Copyright and the study group

“We’re just students!”

Reader S.H. is a member of one of the many groups that have formed since the publication of Mastering Genealogical Proof by Thomas W. Jones, Ph.D., CG, CGL, FASG, FUGA, FNGS. Just that string of initials after his name tells you (in case you’ve been living in a cave for the last many years) that Tom Jones is one of genealogy’s heavy hitters, and this book is a great new resources for really understanding the Genealogical Proof Standard and how to apply it in building our family histories.1

copyright.busS.H.’s group and many of the others are studying the book, working through its lessons and then expanding their discussions to the resources that Tom cites in the book.

And that’s where they ran into trouble.

“There are many works cited in that book,” S.H. writes, including articles printed in the National Genealogical Society Quarterly, The American Genealogist, OnBoard and more. “You must belong to the organization that publishes those periodicals or pay a fee to obtain copies of them.” Other references are to chapters of books like Professional Genealogy, edited by Elizabeth Shown Mills, CG, CGL, FASG, FNGS, FUGA.2

Some group members own some of the issues of the journals and magazines in which the cited articles have appeared and have access to others, and some own the Professional Genealogy book. And some are taking the position that those who own these works should make copies of the cited materials for the whole group so they can work with them.

“After all,” the reasoning goes, “we’re all individuals — and we’re just students.”

S.H. isn’t so sure: “My position is that it is a violation of copyright laws if I provide photocopies of the articles… What does the law say? Is there a copyright infringement if I (or someone else) makes copies of these articles for everyone in the group to read and study?”

Oh boy does S.H. have good instincts. Because every single thing the group is talking about making copies of is protected by copyright, and making copies of all those materials for the group members, even to read and study, is not authorized by any section of the copyright law.

First off, let’s be very clear about what the copyright law says about copies. It says that the copyright owner has the exclusive right “to reproduce the copyrighted work in copies.”3

That’s where the analysis has to start, where the default setting in all our minds has to be. Not “I can make copies unless” but rather “only the copyright owner can make or authorize the making of copies unless…”

It doesn’t matter if we’re only making copies for personal use and not for resale, and it doesn’t matter if we’re students (or teachers). We still start with the idea that we can’t make copies… unless an exception applies.

And there isn’t any study group exception that allows for making copies of large numbers of copyrighted works. There isn’t even a general exception for educational use. In the House Judiciary Committee Report to the 1976 revision of the Copyright Act, the Commitee repeated the conclusion it had come to before: “The Committee also adheres to its earlier conclusion, that ‘a specific exemption freeing certain reproductions of copyrighted works for educational and scholarly purposes from copyright control is not justified.’”4

What the Judiciary Committee did generally go along with, and what it reprinted as part of its report, was an agreement by representatives of the Ad Hoc Committee of Educational Institutions and Organizations on Copyright Law Revision, and of the Authors League of America, Inc., and the Association of American Publishers, Inc. on on Guidelines for Classroom Copying in Not-For-Profit Educational Institutions with respect to books and periodicals.5 The idea was to clarify what would be fair use for teachers.

Now it isn’t a sure bet that these guidelines would be considered applicable to a study group like the one S.H. belongs to, but they do offer some real guidance — and, in The Legal Genealogist‘s view, some real cautions. Because if it wouldn’t be considered fair play for a teacher in a non-profit educational institution, I’d be very leery of considering it fair play in any other educational setting.

The key elements of that agreement are that a teacher can provide students with one copy each of an item for classroom use or discussion, if and only if:

• The copying is of a brief element, and the relevant definition for the study group’s purposes is “a complete article, story or essay of less than 2,500 words.”6

• The idea for the copying came from the teacher and it came up at a time when “it would be unreasonable to expect a timely reply to a request for permission.”7

• “Not more than one … article, … essay or two excerpts may be copied from the same author, nor more than three from the same collective work or periodical volume during one class term” and “not be more than nine instances of such multiple copying for one course during one class term.”8

• “Copying shall not: (a) substitute for the purchase of books, publishers’ reprints or periodicals.”9

How does the study group’s proposed use stack up? Well, most journal articles are more than 2,500 words. The study group is self-directed and so it can’t really argue it doesn’t have time to get permission. The group seems to be suggesting it could copy lots of articles. And there are publishers’ reprints available of most of the items the members want to copy.

I’d have to rate the proposed copying as a total fail under the guidelines.

Back to square one for the group: members need to buy their own copies of the works they want to study… or get permission.


SOURCES

  1. The book is Thomas W. Jones, Mastering Genealogical Proof (Arlington, Va. : National Genealogical Society, 2013), available from the National Genealogical Society.
  2. Elizabeth Shown Mills, ed., Professional Genealogy: A Manual for Researchers, Writers, Editors, Lecturers and Librarians (Baltimore, Md. : Genealogical Publishing Co., 2001).
  3. “Exclusive rights in copyrighted works,” 17 U.S.C. §106.
  4. “Copyright Law Revision,” Report of the House Judiciary Committee, House Report No. 94-1476 (1976), set out in the Historical and Revision Notes to 17 U.S.C. §107, Office of the Law Revision Counsel, U.S. House of Representatives (http://uscode.house.gov : accessed 4 Sep 2013). See also U.S. Copyright Office, Circular 21: Reproduction of Copyrighted Works by Educators and Librarians, PDF version at p. 5 (http://www.copyright.gov : accessed 4 Sep 2013).
  5. Ibid., Circular 21 at 6-7.
  6. Ibid. at 6.
  7. Ibid. at 7.
  8. Ibid.
  9. Ibid.
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37 Responses to Copyright and the study group

  1. Or they could join those organizations and be able to download their own copies on demand which really is the most awesome thing!

    • Judy G. Russell says:

      It is an awesome benefit of membership to, for example, the National Genealogical Society. But not everything the group mentions is in that category. OnBoard, for example, is published by the Board for Certification of Genealogists, and you can’t just join that! (You can however buy back issues.)

  2. If we want to use anything copyrighted, read Judy’s last sentence here…”get permission.” May I quote you, Judy G. Russell?

  3. Polly Kimmitt says:

    Great info, Judy. This stuff really needs clarifying by someone with legal background and you do a marvelous job of it! Not wanting to quibble, but in general, why wouldn’t a teacher have ample time to request permission from an author? Presumably the curriculum is well thought out. If it’s something current, in the news, e.g., I can understand it, though.

    • Judy G. Russell says:

      It’s specifically because something can come up that’s unexpected or unpredictable — either something in the news or something the teacher didn’t think of but a student question raises, for example — that the “can’t get permission in time” aspect is there, Polly. In most classes, you have one opportunity for that “teaching moment” because you have to move on to other things in the curriculum, and you seriously may not have time to get permission. Heaven knows I’ve had lessons I’ve thought out and thought out and thought out that have been set on their heads by a single student question — and the language here is designed to allow for that sort of thing.

  4. Sheri Fenley says:

    Judy,

    My study group (which was done in Google HOA) is finished. But for others just starting or are currently in a group – what if they went to a library and made a copy of the article. Would this be in violation? What if they ordered and paid for an article like from the Allen County Library? Just curious

    • Judy G. Russell says:

      The same issues apply, Sheri. Each member would have to decide personally if making one copy or ordering one copy for his or her own use is allowed, and no member could get one copy and then recopy it for the group without permission.

  5. Yvonne Crumpler says:

    It is not the instructor’s responsibility to provide all source material cited when teaching a class. It is the responsibility of each individual student to obtain copies of articles that the student wants to read. You do a really great service to your readers by providing information on the law. If a student does not know how to find the source material check with your local librarian.

    • Judy G. Russell says:

      You’re right, in general, Yvonne, but there are circumstances where something comes up expectedly and that’s what those guidelines are for.

  6. John Wylie says:

    Judy,

    Thanks so much. I’m doing a Roundtable on Genealogy Ethics at the Texas State Genealogical Society Annual Conference in November and you’ve given me the factual material I needed to help Partner Societies in Texas know and follow the law.

  7. AU says:

    On the Board of Certification website http://www.bcgcertification.org/skillbuilders/index.html

    The following skillbuilding columns were published in BCG’s educational newsletter, OnBoard. They are protected by copyright. Individuals may download and print copies for their personal study. Educators are granted permission to provide copies to their students as long as BCG, OnBoard, and the appropriate author are credited as the source of the material. Republication elsewhere is not permitted.

    There are hyperlinks to directly access the articles on the page.

    • Judy G. Russell says:

      That is correct for the specific skillbuilding articles posted on the BCG website. Issues of the newsletter itself does not have that permission statement, and specific permission should be sought.

      • AU says:

        So first you must find the source and then whether or not permissions have been granted. I believe that several of the articles are listed on the website are those referenced in Jones book. I check check to the website would conclude that those listed are permissible. I would encourage everyone to thoroughly read the website or specific source for permissions. There is no one size fits all.

  8. John D. Tew says:

    Great post Judy!

    I think there might be another option for this group if the time they think it will take to get permission from all the copyright owners will be way too long to suit their needs. IF the study group is small (the reader does not tell us how many are in the group, but she says some members own at least some of the proposed study materials) and at least one person owns through purchase or membership a legitimate copy of each or most of the proposed study materials, then they should be able to share the materials around the group with each person reading/studying one while someone else is studying another and then they round robin and exchange until they all get through the study materials. — or all get through one of the sources to begin discussing it in the group. This will take time of course, but could work if there are many materials for which permission must be obtained and the study group is fairly small. Wouldn’t this work and be no different than if say I lent you the copy of “Mastering Genealogical Proof” that I bought and had finished reading?

  9. Harry says:

    I guess going to the library and using interlibrary loan are out of fashion.

    • Judy G. Russell says:

      Not so much out of fashion, Harry, as not helpful when you still can’t make a copy of someone else’s copy, even if someone else is the library — and you need a copy to be able to work well in the study group.

      • Harry says:

        Duh, stop censoring your reader’s comments.

        • Judy G. Russell says:

          That’s the cool thing about having your own blog: you can moderate comments the way you think is appropriate. Feel free to start your own blog, and comment as you see fit!

      • Harry says:

        Sounds like a non sequitur to me. When you go to the library, make a copy of the article you need to read, or if your library doesn’t have it, get it from interlibrary loan. How hard is that?

        • Judy G. Russell says:

          It isn’t a matter of whether it’s hard or not. It’s a matter of whether it’s legal to copy it or not. How hard is that? Apparently very, since lots of folks don’t seem to get it: only the copyright holder has the right to copy the item. That’s the law.

  10. LaBrenda says:

    It would be useful to explain the parameters of the “fair use” doctrine; I know it would not cover wholesale copying of an article but it would be useful information to keep in mind.

  11. Linda J. Walker says:

    What if I go to my local library and ask them to request a copy of a magazine article via inter-library loan? How does that fit into the copyright laws?

    • Judy G. Russell says:

      Reading an article at the library is just fine, Linda — no problems. Copying an article at the library is going to have exactly the same copyright implications as copying it at home or anywhere else.

  12. Harry says:

    Censorship is cowardly

  13. Shelley Murphy says:

    Great information Judy, it reminds me of the rules regarding APA to always cite an article, materials,and obtain permission to use. And no matter what you just simply have to have permission to use outside of your personal use, regarding sharing or printing. I am clear. Thanks

  14. Talea says:

    Judy,

    Thanks for the clarification on this! It has been a big help. Would it be permissible to share a link for your blog post with my study group and my local APG chapter?

  15. David says:

    This is a slightly different issue, but if a person writes a blog, can they give attribution for a concept they found in another place on the Internet? Specifically, the 5 steps of the Genealogical Proof Standard. Can those steps be written out in an instructional blog post with attribution given to the Board of Certified Genealogists or is this copyright infringement regardless of whether attribution is given or not? Is this considered “intellectual property” and the Proof Standard steps are protected against use? I know you cannot plagiarize someone’s original work, but are “concepts and ideas” copyrighted as well if they came from a specific source? This is really hard for me to understand and I’d love some clarification as I long to write instructional blogs on genealogy, but feel like I’m just going to get myself in trouble and want to protect myself from falling into this trap. ~Thank you!

    • Judy G. Russell says:

      David, copyright specifically does not protect ideas. In its FAQs, the Copyright Office expressly states: “Copyright does not protect facts, ideas, systems, or methods of operation, although it may protect the way these things are expressed.” Moreover, BCG’s whole purpose in developing the Genealogical Proof Standard was to help all genealogists do better work. Speaking now as a member of BCG’s Board of Trustees, I think I can pretty much guarantee you that writing accurately about the GPS and how it’s applied in different circumstances and how it can be used to make us all better genealogists is NEVER going to get a writer, speaker, blogger or anyone else into trouble with BCG. Do credit BCG, yes. But please — don’t ever be afraid of discussing, using, giving examples of the GPS. That’s what it’s there for!

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