Finding the Public Domain: Copyright Review Management System ToolkitSkip other details (including permanent urls, DOI, citation information)
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At a Glance—Overview
The ideas expressed in this overview are meant to be a brief introduction to the topics more fully described later in the main toolkit. With that said, we think the simple principles found in this overview should be foundational to any copyright review project. Later we will show you how we work these principles into our daily practice.
If you are reviewing the copyright status of a set of published books in your collection, you’ll first want to make certain that your institution’s leaders are aligned with your proposed project. Several key questions must be answered before you move forward, including the following:
- Is funding or a dedicated percentage of employee time available for and committed to the review project? Without a financial commitment from the institution or from some external funding source, copyright review at any scale is impossible. The greater the scale of your review project, the greater the financial commitment required—for review projects shared across multiple institutions, project administration costs can be significant.
- Are administrators and your institution’s office of general counsel aware of your project and supportive? Making a copyright determination and implementing it requires a degree of legal risk for your institution. For example, if your review determines that a work is in the public domain, and your institution makes it available online, the risk is that one or more rights holders will disagree with the determination and threaten to bring suit. While in many cases the risk is low, your institution’s leadership must be willing and able to evaluate and accept the risk.
- What are your project’s time constraints, and what resources are available for its evolution? In any institution with competing priorities, resource commitment questions are extremely important. Institutional leadership should clearly communicate whether the project is bounded by a specific set of goals or if it is meant to continue, change, and adapt over time.
Proper project scoping is the single most important thing you can do to ensure that you are putting your project resources to their best use. Your project’s scope defines the pool of works you choose to review and must be intimately tied to your project’s goals.
For example, if one of your goals is to maximize public domain determinations, you would not want to review works published in the United States after 1989. Copyright renewal and notice were not required for US works published after 1989; with limited exceptions, the vast majority of post-1989 works will not have entered the public domain.
Similarly, if you are seeking to identify public domain works under the copyright law of the UK, you are far less likely to identify public domain works published after the current year minus seventy years. UK copyright law protects a single-author book published by a UK author for seventy years after the author’s death. Unless it was published posthumously, a book published in 1950 would be protected by copyright in the UK until at least 2021. It would therefore not make sense for a UK-centric copyright review project to focus on 1950s books at this time.
For US-based copyright determinations for books, we have found that the most fruitful publication date range for making copyright determinations is 1923–63, during which time many works entered the public domain due to failure to adhere to US copyright formalities. For non-US determinations, we tend to map our candidate volumes to the relevant country’s copyright duration. Again, given that an author of a work is usually alive when the work is first published, we currently do not review UK works published after the current year minus seventy years (UK is a “life + 70” regime; for example, 1944 + 70 = 2014. Works published by authors who died in 1944 entered the public domain in the UK on January 1, 2015).
A full understanding of the copyright laws of the jurisdictions relevant to your project is essential to any copyright review system. For a fuller understanding of the legal analysis and research that we have undertaken, see the full legal section in the main body of this toolkit.
To research US copyright law, we have drawn heavily on resources including current and past US Copyright Acts, Peter Hirtle’s Copyright Term and the Public Domain in the United States chart, the US Copyright Office’s Circulars, and copyright treatises like Nimmer on Copyright.
For international legal regimes, our primary resources have been Geller and Nimmer’s International Copyright Law and Practice and the text of specific intellectual property laws and treaties available through the World Intellectual Property Organization’s WIPO Lex. These resources have been essential for the work we have done to date. For specific international legal regimes that are not covered by these resources, your project team should explore working with translators and copyright experts specializing in the specific copyright laws related to your project.
CRMS benefited from having a centralized core staff able to manage the large-scale copyright review being performed by decentralized reviewers at our nineteen partner institutions. Our core staff included a project manager, a trainer, a copyright specialist, and a primary developer. Project administration, development, and system maintenance all require substantial oversight and must be performed by a management team.
Beyond personnel dedicated to overseeing a project, your project must have reviewers who are patient and detail oriented, can dedicate five to ten hours per week to the practice of copyright review, and are interested in and willing to work with the nuances of copyright law. We have found that debate and discussion is important to this process; resources permitting, copyright review should not be the work of a single individual.
If your project is to grow in size, you must identify reviewers who share the traits listed above, are willing to learn and follow set protocols, and can commit weekly hours to the project (so their review skills do not atrophy). Ideally, your review project will have the flexibility to substitute new reviewers over time as individual and institutional priorities shift. Project planning should include a method for accommodating staff changes in the project team over time.
The evolution of the copyright review system may also inform personnel choices. If your project begins to take on non-English languages, for example, support from reviewers fluent in those languages would be ideal. Alternatively, working with language experts and training English-language reviewers may be effective. Thus far, we have had some success in piloting Spanish-language reviews. Some languages, such as Chinese or Russian, would demand collaboration with a committed team of language experts.
A rights determination project like the one discussed here requires significant and ongoing technical resources, including a rights review interface, a database, and staff sufficiently skilled to support them. For this reason, we strongly recommend having a full-time developer devoted to the project.
In some cases, it is probably best that your team leaves the copyright review of specific works to a different or future set of reviewers. Knowing when you are not the ideally suited reviewer for a job is important; identifying the right person or institution and collaborating with them is the best way to address some copyright review challenges. Ultimately, we would like to see copyright review work shared more broadly, with one set of reviewers performing the reviews and another verifying the results, validating them, and ultimately facilitating access decisions for partner institutions.
The main focus of a copyright review for a book is answering one question: Is any part of this book still protected by copyright? We tend to ask this question first at the volume level, but we are also sensitive to in-copyright elements contained within the body of the book.
You can perform a copyright review with the physical book in front of you, but we do not recommend this if you intend to perform copyright reviews at scale. Our reviewers often review hundreds of titles in a given week; doing this with physical copies is incredibly inefficient and introduces significant logistical challenges. From our perspective, being able to use digital scans for copyright determinations is essential to large-scale copyright review.
Resources like the Stanford Copyright Renewal Database and the Virtual International Authority File (VIAF) are foundational tools for copyright review. In the United States, renewal of copyright was a requirement for works published from 1923 to 1963; we use the Stanford Copyright Renewal Database to look for the presence or absence of a renewal record for books published in this time range. International legal regimes are generally based on the life of the author plus a set number of years (for instance, the UK adds seventy years; Canada adds fifty). Identifying the death date of the author(s) of a work is central to determining its copyright status in these regimes.
Our copyright review outcomes can be generalized into three broad categories: “public domain,” “in copyright,” and “und/nfi” (undetermined/needs further investigation). The und/nfi category gives reviewers an option when a copyright review is too complex or is likely to be indeterminate based on the resources available. Large-scale copyright review requires practical, flexible features to promote efficiency; for CRMS, the und/nfi category is one such feature.
We document our copyright research as thoroughly as possible but in a way that is streamlined and does not excessively burden our reviewers. The interface provides standard rights and reason codes so that reviewers may select them with minimal additional work. We also provide reviewers with a free-text notes field, so that they may log any additional information relevant to their copyright review. To the degree possible, we encourage uniformity in our codes and notes fields; uniformity is key to searching and studying the historical data generated by our reviews.
Our documentation serves as a foundation for our copyright determinations. It provides us with a basis for verifying our results, tracking the research that went into any given determination, and reappraising work if new information becomes available or if we wish to perform deeper research on a specific category of works.
For example, we often mark works with probable anonymous authors (works where it is not possible by reasonable inquiry to ascertain the identity of the author) as undetermined and advise reviewers to add “anonymous” to the free text notes field. We do this because it is frequently very difficult to confirm that an author is anonymous rather than simply hard to identify. If we later decide to perform a deeper review of these anonymous works, perhaps to determine whether the anonymous authors have been identified, we can search for those works where we’ve made the “anonymous” note.
Rights determinations translate into public access online, and making access decisions in accordance with your rights review should be mapped out at an early stage in your copyright review project. Ideally, we recommend this be done in collaboration between rights reviewers and developers of the platform being used for access. Failure to do this could result in inefficiencies and repeated efforts later in the process.
Access based on our copyright determinations generally falls into the following three groups: (1) access to the work within the United States; (2) access worldwide; and (3) access to the work outside of, but not within, the United States. The third category of access—access to works outside of (but not within) the United States—is due to the possibility of copyright restoration, which we will detail more fully in the main CRMS Toolkit. For now, suffice it to say that the concept of the public domain may vary from country to country. For example, in some cases, works that have entered the public domain in their country of origin are still under copyright in the United States due to copyright restoration.
Individual errors are difficult to avoid, and some form of verification should be a part of your copyright review.
Our baseline quality control method is a double-review system: Two reviewers review each book in CRMS independently. Their reviews are then compared; if the reviews match, the review is accepted by the system. If they do not match, an expert reviewer adjudicates the reviews and comes to a final determination. This system helps us minimize the impact of individual human errors that should be expected in any review project.
In the CRMS Toolkit, we will discuss third-party verification of copyright reviews. We believe that working with third parties is an important means of checking and refining your copyright review project—ideally, an independent review will show that your system is functioning well and in alignment with the law. A third-party review is a valuable means of making sure that you have developed processes that gird the integrity of your project.
Copyright review requires time. The more complex your reviews become, the more time, human resources, and funding will be required. A single-author book written between 1923 and 1963 with absolutely no content other than the author’s main text is a pretty simple proposition for copyright review. Serials, newspapers, and other more complex copyright objects often demand deeper study. A movie containing sound recordings (each with their own layers of rights), an underlying script, and moving images will typically require a substantial expenditure of resources to review; funding for complex copyright review projects should be calibrated accordingly.
If your institution wants to take on complexity, we celebrate you. At the same time, we would caution that, in addition to higher costs, some of the tools our CRMS reviewers rely on (e.g., Stanford Copyright Renewal Database) were not developed for more complex copyright objects. To date, a fully searchable database of the Catalog of Copyright Entries has not been developed. Searching through the CCE to discover nonbook registrations and renewals can be laborious, time-consuming, and consequently expensive.
Your funding source will also impact your project’s ability to make changes throughout its course. The very generous IMLS grants supporting CRMS work have been absolutely essential to the success of CRMS, and we are deeply grateful for the support we have received. At the same time, managing cost-share partners made it difficult to repurpose reviewers and modify our goals as we moved through the grant period. Managing cost-share reports and communicating with a large number of reviewers and participating institutions also present administrative costs. These should be factored into the project budget or funding proposal.