Magazine article Information Today

Information Business Meets Copyright Policy

Magazine article Information Today

Information Business Meets Copyright Policy

Article excerpt

I have had the privilege of being involved with copyright for most of my life from a variety of perspectives: teacher, lawyer, librarian, musician, artist, and journalist. To me, copyright is more than a series of words on a page or a legal abstraction I discuss without an applied, consequential understanding. Instead, it is a code that has governed my creative, scholarly, and information activities from childhood.

My experiences have led me to develop three copyright axioms. The first is that copyright is the most prevalent form of intellectual property in the U.S. The second axiom is that exceptions to copyright outnumber the rights that the law provides to copyright owners. This principle is surprising to most since most of the rhetoric about copyright in this country inordinately focuses on rights. However, it is a statutory certainty.

The final axiom, which is most applicable in a digitally networked environment, is that the presence of a contract irrevocably changes the copyright bargain. It is this last axiom that has come into play recently in controversies involving OCLC and Facebook. Let's take a look at these two controversies and how license contracts (the type that often goes unread) threaten the use of information by overriding copyright principles.

Core Copyright Principles

In the U.S., copyright law protection automatically exists whenever a person creates an original work and then records that work in a way that is perceptible to others. A person does not have to publish the work or register the work with the U.S. Copyright Office. The creator is not even required to place the copyright symbol on the work to receive the protection.

While the threshold for originality is low, certain information cannot ever receive copyright protection. For example, actual information cannot receive copyright protection because it fails the originality test.

Usually, the person who creates and fixes the original work also serves as its copyright owner. An alternative form of copyright ownership, or joint ownership, exists when two or more authors create an original work with the intention that their contributions will be merged into inseparable or interdependent parts of a unitary whole. When this occurs, the joint authors are co-owners of copyright in the work.

Application to OCLC WorldCat

To fully understand the issues here, grab a clean sheet of paper and a pen and then draw a line down the middle. On the left side of that line, write "Joint Copyright" at the top of the page; on the right side, write the words "Facts ??Copyright."

Here's the rationale for the left side of the page: OCLC members who use the WorldCat database generally contribute original cataloging records and enhanced cataloging records. Typically, the original catalog records that members contribute include enough original information to qualify for copyright protection. Given the vast number of members who contribute original cataloging to WorldCat, these contributions result in a massive and ongoing joint copyright where there are too many co-owners to count and virtually no way to divide the rights among any of the co-owners.

The rationale for the "Facts [not equal to] Copyright" side is simpler. OCLC members also contribute enhanced or corrected cataloging records, which include everything from amendments to a publisher's location to the proper spelling of an author's surname. Many of these enhancements may be as valuable to WorldCat as the original cataloging. But because the enhancements and corrections are factual (and not original), they do not qualify for copyright protection.

Now let's analyze OCLC's "policy" change, which has clear, definable legal consequences.

OCLC's 'Policy' Change

In November 2008, OCLC introduced a document titled "Policy for Use and Transfer of WorldCat Records" to "modernize record use and transfer practices for application on the Web, foster new uses of WorldCat data that benefit members and clarify data sharing rights and restrictions. …

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