Association:

Library Web Pages: Identifying Public Domain Sources to Borrow From

The following article appeared in California Libraries May 2002 (Vol. 12 No. 5)

How can you tell if an item is in the public domain? First start with the assumption that any original work in a fixed medium is copyrighted Here's a mnemonic to help ferret out the exceptions, the elusive PUBLIC DOMAIN. The term conjures up images of a joyous information commons, an ocean of free text, free images and free love. Or, with a little imagination, it conjures up a mnemonic, a FRIDGE, bursting with FREE FOOD inside.

FRIDGE Facts, Recipes, Ideas, Dedicated works, Government works and Expired works.

Facts

Facts are not copyrightable. Perhaps this is intuitive. How could someone actually own the rights to a fact, like a street address, a bibliographic citation, a URL, or a population statistic?

Factual compilations: What about becomes a heated issue in copyright, however, is compilations of facts, including bibliographies, databases, directories etc. Courts look to see if a compilation has a "modicum of creativity" that merits copyright protection.

Let's look at a library example. Burt Bookmobile compiles a bibliography of "Baseball Books." May Willie Webmaster copy and post it to his library's website?

Classic lawyer answer: it depends. Although each citation is not copyrightable, the work as a whole may be. Certainly any original annotations would satisfy the modicum of creativity test. Citations that are merely factual (including call numbers) would not.

Next we would look to see if there is a "modicum of creativity" in the selection or arrangement of the baseball bibliography.

Selection: If the selection is based on a creative decision, such as "best books," "staff favorites," or the like, the "modicum" criteria is met, and a thin copyright protection exists. Oddly enough, if the selection is a comprehensive listing (such as all baseball books owned by the library, or all baseball books published that year), the "modicum" criterion for copyright protection is not met. [1]

Arrangement: If the arrangement is creative, such as "favorite sluggers," "bat boys with twinkles in their eyes," etc., the arrangement is copyrightable. If the arrangement is purely alphabetical or chronological or even geographical, this would be lacking even a "modicum" and the criteria for copyright protection is not met. [2]

Thin Copyright. If the bibliography has annotations, or a creative basis for its selection and arrangement, then it has a "thin copyright." That means that the annotations, the selection or the arrangement is protected, but not the citations themselves. If you think about it, it makes sense - one library certainly couldn't lock up the citations, requiring the rest of the world to get permission to use them. These are facts, available for extraction by anyone. It becomes an issue when large selections from a single work are taken and republished. A number of such cases wind up in court, and the trend is to disfavor the original compiler. Since 1991, courts do recognize copyright protection based on "the sweat of the brow." Even if a librarian has written a book-length baseball bibliography, the same principles apply.

Isn't it plagiarism to copy the bibliography? Yes. To copy someone else's work, without attribution, can be plagiarism. Plagiarism is an ethical concern, not a legal one.

Webmaster tip: It is legally permissible to copy facts from other sources, including citations, link addresses etc. Read the Note on Compilations above for lists of facts.

Recipes

Recipes are a subcategory of Facts. I include it because it's a great and (to some) shocking illustration of uncopyrightable facts. (Also I needed it, or my mnemonic would be "FIDGE.") If there's only one way to list the ingredients and directions for the Sallie's best chocolate chip cookie, then its treated as factual. Compilations of recipes (like in a cookbook) get a "thin copyright," that protects any fanciful drawings or creative use of language in the directions, the selection and arrangement of the recipes. But other than that, each basic recipe is not eligible for copyright, and you may copy them freely, just like any other fact.[3]

Ideas

Ideas must be patented to get legal protection.[4] The great ideas you get from seeing someone else's web page are not patented. Merely the expression is protected by copyright. If you can take an idea and express it your own way, you may use it freely.

Dedicated works

A dedicated work is one that would have been protected by copyright, but its owner "dedicates" it to the public domain. For example, Library Juice is a news digest for librarians. Its editor, Rory Litwin, a dedicated soul, has dedicated his contributions to the public domain. The publication states: "Original material and added value in Library Juice is dedicated to the public domain; beyond that the publisher makes no guarantees."[5] [Emphasis added]

Government works (U.S.)

United States Government works can be a real boon to library webmasters. The copyright law explicitly states that these works do not get copyright protection.[6] Librarians know that the federal government has a wealth of information and images on all kinds of topics. Webmasters can find text and images on the Internet by limiting searches to the .gov domain. It gets a little complicated though. Private contractors sometimes write government publications, but retain the copyright. Sometimes the government republishes a copyrighted work by someone else, and this does not remove copyright protection. Do your best to make sure the U.S. Government produced the work and look for any copyright notices in case it's a republication.[7] Webmaster tip: To find free works, limit text and images searches to .gov domain.

Expired works

You thought the millennium parties were big. Archivists around the country are planning a big bash on January 1, 2003. That's the date a large number of unpublished works enter the public domain. What's the cutoff date, you ask, for old works to expire? It depends on what laws were in effect on the date the work was created or published. Luckily, Laura Gasaway has scrupulously studied the past laws and put together a chart, making a near-impossible task (determining if a copyright has expired) a possible one. It's at www.unc.edu/~unclng/public-d.htm

It's Public Domain, But They Want Me To Pay

Any search for "public domain" images will find items "for sale" on the Internet. This is possible if a private party has physical custody of an item. Example: a museum creates and then sells a high quality digital reproduction of a work of art in the public domain.[8] In the digital world, the only way to maintain that custody is through license agreements (e.g. clickwrap) or encryption. If you sign "or click" an agreement, you are bound to its terms.[9] If you find the image without "signing" an agreement, you are free to use it.

Further Resources

To investigate the copyright status of a work, see the Copyright Office's "How to Investigate the Copyright Status of a Work" (pdf)

For more on the public domain, see Stephen Fishman, The Public Domain: How to Find and Use Copyright-Free Writings, Music, Art & More (Nolo: 2000) Note: Chapter One is available online at www.nolo.com Then search for "public domain."

When Works Pass into the Public Domain
www.unc.edu/~unclng/public-d.htm

When Works Pass Into the Public Domain in the United States: Copyright Term for Archivist at http://cidc.libraryl.cornell.edu/copyright published in Peter B. Hirtle, "Recent Changes To The Copyright Law: Copyright Term Extension," Archival Outlook, January/February 1999.

Next: Library Staff Speech and the First Amendment...

This analysis is based on the cases described below. Certainty is only possible if these precise circumstances go to court.
In 1991 the U.S. Supreme Court hurled this thunderbolt at database companies and all others who made their living compiling facts. In Feist Publications v. Rural Telephone Service, 499 U.S. 340 (1991), the Court soundly rejected ownership of compilations of facts based on "the sweat of the brow." In the case, a regional telephone directory publisher took all the entries from local phone books and compiled them into one book. The Court said that there was no copyright infringement so far as the individual entries went, since they were facts. The issue then, focused on the compilation of the entries. Could there be a "thin copyright" protecting the selection and arrangement of the telephone book entries? The answer: NO. In that case, there wasn"t even a modicum of creativity (originality is a requirement for copyright). Everyone with a listed phone number was in the directory, and the arrangement was alphabetical. The Court was not sympathetic to database providers whatsoever. It wrote, "The result is neither unfair nor unfortunate. It is the means by which copyright advances the progress of science and art." In a recent federal appellate court case in Minnesota, Schoolhouse v. Anderson (pdf), 275 F.3d 726 (8th Cir. 2002), a real estate agent started a website with listings of area schools, including staff education levels, classes offered, sports offered etc. A great deal of information was taken from an annual magazine issue, Schoolhouse. The Court found there was no copyright infringement. It wrote, "a competitor may take the bulk of the factual material from a preexisting compilation without infringing the author"s copyright," citing BellSouth Advertising v Donnelly Information Publishing, 999 F.2d 1436 (11^th Cir. 1993) cert. denied, 510 U.S. 1101 (1994)(insufficient originality to extend copyright protection to the use of the standard subject headings in a yellow pages) See also Warren Publ"g., Inc. v. Microdos Data Corp., 115 F.3d 1509 (11th Cir. 1997), cert. denied, 522 U.S. 963 (1997), in which there was insufficient originality to extend copyright protection to the geographically arrangement in a television and cable directory. The Copyright Office noted, in its 1997 Report on the Legal Protection of Databases, "most of the post-Feist appellate cases have found wholesale takings from copyrightable compilations to be non-infringing. The trend is carrying through to District Courts as well."
The Copyright Office writes: "Mere listings of ingredients as in recipes, formulas, compounds or prescriptions are not subject to copyright protection. However, where a recipe or formula is accompanied by substantial literary expression in the form of an explanation or directions, or when there is a combination of recipes, as in a cookbook, there may be a basis for copyright protection." See In Answer to Your Query: Recipes at http://www.loc.gov/copyright/fls/fl122.pdf (pdf).
Ideas that are kept secret (using nondisclosures etc.) can also get legal protection, but you won"t find them on websites. If you do, they are no longer secret, and you are free to use them.
This is well put. The publication recognizes that the work that the publisher has not written himself is copyrighted. The notice goes on to state, "Original senders are credited wherever possible; opinions are theirs. If you are the author of some email in Library Juice which you want removed from the web, please write to me and I will remove it." Library Juice 5:12 - March 28, 2002 http://libr.org/Juice/issues/vol5/LJ_5.12.html (look at the very end of the issue).
17 U.S.C. 105 (2001).
A good, though explanation of pitfalls to look for when evaluating federal government publications is given in Stephen Fishman, The Public Domain: How to Find and Use Copyright-Free Writings, Music, Art & More (Nolo: 2000).
To the dismay of many museums that sell photographs of their collections, a federal court in New York determined that high quality photographs of art do not merit copyright protection. The works at issue were considered "slavish copies," without any additional creativity. Thus the photographs, while new, were part of the public domain. Bridgeman Art Library v. Corel Corp., 36 F. Supp. 2d 191, 1999 (S.D.N.Y. 1999).
Though controversial, licensing agreements have been upheld, even when they protect works that are not copyrightable. See ProCD, Inc. v. Zeidenberg, 86 F.3d 1447 (7th Cir. Wis. 1996).

Mary Minow is an attorney and consultant with librarylaw.com. She is currently writing a book on library law for the American Library Association with Tomas Lipinski. She is President of the California Association of Library Trustees and Commissioners.

Permission to reprint for nonprofit use is granted. The librarylaw.com column is not intended to replace legal advice. For a particular fact situation, consult an attorney.