But Is It Legal?

I wrote about this topic a year or more ago, but it resurfaced this week. I heard from a person who wanted to start an online registry of "who owns which genealogy CD-ROM disks." Then, if someone wanted to look up information on a particular CD-ROM disk, that person could send an e-mail to an owner of the particular CD-ROM in question, asking for the information. In this way, not everyone has to purchase every CD-ROM disk. At the outset, this sounds simple. However, I believe it is a rather clear violation of U.S. copyright laws. I'll leave it to newsletter readers in other countries to decide if the same is true of the copyright laws in their countries; I will focus only on U.S. laws.

When I mentioned the copyright issues to my correspondent, she replied that surely I was mistaken. After all, the information is public domain, so the CD-ROM producers could not possibly claim any copyrights. Regrettably, many others believe the same thing. However, I must point out that such a belief ignores a number of points in the copyright laws.

To be sure, when talking about U.S. birth, marriage, and death records as originally recorded by local or state government officials, the original facts certainly are public domain in the United States. That is, these statements of fact are not copyrightable. The same is true for most other records of genealogical interest, such as church records, military records, pension applications, and so on. The person or company who compiled these facts into book or CD-ROM format looked at public domain information, just as you, too, are free to look at the same original facts and to compile them into some other format as you wish.

The difference arises when you begin to talk about compiled records or indexed records or whatever other improvements have been made to the original records. When a person takes old records and transcribes them into some format that is easier to read or is indexed for easier access or has other improvements added, all of those improvements are copyrighted. If you use the improved version, you must abide by the copyright laws involved.

You may find it easy to insert a CD-ROM disk into your computer to look up information. In fact, using a CD-ROM version is much easier than traveling to the original records repository and looking at original, faded records with difficult-to-read handwriting. That improved access on CD-ROM is copyrighted, even though the original facts are not. The software that does the lookup is probably also copyrighted and can only be used for the purposes specified by the copyright holder. When you use the software, you are bound to the terms specified in the license agreement.

Genealogy.com produces hundreds of genealogy CD-ROM disks, so they obviously have an interest in this topic. The copyright statement on all their most recent Family Archives disks is very clear and is an excellent explanation of this topic. Here is an extract from their copyright statement:

The fact is, nobody can own the historical information itself. Instead, publishers (such as Genealogy.com) earn copyright protection by adding value to the bare facts. Publishers start with information available in public or private record and add value to that data. For example, we add value to genealogical data by:

• Selecting which records and data fields to compile;
• Filling in missing or incomplete areas by merging sources;
• Interpreting ambiguous information;
• Arranging their compilation in a unique format;
• Adding retrieval software to make the data easy to search.

Basically, we help minimize the barriers between you and the family history information you seek. U.S. copyright laws protect the use of information published in indexes, abstracts, interpretations, and search engines, even if they don't apply to the original data. Because Family Archives are entitled to this protection, and because Genealogy.com has paid considerable costs for their development, we rely on copyright law to help safeguard that investment.

While the above is from a Genealogy.com CD-ROM, almost all other genealogy CD-ROM producers have somewhat similar copyright statements for their own protection.

These copyright claims are based on clear case law. The best-known case concerning copyright improvements to public domain data is that of Rural Telephone Service Co. versus Feist Publications, Inc. This case went all the way to the U.S. Supreme Court, which eventually ruled that a third-party could republish material from telephone directories. However, in that decision Justice O’Connor clearly defined what may or may not be copyrighted. Justice O’Connor wrote: "This case concerns the interaction of two well-established propositions. The first is that facts are not copyrightable; the other, that compilations of facts generally are. Each of these propositions possesses an impeccable pedigree."

Justice O’Connor went on to explain: "There is an undeniable tension between these two propositions. Many compilations consist of nothing but raw data -- i. e., wholly factual information not accompanied by any original written expression. On what basis may one claim a copyright in such a work? Common sense tells us that 100 uncopyrightable facts do not magically change their status when gathered together in one place. Yet copyright law seems to contemplate that compilations that consist exclusively of facts are potentially within its scope.
"The key to resolving the tension lies in understanding why facts are not copyrightable. The sine qua non of copyright is originality. To qualify for copyright protection, a work must be original to the author. See Harper & Row, supra, at 547-549. Original, as the term is used in copyright, means only that the work was independently created by the author (as opposed to copied from other works), and that it possesses at least some minimal degree of creativity. 1 M. Nimmer & D. Nimmer, Copyright Sec. 2.01[A], [B] (1990) (hereinafter Nimmer). To be sure, the requisite level of creativity is extremely low; even a slight amount will suffice. The vast majority of works make the grade quite easily, as they possess some creative spark, "no matter how crude, humble or obvious" it might be. Id., Sec. 1.08[C][1]." 

When Justice O’Connor wrote that it "possesses at least some minimal degree of creativity," she clearly covered indexed records or records converted to electronic format. These electronic records possess much more than a "minimal degree of creativity."

Finally, Justice O’Connor wrote some words that every genealogist needs to read. In the same U.S. Supreme Court decision, she specifically wrote about copyrights of compilations of U.S. census records:

"Census-takers, for example, do not "create" the population figures that emerge from their efforts; in a sense, they copy these figures from the world around them. Denicola, Copyright in Collections of Facts: A Theory for the Protection of Nonfiction Literary Works, 81 Colum. L. Rev. 516, 525 (1981) (hereinafter Denicola). Census data therefore do not trigger copyright because these data are not "original" in the constitutional sense. Nimmer [p*348] Sec. 2.03[E]. The same is true of all facts -- scientific, historical, biographical, and news of the day. "They may not be copyrighted and are part of the public domain available to every person." Miller, supra, at 1369." 

Factual compilations, on the other hand, may possess the requisite originality. The compilation author typically chooses which facts to include, in what order to place them, and how to arrange the collected data so that they may be used effectively by readers. These choices as to selection and arrangement, so long as they are made independently by the compiler and entail a minimal degree of creativity, are sufficiently original that Congress may protect such compilations through the copyright laws. Nimmer Sec. 2.11[D], 3.03; Denicola 523, n. 38. Thus, even a directory that contains absolutely no protectible written expression, only facts, meets the constitutional minimum for copyright protection if it features an original selection or arrangement. See Harper & Row, 471 U.S., at 547. Accord Nimmer Sec. 3.03.

This seems clear to me: public domain records that have been compiled in such a manner that the compilation author decided what facts to include and then decided how to arrange those facts, even providing the necessary software to display those facts, has indeed added copyrightable value and thereby deserves protection under the U.S. copyright laws.

To be sure, an occasional, single query from a friend or relative asking you to look up something in a book, a magazine, or a CD-ROM won’t raise any eyebrows. Copyright holders generally ignore this sort of casual request. Conversely, don’t try to set up a large-scale enterprise offering such services to the general public. Should you do so, you may find an unwelcome letter in your mailbox from a legal firm.

For more information about the case of Rural Telephone Service Co. versus Feist Publications, Inc., click here.