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³        Copyright Registration of Genealogical Publications          ³
³                     by VIRGINIA DeMARCE                             ³
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Following is a memorandum from Virginia DeMarce, NGS President
relating to copyright registration of genealogical complilations. 

This memorandum is a PRELIMINARY ALERT directed particularly to 
participants in the NGS/CIG Projects Registry conducted through the 
CIG Bulletin Board. Anyone involved in such a project should be aware 
of what is happening and possible implications for eventual copyright 
registration of the project, particularly since the Projects Registry 
is now recognized by the American Library Association. Any comments 
and concerns should be directed to: 
 
          Harriet Oler, Chief 
          Examining Division 
          Copyright Office 
          Library of Congress 
          Washington, D.C. 20540  202-287-8207 
 
Please cc. NGS for informational purposes with anything you send to 
Ms. Oler, so we can compile a file on the problem. 
 
Copyright exists under Title 17 U.S.C. (Revised to September 30, 1987, 
in the copy I have.)  The current Copyright Law took effect on 1 
January 1978. Copyright DOES belong automatically to the author, and 
the author has the legal right to affix a copyright notice to his or 
her work as soon as copies are distributed to the public, WHETHER OR 
NOT the work has been registered with the Copyright Office. 
Interpretation of copyright law is done by the U.S. court system by 
rulings handed down in individual cases heard. 
 
The Copyright Office does "administer" Title 17 U.S.C. in the sense 
that it REGISTERS people's claims to copyright in their works and 
makes a public record of this claim. This IS very important to 
authors, because without public record of copyright, it is much more 
difficult for an individual author to prosecute a case for piracy, 
plagiarism, infringement, etc. 
 
Article 101 of the Copyright Law, "Definitions," lists the terms used 
by the law. For "compilation," the paragraph reads: 
 
     A "compilation" is a work formed by the collection and 
     assembling of preexisting materials or of data that are 
     selected, coordinated, or arranged in such a way that the 
     resulting work as a whole constitutes an original work of 
     authorship. The term "compilation" includes collective works. 

Copyright on such compilations has always been restricted by the 
limitations contained in Article 103: 
 
     Article 103. Subject matter of copyright: 
 
     Compilations and derivative works 
 
     (a) The subject matter of copyright as specified by section 102 
     includes compilations and derivative works, but protection for 
     a work employing preexisting material in which copyright 
     subsists does not extend to any part of the work in which such 
     material has been used unlawfully. 
 
     (b) The copyright in a compilation or derivative work extends 
     only to the material contributed by the author of such work, as 
     distinguished from the preexisting material employed in the 
     work, and does not imply any exclusive right in the preexisting 
     material. The copyright in such work is independent of, and 
     does not affect or enlarge the scope, duration, ownership, or 
     subsistence of, any copyright protection in the preexisting 
     material. 
 
The Examining Division of the Copyright Office examines every work 
submitted for registration to see if it is eligible for protection 
under the terms of the U.S. Copyright Law. For the last decade, to a 
considerable extent, copyright has been registered if the person 
producing a work had considerable "sweat of the brow" equity in it. 
This is the area where the current problem for genealogists lies. 
 
This problem was brought to NGS' attention last week by Jo White Linn, 
one of our former Regional Councilors, Host Society Chairman of the 
Raleigh Conference in the States, etc. We have done considerable 
follow-up. Suzanne Murray, the NGS Newsletter editor, had already 
heard about the matter, and had started to compile a file in 
preparation for a future article. I have met with a representative of 
the Copyright Office, and plan to meet with them again, as well as 
presenting written comments. 
 
It should be noted that a review of the Federal Register for 1986, 
1987, and January-September 1988 indicates that no public notice for 
the following policy review was printed in any of the materials that 
the Federal Register indexes to the Copyright Office for that period. 
 
At this point, please pause and read through APPENDIX I to this 
memorandum, so you can reference my further discussion. [Note: Part 5 
of this message]
 
Thank you. My informal conversation with the Copyright Office 
representative on Thursday, November 17, elicited the following 
information: that this is part of a review of copyright of "fact-
based" compilations (including such works as telephone directories and 
parts lists) and that when the review was put in place, it was 
indicated internally to copyright examiners that the intent was NOT TO 
DISCOURAGE the production of "socially useful" compilations. 

The immediate problem would seem to be that the criteria currently in
use by the Copyright Office run directly counter to the criteria for 
usefulness of a genealogical compilation: They emphasize selection, 
whereas we hope for comprehensiveness; they emphasize editorial 
reorganization, whereas we hope to leave the material as close as 
possible to its original form and then produce those "mechanical" 
alphabetical or chronological indexes to it. 
 
I know that the following types of compilations have been questioned 
by the Copyright Office within the past few months: 
 
     Verbatim transcriptions of Colonial-period court records 
     Cemetery record/tombstone transcriptions 
     Indexes to marriages from a single church or county. 
 
If CIG Projects Registry participants know of other types, please 
notify NGS ASAP. 
 
NGS will be compiling a response to this "review of policy and 
practices concerning fact-based compilations" at the Copyright Office. 
At least some of the following considerations will be presented: 
 
     1) Utilization by the compiler of paleographical skills       
        in the decipherment of pre-modern handwriting. If this is 
        not copyrightable for genealogical compilations, it 
        logically will not be copyrightable for medieval documents 
        (the British Rolls Series, the Domesday Book, etc.) and will 
        be of serious implication for producers of series of 
        historical records. 
     2) Compilations which are simultaneously translations (French, 
        German, or Latin church records, etc.): They are not refusing 
        to register new translations of Dante, for example, though 
        that is a "sole source." 
     3) Questions about the implications of this for the copyright 
        of "collective works" such as periodicals, as many major 
        genealogical journals devote a considerable portion of their 
        space to transcripts, abstracts, indexes, etc. 
     4) Definitions of "a single source," which at this moment 
        appear to be rather fluid at the copyright office. For 
        instance, one cemetery is a "single source"; five out of 
        twenty-seven cemeteries in a county are not a "single 
        source" - but apparently, if you do ALL of the cemeteries of 
        a county in one volume, that becomes a "single source" again 
        as "taking all of the information in a given universe." 
     5) Implications for the copyright of many works involving 
        editorial skills, which the Copyright Office at present does 
        not seem to be considering in relation to genealogical 
        compilations, but which should also concern historians as 
        well as genealogists. For example, what about editions of 
        the complete correspondence of a historical figure? Is this 
        "multiple source" because the letters are gathered from 
        several archives, or "single source" because one man wrote 
        them all? 

Jo White Linn in her position paper has emphasized the editorial 
skills necessary in the transcription of Colonial court records: "For 
example, is it John Brooks Taylor (a man with three names) or is it 
John Brooks, taylor (tailor?)?" She emphasizes that, 
 
"Spelling in ancient documents is phonetic and varies from page to 
page with the same clerk. Punctuation is a matter of whim and largely 
nonexistent. Often personal names are not capitalized but other nouns 
and adjectives may be. Ergo: the indexer is reaching educated 
decisions with each entry. Another example:  the will of John Smith 
names his daughers Elizabeth Jane Mary Anne Dorothy Susan with no 
punctuation. Are there three daughters with double names, six with 
single names, or some with double names and some single? The indexer, 
armed with knowledge of that particular family and from an examination 
of other records of the period, reaches a conclusion prior to the 
compilation of the index to the transcription." 
 
     6) Has the Copyright Office consulted with the National          
     Archives, the American Association of Archivists, etc. before 
     choosing to categorize "genealogical compilations" with telephone 
     directories and parts lists rather than with editions of 
     historical sources? If not, why not? 
 
This is a very preliminary memorandum, compiled in less than a week. I 
am aware than when I go into Glebe House this morning, there is a note 
on my desk asking me to call the Copyright Office back, and I will do 
so. In the interval, however, we all need to be thinking about the 
implications of this matter. 
 
Thank you. 
 
cc:  Jo White Linn, CG, Salisbury, NC 
     Suzanne Murray, Editor, NGS Newsletter 
     Barbara Clawson, Chairman, NGS/CIG 
     Page Putnam Miller, Coordinating Committee for the 
       Promotion of History 
     Larry Tise, Executive Director, American Association 
       for State and Local History 
     Scharlott Blevins, President, Federation of Genealogical 
       Societies, and all other presidents of the 
       Genealogical Coordinating Committee participating 
       and observing organizations 
     Kip Sperry, NGS Regional Councilor, Salt Lake City 
     President, Genealogical Publishing Company 

APPENDIX I. "Guide Letter" from the U.S. Copyright Office, GL-65A, 
5/88. "GENEALOGIES UNCLEAR WHETHER COPYRIGHTABLE COMPILATION" 
  
The Copyright Office is undertaking a review of its policy and 
practices concerning fact-based compilations to determine under what 
circumstances registration is appropriate. Genealogical listings and 
transcriptions of public records are included in our review because 
they raise a number of copyright registration questions. 
 
The copyright law protects original works of authorship, including 
compilations. A "compilation" is defined in the law as: 
 
     "... a work formed by the collection and assembling of 
     preexisting materials or of data that are selected, 
     coordinated, or arranged in such a way that the resulting 
     work as a whole constitutes an original work of authorship." 
 
Ordinarily, a compilation must represent originality in the selection 
and/or arrangement of materials in order to be copyrightable. They key 
is that there must be some editorial judgment in the selection of 
information -- as compared to taking all of the information in a given 
universe, i.e., in a given topical source or relevant pool of 
information -- or some originality in the arrangement of that 
information beyond merely a standard or mechanical ordering such as an 
alphabetical, sequential, or chronological arrangement. Thus where the 
elements comprise the entire universe from which to select, and where 
the arrangement is strictly alphabetical, chronological or the like, 
no registration would appear to be in order. 
 
Public records taken from a single source which are merely transcribed 
and alphabetically or chronologically indexed do not meet the 
requirements of original selection or arrangement and are therefore 
not registrable. On the other hand, if several different sources are 
consulted and the information from several diverse sources is combined 
in such a way as to meet the definition of a copyrightable compilation 
contained in the copyright law, registration as an original 
compilation may be in order. 
 
It is not clear whether the selection and/or arrangement of entries in 
this work meet these requirements of original compilation authorship. 
If you believe the work contains copyrightable compilation authorship 
of the type described above, please explain how the work was created 
and on what basis you believe it is copyrightable. Specifically, you 
should comment on: 
 
     1) The criteria the compiler used in selecting these 
        particular entries. 
     2) The size and nature of the universe from which these 
        entries were selected. 
     3) Whether the compiler used judgment in selecting entries or 
        whether all entries meeting the criteria were included. 
     4) Whether the particular arrangement of entries in this work 
        represents copyrightable authorship, if it is not a mere 
        mechanical ordering of the type described above. 
 
In your reply, please return the enclosed carbon .... 
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³ This originally appeared as messages on the National Genealogical  ³
³ Conference,  and  is provided in this form by The Source of Magic  ³
³ BBS, Ridgefield, CT., 06877, 203-431-4687, Opus 141/725, 2400 BPS  ³
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