No item will be approved for ingestion until its copyright status has been determined to the best of our ability. Copyright protection, as defined in Title 17 of the U.S. Code, is granted to:

• Original works of an author,
• Works fixed in a tangible means of expression, AND
• Works that can be reproduced or communicated with or without the aid of a machine or other device

The item must be original and it must have an author or creator. The author may be an individual or corporate. The work must be fixed in a tangible medium. This would include books, music scores, recordings, films, videos, computer software, etc. Archival collections may contain material that fits the definition such as manuscripts, photographs, correspondence and so forth. Such things as concepts or discoveries are not protected until they were placed in a tangible medium. Titles, short phrases or slogans are usually excluded unless they have been trademarked, which is governed by a different set of laws.

The copyright owner's rights begin when the work is fixed in a tangible expression. Section 106 of Title 17 gives the copyright owner the exclusive right to reproduce the work, create derivations, make copies, perform the work in public, or display the work publicly. Most copyright owners register their works with the Library of Congress however failure to register the work does not diminish the rights of the owner. Failure to register the work merely reduces the ability of the owner to recover punitive damages in court. Violation of copyright owner's rights is subject to criminal penalties under the provisions of title 17.

The following procedure should be used to determine if a collection may be ingested:

Copyright ownership does not last forever. When it ceases, the work is said to pass into the public domain. The U.S. Constitution specifically grants the making of copyright laws and policies to the Congress. Congress has tried to keep up with changing technology and international agreements over the years. Thus, the concept of public domain has changed several times in the last century. While there may be a few exceptions, generally speaking the following guidelines may used to determine if a work is in the public domain:

1.   If the work was published before 1923, it is in the public domain.

2.   If the work was published between 1923 and 1963, it is protected for 28 years from the date it was published with a copyright notice. Authors had the right to renew the notice for another 67 years.

3.   If the work was published between 1964 and 1977, it is protected for 28 years with an automatic extension for 67 years.

4.   The copyright act of 1976 added protection for works from the point of creation in a fix medium. Thus, a work created after the effective date of the law (January 1, 1978) is protected for the life of the author plus 70 years.

5.   In the case of joint authors, the public domain "clock" starts at the death of the last surviving author.

6.   In the case of corporate authorship, the time is 95 years from publication or 120 years from creation-whichever is shorter.

Care must also be taken to determine if "second parties" are in the collection. For example, a collection of papers may contain photographs not taken by the donor, letters written to the donor, or manuscripts collected by the donor. In such cases, we not only have to determine the rights of the donor, but of the second parties as well. Special care should also be given to items created by students (see below).

If it turns out that any or part of the collection is subject to copyright protection, go back to what ever legal instrument was used to transfer ownership to us. It is important to make the distinction between copyright and ownership. Normally, whenever a collection is donated or purchased, the ownership of the collection passes to the institution. However, copyright is a specific property by itself and is separate from the physical collection. Thus, the institution does not acquire copyright unless the legal instrument (deed of gift, transfer of custody, acknowledgment of receipt, etc.) specifically states that the owner cedes it.

If the donor gave us copyright, then we can proceed without further consideration. We may desire to add a copyright statement to the digital object indicating that the image may not be reproduced without our permission. In some cases, the donor may grant a blanket permission in the instrument to use the collection for specific purposes. Make sure that digitizing the collection and making it available to users via electronic means does not violate the spirit or intent of the permission. In those cases where the copyright has been retained by the donor or the relationship of second party rights are unclear, we will need to seek permission to digitize and distribute the collection.

If the determination is made that permission is needed, the owner of the copyright should be contacted. Any permission should be in writing and specifically state what rights are being granted. Documentation regarding permissions should be retained. The item being displayed must contain a statement that clearly states who owns the copyright and that the digital image is being used with the author's permission. The purpose of the statement is to absolve the library of liability should the image be misused by a patron.

Items created by students have the full protection of the copyright laws. This includes work written for any course as well as works created in conjunction with competition for prizes or scholarships. This is true for all deposits made to us regardless of whether the student attends Keene State College or another institution. In addition to granting permission to use the material, the student needs to be advised of their rights under the Family Educational Rights and Privacy Act (FERPA) as well as the policies regarding student privacy in place at their institutions. If the student requests the redaction of personal or other information under the provisions of FERPA, it must be accomplished prior to scanning their work. Documentation regarding student permissions should be retained. Evidence should also be present in the documentation indicating that the student consent was informed. This is best accomplished by a statement on the form they sign that explains their rights under the copyright law and FERPA. It is also important to remember that FERPA applies to all students at the institution regardless of their age, whether they are enrolled in credit or non-credit courses, or whether they are auditing or fully matriculated.

The only exception to this policy is work written for the institution as part of employment. That is classified as "work for hire" under title 17. Copyright of "work for hire" items is owned by the institution, not the author. FERPA, however, creates a gray area if the student's name is on the work. Therefore, it may be prudent to redact any reference to the student prior to scanning.

It is conceivable that some of the items we ingest will be excerpts that will be covered in title 17 section 107 of the U.S. Code. This is the so-called "fair use" section. The exact rules that constitute fair use are somewhat general in nature. Thus, it is often said that fair use is more of a legal defense for using copyrighted material without permission than a specific exception to the law. However, there are four tests that will usually determine if your use of the material is fair:

1.   The purpose of the use is not commercial in nature. Educational purposes are generally allowed.

2.   The nature of the copyrighted work is factual. Generally, quoting factual statements is permitted. Works of fiction, audio-visual works, recordings of performances, generally present problems.

3.   The amount and substantiality of the excerpt is small in relation to the entire work.

4.   The use of the work will not damage any potential value it may have in the marketplace.

The DCMA is a law that clearly states that all digital representations are protected under the provisions of title 17. This is true if the items are digital copies or born digital. It protects all digital creations whether or not there is a copyright notice contained within them. Thus, a request to deposit born digital items must be examined for copyright implications. If permission is required, it must be obtained prior to ingestion. DCMA also allows libraries and archives to make reproductions for the purposes of preservation without obtaining permission. However, such copies may not be distributed outside the institution. Further, DCMA requires institutions to use only lawfully acquired copies of copyrighted works, and places the burden of proof on the institution.

TEACH is a revision of several sections of title 17 to enable the use of copyrighted materials in online distance learning and course management systems. Such programs are only allowed in accredited, non-profit educational institutions serving enrolled students. Such programs are required to include copyright statements and institutions are responsible for authenticating each of their users and not allowing any reproduction by downloading or printing. If called upon to support a program governed by TEACH, we must still ensure that the materials ingested meet the standards for fair use. Another consideration is that no material may converted from analog to digital if there is a digital version available. Any material not specifically allowed under the TEACH provisions must have copyright permission.