Genealogists, from my experience, routinely copy obituaries and other newspaper content without a second thought. If I were to go online in any of the major online digital newspaper archive programs, I would find an obituary for one of my ancestors who died within the past 30 years or so without too much trouble. I could then easily either download the image of the newspaper or capture it with a screen capture program and add the entire obituary to my ancestor's file as a source. Going back thirty years gets into the gray area of copyright law, when documents such as newspapers may or may not be subject to copyright. In addition, being able to determine if the copyright law applies and then determine who owns the copyright may be almost impossible.
Let's say a work was published in 1984. U.S. Copyright law uses the term "work" to clearly apply to anything with copyright protection including a newspaper article such as an obituary. Under the existing U.S. law in Title 17 of the United States Code, A work published in that year with a copyright notice would be protected for 70 years after the death of author. But if the work was of corporate authorship, protection would last for 95 years from publication or for 120 years from the creation of the work, whichever expires first. OK, now newspapers can become brittle and even unusable in about 30 years. See "The Deterioration and Preservation of Paper: Some Essential Facts." from the Library of Congress. Hence the issue.
But wait a minute, are newspapers covered by copyright? Under the current definition of a "work," they certainly are as collective works. For a more detailed explanation see my previous post entitled, "Old Newspapers and Copyright." You can also refer to the Pennsylvania Newspaper Handbook article on copyright from the Pennsylvania NewsMedia Association.
So using digitized material from newspapers is no different than any other work covered by copyright law. But what about obituaries? Well, the author of the obituary may or may not retain his or her copyright. Retention of the copyright will be determined by the agreement made between the newspaper that printed the obituary and the author. In some cases, the author assigns all rights to the publication of the work to the publishing newspaper.
Copying copyrighted works, including newspapers, involves the risk that the copyright holder will exercise his or her rights and sue you for copyright infringement. Is this something to worry about?
But what about fair use? Fair use is a very slippery legal topic. The term "fair use" comes from legal cases decided by the U.S. Federal Courts and it is referred to as the "doctrine of fair use." What this boils down to is that whether or not a particular use comes within the doctrine has to be decided on a case by case basis. Fair use is essentially a defense to an infringement of copyright claim. Now the question of copying obituaries, copy right and fair use. I suggest reading Judy G. Russell's post entitled, "Copyright and the obit." Then I don't have to go through all the same issues.
So how does the wholesale digitization of newspapers proceed at such a terrific pace? That is a very good question and it may someday be answered. But meanwhile, here are a few suggested links to guidelines for digitization (digitisation in much of the English speaking world) of newspapers:
- National Digital Newspaper Program from the Library of Congress
- Michigan State Library Guidelines for digitizing a newspaper
- When can you digitize old newspapers from the LibraryLaw.com blog
- Library Digitization Projects and Copyright - Part I - Introduction and Overview this is in six parts linked from the first installment
- Digitizing California’s Newspapers: A Guide and Best-Practices for Institutions Around the Golden State Created by the Center for Bibliographical Studies and Research, UC Riverside for LSTA Grant 40-7696, August 2011
The list could go on and on, but let's just say there are legal issues and even if the entity conducting the digitization project has permission to use the images, there may still be copyright claims if the newspaper content falls within one of the time periods where coverage is offered by the particular copyright law in effect at the time. How is that for a weaselly legal answer? But until someone decides to sue, it will likely be business as usual in the genealogical community.
Now, I will finally get to the list of online digital newspaper collections by state, but there is very likely to be a gap of a few pages since this particular article is being written from Canada and I am on my way off into the wilds of Alaska.