Intellectual Property Rights
"Intellectual property refers to creations of the mind: inventions, literary and artistic works, and symbols, names, images, and designs used in commerce" (World Intellectual Property Organization).
Intellectual Property is a complex topic. We can not discuss every aspect of IP here, but we explain what it is that a depositor is agreeing to when they deposit materials at AILLA.
The main sources for the information presented here are Georgia Harper's Copyright Crash Course, which is maintained by the University of Texas Libraries and the Copyright Law of the United States (U.S.C. Title 17).
When someone deposits materials at AILLA, they are effectively publishing those materials through AILLA. Since AILLA is a part of the University of Texas at Austin, located in the United States, U.S. copyright laws apply to all the resources and metadata in the archive; however, if there were a legal dispute about some materials in the archive, some questions might be answered under the laws of the country of origin, for example, whether a work is protected at all, or who its creators are. Complicating matters further, if a work is infringed in a country different from the country of origin or publication, that country's laws would apply to the issue of whether the work is infringed, and perhaps to other questions as well.
- What is a copyright?
- What is an original work?
- What does it mean to be fixed in a tangible medium?
- How do we define authorship?
- What are the rights governed by copyrights?
- What are moral rights?
- How can resources in the archive be used?
- Can a previously published work be archived?
- Should I archive something that I may want to publish later?
What is a copyright?
Copyrights are property: they can be sold, given away, or inherited. The U.S. Copyright Act of 1976 limits copyright to "original works of authorship fixed in any tangible medium of expression."
What is an original work?
This is intentionally vague, and can ultimately only be decided in court. It is easiest to give examples of things that are not original: facts, like the population of Mexico City; ideas, like the idea of the internal combustion engine; systems; titles or short phrases. Things like morphological paradigms and word lists are not likely to be considered original. Things that are likely to be considered original works are poetry, prose (fiction or non-fiction), computer programs, artwork, songs, musical notation, a web page, drawings, photographs, recordings of music and songs.
There is considerable debate about whether or not the traditional knowledge, oral histories, stories and myths of a People can be copyrighted, or whether such works should be treated as facts, ideas, or general knowledge, which can not be copyrighted. AILLA takes the position that a specific recording is an original work, even if it is a traditional story recounted in a highly formalized manner, because the voice of the individual performer is unique, and therefore the particular recording is a unique expression of that story. Assertion of a copyright in a particular recording would not mean that no one else could recount the same story in their own voice; it would mean only that no one could use the copyrighted recording without legal authorization, either a right under the Copyright Act (for example, fair use), or permission from the copyright owner.
What does it mean to be fixed in a tangible medium?
If you are writing something on a computer, it is fixed as soon as you hit the Save button. Similarly, audio or video recording a person speaking fixes that particular speech act at that particular moment permanently on that digital (or analog) storage medium. U.S. copyright law applies automatically to protect the work as soon as it is fixed (saved, written, recorded, drawn): you do not have to register the work or mark it in any special way. Other countries may require that you mark the work with a copyright symbol © or register it with a Copyright Office of some kind.
Note that according to U.S. copyright law, the expression has to be fixed. No one can own copyrights to speech or an idea that is not recorded or written down, like a live, unrecorded, performance of a narrative. You can only own copyrights to the fixed, recorded or written expression. However, this is not the case everywhere, and some countries do not require fixation.
How do we define authorship?
"An author is someone who contributes copyrightable expression to the work" (CCC). We use the term creator instead of author when talking about AILLA's resources, but the rule is the same. The creator of an AILLA resource might be any of the following, depending on the nature of the resource and the laws of the country where it was created: speaker, signer, narrator, interviewer, orator, singer, author, translator, annotator, artist, illustrator, photographer, videographer, musician.
The creator may in fact be an employer, such as a university or non-governmental organization or research project. Works created by the employee in the context of their employment may be considered "works for hire" under U.S. and other law, and the copyrights to those works would belong to the employer. But the laws of some countries do not follow this principle. Researchers should make explicit agreements with their employees if this is what they intend. Without an explicit agreement, the law in the country where the research project is being carried out may favor the creator over the employer.
What are the rights governed by copyrights?
Generally, copyrights govern who can use a work in what way. Copyright holders have the right to:
- make copies;
- distribute copies;
- publicly display;
- publicly perform;
- make derivative works.
Copyright holders can license any of these rights to someone else, which means they transfer those rights to the second party. If you publish a book, for example, you license the rights for making and distributing copies, and probably for performing or displaying the work, to the publisher in exchange for royalties, or a portion of the profits that the publisher makes by using your work. Some publishers insist on a transfer of all of the rights in the work. Such a transfer is called an assignment.
When you deposit a resource at AILLA, unless we make another specific agreement in writing, you license AILLA to publish the resource on the Internet, make and distribute copies of the resource, transfer the resource to other archives, and use the resource for other non-profit, university, purposes (such as in a presentation about the archive). This license is non-exclusive: you can do all of these things as well, and only you can make derivative works without explicit permission. AILLA holds its license in perpetuity.
What are moral rights?
Copyright is really about money: if there is any profit to be made from a work, copyrights help to determine who gets what. Most of AILLA's resources are not likely to have any market value, and so the economic rights addressed in the copyright law are somewhat irrelevant.
Moral rights are the creator's right to attribution for and integrity of their work (U.S.C Title 17, Sec 106A).
This means that the work must always be credited to its creators (unless they wish to remain anonymous), and that no one is allowed to alter the work in a way that would cause embarrassment or damage the reputation of the creators. You can't transfer your moral rights: they simply belong to you. Moral rights are only part of U.S. copyright law with respect to original works of art and limited editions of 200 or fewer prints, but they are much more broadly defined in the copyright laws of some other countries.
How can resources in the archive be used?
The use of resources in the archive is governed by the notion of Fair Use of Copyrighted Materials. This is another vague concept, but generally, use of copyrighted work is considered fair if:
- it is for academic, educational, or teaching purposes, not for commercial purposes;
- only the relevant portion of the work is used (you don't copy the whole work or large parts of it);
- the use does not have a negative effect on the potential market or fair value of the work.
A work might not be protected by copyright if there are no living creators or descendants, or if it is not original work, or if it is very old. A work that is not under copyright protection is in the public domain and may be used by anyone for any purpose.
All users of AILLA resources must agree to the Conditions for Use of Archive Resources, which specifically state that they may not use archive resources for commercial purposes.
Can a previously published work be archived?
Publishers typically require assignment of the copyrights in a work they publish for a specific period of time. When that time limit expires, the copyrights return to the creator or their heirs. If you retained your copyrights or the rights belong to you, you are free to do whatever you want with the work.
You can find out what the terms of your publishing agreement were by referring to the contract you signed with the publisher, or by contacting your publisher if you no longer have your contract.
Should I archive something that I may want to publish later?
The short answer is "No." If you have written an article, textbook, book, or song, or have created a painting or photograph or drawing or film that you are planning to publish or market in a traditional, commercial venue, then you should not deposit that work with AILLA. Most publishers will not want to publish a work that potential buyers can get for free on the web. (But you can ask -- You always have the right to negotiate a publishing contract.)
However, you can and should deposit the primary materials that a your work is based on. For example, you could write a book or journal article about recorded performances of verbal art and you could deposit the primary data (the recordings, transcriptions, and translations) that the work is based on. Or if you write a textbook that includes stories with translations, you can still archive the original recordings and transcriptions. We encourage you to do this, because there are few traditional ways to publish this sort of material, but AILLA's users would be interested in hearing and reading the primary resources. AILLA's metadata has a place for identifying any works that are related to deposited resources so that information will be readily available to archive users who might then be inspired to go out and buy your book.