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Re: Copyright Question: Does Making Material Available to the Public Constitute Publication?



Many, many thanks to Chris Densmore for bringing this very interesting
argument to our attention.  It raises a number of interesting issues that
are likely only to be solved if and when someone is willing to be sued.

Chris's post raises two issues.  The first concerns what constitutes
publication:

He wrote:
The Christian Science Church is about to open "The Mary Baker Eddy
Library for the Betterment of Humanity"  which will make the
unpublished manuscripts of Mary Baker Eddy available to the public.
Looking at several articles about the new library published in the
March 2002 issue of the CHRISTIAN SCIENCE JOURNAL, it appears that
the Christian Science Church is assuming that making those
unpublished materials available is equivalent to publication, and
will extend the Church's copyright:

p. 31) "as copyright holder, the Board has the sole right to extend
the copyright on Mrs. Eddy's previously unpublished writings by
making copies of them available to the public before the end of this
calendar yeaqr through publication in print OR BY PLACING THEM IN A
LIBRARY OPEN TO THE PUBLIC. [emphasis added]

p. 23) "... publication can be accomplished either by printing and
distributing books or by making previously unpublished material
available without restriction in a library open to the public."

As I understand it, the writers of the above believe that by opening
previously unavailable material to the public, they will be able to
extend the copyright protection to the year 2047.

I'm not a copyright expert but I don't follow the logic of the above.
Can anyone help clarify this for me?

The Church is referring here to Section 303(a) of Title 17 US Code which
states in part: that if an unpublished work  "is published on or before
December 31, 2002, the term of copyright shall not expire before December
31, 2047."  The question then concerns what constitutes publication.

Section 101 of the Copyright Law defines publication this way:

''Publication'' is the distribution of copies or phonorecords of a work to
the public by sale or other transfer of ownership, or by rental, lease, or
lending. The offering to distribute copies or phonorecords to a group of
persons for purposes of further distribution, public performance, or
public display, constitutes publication. A public performance or display
of a work does not of itself constitute publication.

The question, then, is whether "placing items in a library open to the
public" is the same as the "distribution of copies to the public by sale,
rental, lease, or lending."  As far as I know, no court has suggested the
two are equivalent.  Before the passage of the 1976 copyright act, some
theorists (most notably Ralph Shaw) in order to get around the perpetual
term of copyright for unpublished items argued that placing items in a
library constituted general publication.  As far as I know, however, this
theory was never tested in court.

One troubling recent case might serve as a precedent in support of the
Church's position.  In Hotaling v. Church of Jesus Christ of Latter Day
Saints, the court concluded that including a reference to an illegal copy
of a work in the library's catalog was an offer to distribute the work, and
hence violated the distribution rights of the copyright owner.  Hotaling
might be extended to suggest that including a reference to an unpublished
manuscript in a library catalog is an offer to distribute that copy to the
public, and hence constitutes publication.  And as the definition of
publication above indicates, the distribution right is closely connected to
the definition of publication.

My guess, though, (and remember that I am a non-lawyer, and so my guess
should be taken with lots of grains of salt), is that looking at a
manuscript in a library would constitute display of the work, which does
not constitute publication.  I would be hard-pressed to see how looking at
a manuscript in a library could constitute sale, rental, lease, or lending
of that manuscript.  I have heard of one repository that plans on
publishing this year a microfilm copy of all the unpublished manuscripts in
its collection in order to extend the copyright of the manuscripts to
2047.  This seems like a more reasonable approach.

Chris's second issue concerns access to materials in which you own the
copyright:

Another article claims:

31) "As copyright holder, the church has the legal right of access to
the physical documents it does not own for the purpose of
photocopying."

I've always assumed that the owner of the physical property has the
right to show or not show a document and that the owner of the
intellectual property (the copyright) has no special access to the
physical property.

The Church here may be referring to a district court decision in CCNV v.
Reid.  In that case, CCNV, which owned a sculpture made by Reid, was
ordered to provide access to Reid in order that he could make a
reproduction of that statute.  This case is complicated by disagreement
over who was the copyright owner of the sculpture.

As far as I know, this approach has not been supported in other cases.  I
would be very surprised, therefore, if a court would ever order that
reproductions must be made for the copyright owner.   But this is one for
the courts.

You might look at Joseph Sax's very interesting book on "Playing darts with
a Rembrandt : public and private rights in cultural treasures" for further
discussion of this issue.

Peter Hirtle


---------------------------------------------------------------
Peter B. Hirtle
Director                                pbh6@cornell.edu
Cornell Institute for Digital Collections     607/255-4033 (ph)
2B Kroch Library                                   607/255-9524 (fax)
Cornell University                <http://cidc.library.cornell.edu/>
Ithaca, NY  14853
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