Comparing terms of use
So there’s a new player in the online access to newspapers field as of yesterday. Ancestry.com launched its new Newspapers.com website, joining GenealogyBank.com and NewspaperArchive.com as the major players in the pay-for-play category.
Now The Legal Genealogist isn’t getting into the debate over whether this is a good thing or a bad thing, particularly for those of us who have those ĂĽber-expensive all-you-can-eat World Explorer subscriptions to Ancestry. You can read all about that in yesterday’s post by DearMYRTLE.1
No, around these parts the concern is always first and foremost a website’s terms of use.
Terms of use, remember, are “the limits somebody who owns something you want to see or copy or use puts on whether or not he’ll let you see or copy or use it. These are limits that are different from copyright protection, since the law says what is and isn’t copyrighted and you can own a thing without owning the copyright. So this isn’t copyright law; it’s contract law — you and whoever owns the thing you want to see or copy or use reach a deal.”2
So let’s take a quick look at exactly what the terms of use of each of these three websites say they’ll allow a user to do.
• NewspaperArchive.com
“You (or “your” defined by your status as an adult user and/or parent or guardian for any minor which you allow to use the Service) may not modify, copy, reproduce, republish, upload, post, transmit or distribute in any way any amount of material from this site including, but not limited to, all documents, images, written material, code and software. You may download Content from this site for your personal, non-commercial use only, provided you abide by all copyright and other proprietary notices and keep any and all Content intact.”3
• GenealogyBank.com
“You, as an individual visitor to this site (the “Site”), and subject to paying the applicable fee(s) to gain access to the Content (As defined under Section 4(a)) available on the Site, are granted a non-exclusive, non-transferable, limited license to browse, search, retrieve, view, print and/or download, the Content on the Site for your personal non-commercial academic, educational and research purposes. Printing and downloading are further limited to insubstantial portions of the data, for temporary storage. You understand and acknowledge that all use is subject to any additional restrictions and disclaimers that NewsBank or its suppliers publish, from time to time. …
You shall not remove any copyright, trademark or other proprietary notices from the Content or Site, nor shall you distribute, modify, transmit, reuse, re-post, or use any Content from the Site for any public and/or any commercial purpose(s). These limitations apply to all Content on the Site, including but not limited to text, images, applications, computer code, audio and video. Any use contrary to these limitations is a violation of the intellectual property rights of NewsBank and/or its suppliers. …
Consistent with the fair-use provisions of the Copyright Act of the United States, you shall reproduce and/or store only insubstantial portions of the Content, resulting from specific searches for your own personal non-commercial academic, educational and research purposes.”4
• Newspapers.com
“You may access the Website, use the graphics, information, data, editorial and other Content only for personal or professional historical research. Republication or resale of any of the Content or other protected data is prohibited. All Content on the Website, whether protected by copyright, contract rights, or both, is provided to you AS IS for your information and personal use only as permitted through the functionality of the Website. If you download or print a copy of the Content for personal use, you must retain all copyright and other proprietary notices contained therein. …
Ancestry hereby grants you permission to use the Website according to these Terms of Use. All Users, whether a Visitor, Free Member or Subscriber, agree that they will use the Website for personal historical research only and not for any commercial purpose. Notwithstanding the previous sentence, professional researchers, professional historians and others conducting scholarly research may use the Website within the scope of their professional work. Ancestry does not claim an exclusive right to images already in the public domain that it has then converted into a digital format. However, the Website contains images and documents that are protected by copyrights or that, even if in the public domain, are subject to restrictions on reuse. By agreeing to these Terms of Use, you agree to not reuse these images and documents except that you may reuse public domain images so long as you only use small portions of the images or documents for personal use. If you republish public domain images, you agree to credit Newspapers.com as the source of the digital image, unless additional specific restrictions apply. If you wish to republish more than a small portion of the images and documents from the Website, you agree to obtain prior written permission from us. Except as provided in this paragraph, you agree that (i) you will not copy or distribute any part of the Website or the Service in any medium without Ancestry’s prior written authorization; (ii) you will not alter or modify any part of the Website or the Service other than as may be reasonably necessary to use the Website or the Service for its intended purpose; and (iii) you will otherwise comply with these Terms of Use.”5
In plain English:
| Website | PersonalUse? | Professional Use? |
CommercialUse? | RepostingAllowed? |
|---|---|---|---|---|
| GenealogyBank.com | Yes | No | No | No |
| NewspaperArchive.com | Yes | No | No | No |
| Newspapers.com | Yes | Yes | No | Some |
Clearly, for anybody who’s doing research for others, the terms of use suggest that eventually, when the offerings are more extensive, one of these services is likely to win out over the others.
But for the average individual genealogist, researching and writing and speaking about genealogy, none of these are frankly good enough. The Legal Genealogist simply has no idea why these websites don’t rewrite their terms of use to provide the service that subscribers most assuredly think they’re buying: the right not just to read the material but the right, consistent with copyright law, to use some reasonable small portion of it in our work.
There’s no reason why, for example, all three websites couldn’t make it clear that copyright law doesn’t apply to anything published in the United States before 1923, so all newspapers published before then are in the public domain, and the terms of use should allow people to use, re-post and re-publish some reasonable portion of that public domain material.
Now we all understand that these services don’t want some data miner to come in and scoop up everything they’ve painstakingly collected — that would put them out of business. But hey… how about saying flat out you can use, say, no more than five individual clippings from newspapers that are in the public domain in a blog post or in a presentation or in a book or in an article you’re writing without having to ask permission?
How about terms of use that say use of any material from newspapers that are still under copyright protection is governed by the fair use doctrine of copyright law and not by the terms of use of the website?
And if permission is required for a use, perhaps because of a contract with one of the newspapers, how about a button on the results page linking to a request form?
Come on, folks. Make it easy for us. And do your best to give us what we want.
Because you’re not the only game in town… and there’s always the Library of Congress’ Chronicling America collection of pre-1923 newspapers where the terms of use are, basically, play nice and don’t fight.
SOURCES
- Pat Richley-Erickson, “First Look at Newspapers.com,” DearMYRTLE (http://blog.dearmyrtle.com : accessed 29 Nov 2012). ↩
- Judy G. Russell, “A terms of use intro,” The Legal Genealogist, posted 27 Apr 2012 (https://www.legalgenealogist.com/blog : accessed 30 Nov 2012). ↩
- “Terms of Use,” NewspaperArchive.com (http://newspaperarchive.com : accessed 30 Nov 2012). ↩
- “Terms of Use,” GenealogyBank.com (http://www.genealogybank.com/gbnk : accessed 30 Nov 2012). See also Judy G. Russell, “Terms of use: GenealogyBank,” The Legal Genealogist, posted 23 Aug 2012 (https://www.legalgenealogist.com/blog : accessed 30 Nov 2012). ↩
- “Terms of Use,” Newspapers.com (http://newspapers.com : accessed 30 Nov 2012). ↩
Thank you Judy for your informative post! Always enjoy your thoughts and information.
Valerie
Thanks for the kind words, Valerie.
Thanks for the update! I love getting your perspective, advice, and learning things I had never thought of before. It’s too bad that the Library of Congress newspapers are so limited. There is nothing for Massachusetts and only one paper in Indiana, the two states that most of my research involves.
Wouldn’t it be nice if more and more newspapers were added to the Chronicling America project, Deborah? I wonder if there’s some way to nudge that along…
Users of these services can use them just for the indexing. Once users find out the name of the newspaper and the date and page, they can obtain images or paper copies from other sources.
My understanding is that if you have the original obitary/article or a microfilm copy or photocopy/image of it from another source, then you do not need to cite the index.
I have ordered newspaper microfilm on interlibrary loan from a state library through my local public library and gone through the rolls frame by frame. Some state libraries/archives will send single copies or images of obituaries by email if you have exact dates.
For a small weekly paper that a genealogist wants to use a lot, it may just be best to buy copies of the microfilm.
Historical societies may have newspapers on microfilm for their local area.
Large public libraries and university libraries may have substantial newspaper microfilm collections. They may even have major newspapers from other parts of the country on microfilm.
Am I not the copyright owner as author of an obituary I published in the hometown paper in 2001?
(a) You are absolutely right that you can (and must in many cases) get a copy of the actual clipping from another source. I’d personally be willing to pay a little more to be able to get and use the clipping from the online source.
(b) You’re also absolutely right that you only need to cite what you actually use. If you use a court record, you don’t bother citing the index that helped you find the court record. The same is true of a newspaper article.
(c) And yes, you are the copyright owner of what you wrote unless the newspaper required a transfer of copyright when it agreed to publish the obituary (possible but rare). The newspaper would also hold a compilation copyright in the paper as a whole.
>. . . where the terms of use are, basically, play nice and don’t fight.
Does that mean no spitballs?
Yeah, darn it, Jeff. No fun at all in THAT library! 🙂
Someone has to provide the levity! 🙂
You can levitate? Cool! Oh. Wait. Different word. Darn.
“There’s no reason why, for example, all three websites couldn’t make it clear that copyright law doesn’t apply to anything published in the United States before 1923, so all newspapers published before then are in the public domain, and the terms of use should allow people to use, re-post and re-publish some reasonable portion of that public domain material.”
Judy, I get the point on US material pre-1923 being public domain – but doesn’t copyright apply to the digitised images created by the vendors in question?
Chris
Under US copyright law, you can’t return something to copyright status once it’s out of copyright, Chris. So copying something that’s in the public domain doesn’t put the old material back under copyright; it only protects anything new that you added. An example would be poetry that’s now public domain. If you chose, say, 25 poems and put them in a new book with an introduction and a particular organization and text around them, your work (the organization, the text, the introduction) would be copyrightable, but the poems themselves would not be.
So here the vendor might have a compilation copyright in the entire set of materials (so you couldn’t simply swipe the entire work product and feel confident under the copyright laws) but not in an individual underlying newspaper article.
Thanks Judy, useful to know!
Chris
Glad to help, Chris.
Thanks for a very informative article!
Glad you found it useful, Brenna!
From what I’ve seen, it looks like you need a separate subscription to spin-off? I saw $80 ($79.95) if I joined through the new link. I haven’t seen it yet, but suspect they’ll do a half-off sale to current subscribers on some semi-regular basis. They do it for some of their other Baby Ancestry products (Fold3, Ancestry at least). Any word if they will do a 10 free page views/day like Newspaper Archive does if you log-in with Facebook?
No mention of Newsbank in your article. I have the yearly subscription (using the nl.Newsbank.com link) which I got a great deal on through a GenealogyBank offer.
By current subscribers, I meant current Ancestry.com subscribers.
Yes, there’s a separate subscription for Newspapers.com from Ancestry. I don’t see anything at this time about special rates or x-days-free (except for the seven-day trial subscription). And NewsBank is the parent company of GenealogyBank. NewsLibrary is only an entryway to its more recent holdings.
Got a sidebar box offering 50% discount a few minutes ago when I logged into Ancestry. That didn’t take long, but a bit longer than I thought it would.
Without more information, $39.95 doesn’t sound like that great a deal. It’s better than $79.95, but I’d want to see a lot more about it first. If a person subscribed to US or World, plus Archives plus Fold3, they would be spending a very large amount of money even if they were able to get 50% off deals for Archives and/or Fold3. Now, they want people to shell out another $40/$80 for Newspapers?
Maybe a small number of professional genealogists and a small group of diehard family genealogists can afford that much, but they are ignoring the huge potential for those who can’t or won’t spend that kind of money.
I’m hoping this isn’t some kind of attempt to get more money by spinning off existing Ancestry pieces unless they also lower the overall price for Ancestry.
Those are exactly the questions being asked by DearMYRTLE, and I hope we all get answers soon.
Does the term “content” mean the information included or does it mean form only?
The word “content” is a defined term at all three sites. You may want to head over to each site and read all of its terms for yourself.
Thank you again for great information.
Just word of warning on the Newspaperarchive.com site. It is poorly constructed and does not always work as indicated. The terms and conditions clearly stated that at the end of your subscription it will be auto-renewed unless you contact them within 72 hours of the auto-renewal date. I communicated to them within 72 hours via the built-in messaging system on the site. They renewed my subscription anyway and when I called them they said that I did not notify them within the 72 hours. The messaging feature does not work on their Web site. You will have to cancel your Credit Card so they will not charge it again.
That certainly is disappointing. I’m sure you can dispute the charge with your credit card company, however.
Thank you SO much for this informative post, Judy. And thanks to Thomas for the link on his GeneaBloggers.com post and to Miriam Robbins in her discussion on the Transistional-Genealogists Forum last Wednesday.
I do hope the 3 websites in question change their terms of use ~ as you say, they are not the only game in town. I for one, never use them, and I feel I am losing out on a lot.
Judy
The problem, in part, has to do with the contracts the sites signed when they acquired the data, Judy. So it’s not clear what changes they can make.
Judy, do you know about the legality of these sites to repost/republish the information? I work for a newspaper, and am curious where they would get the permission to charge for access to our copyrighted material.
You’re going to get a lawyer’s answer, Greg: it depends. Major sites like GenealogyBank or Newspapers.com have entered into contracts with information providers such as newspapers and their rights stem from those contracts. Other sites may have the right to use the material by way of the fair use doctrine and charging for access doesn’t change a fair use into an unfair use; it’s simply one factor used in deciding what is or isn’t a fair use in the first place.
This is the closest post to my question, but it is over 4 years ago. I have an old newspaper clipping without identifying information. I want to use it as a document in my application for Ohio Genealogical Society’s First Family certificate. Their instructions mention that they will make the information available to the public. I found the article on Newspapers.com, which I subscribe to (separately from Ancestry, I might add – which is a whole other discussion!). I had initially “clipped” the image, inserted in a document & added the appropriate source citation, including both the original newspaper & the digital provider. Then I started to think about copyright, as it was published in 1969. So do I need to get permission from the original newspaper? And then include the “Copyright 2016 Newspapers.com. All Rights Reserved.” as that is all that they print on the bottom when I print an image.
It’s a good idea to ask for permission (from the newspaper) for anything still in copyright. As to whether this is still in copyright, consult the chart from Peter Hirtle of Cornell’s Copyright Center here.
I am writing a narrative to support an application for a building to receive an historic designation. Most of the information can only be found in articles from our local newspaper, and the only access I have to these articles is through my subscription to one of the newspaper websites. What I would like to know is (1) if this narrative is classified as personal, professional or commercial and (2) if I cite only the facts from the article along with the title of the newspaper and publication date, is that information under copyright? Thank you!
I can’t tell you how the site would define the use; you’d need to contact them for that if it isn’t clear from the terms of use (though I suspect it would be considered either personal or at most professional and allowed in either case, given the purpose). However, as to question 2, facts by themselves are not copyrightable at all. You can always use the facts (citing them properly as you intend to) without copyright concern.