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Copyrighting Genealogical Information

by Steve Paul Johnson, September 15, 1999

With access to the Internet, people today are publishing creative works more than ever.  Genealogy websites are springing up everywhere.  Can copyright protection extend to genealogical information?

Lately I have noticed much discussion about copyright protection for genealogical information.  Someone creates a website of their family history, publishes on the Internet, and someone else "steals" the information and publishes it on their website.  People get upset after spending so many months and years to collect and validate the information, and then many hours to create the webpages, only to have someone take the information and publish it elsewhere.

I can certainly understand the frustration.  But what protections do the copyright laws provide?  Well, there's a lot of protection, but only for specific things.

In general, copyright protection extends to "original works".  That is, anything you create, is automatically protected as soon as you complete the work, and present the work in a fixed format.  A "fixed format" is anything that presents the work in physical form.  That is, if you create a work, but is stored only in your brain, it is not protected.

The operative word in the above paragraph is "original".  If it does not already exist, it is original.  If you create a work that is derived from an existing work, it is not original, and you'd be violating someone else's copyright protection.  For example, if you published your own sequel to Star Wars, you'd be violating George Lucas's copyright.

Copyright protection does not extend to factual information.  You cannot publish a fact, and then claim copyright protection of that fact.  This is because facts are not "original" works.  No one creates a fact.  It occurs and exists on its own.  It is public information.  For example, the fact that one plus one equals two is not an original work.  The fact that the United States declared its independence in 1776 is not an original work.  The fact that Elvis Presley died in 1977 is not an original work.

However, any book that I write which contains these facts is protected.  That is, the "book" is protected, not the "facts".  The book is the original work, which includes the layout of the book, the format of the pages, and any thoughts I write down.  The presentation of the facts is protected, but not the facts themselves.

Genealogical information is factual information, and is not protected under copyright law.  My birthdate is factual information.  The burial location of my grandfather is factual information.  The maiden name of my grandmother is factual information.  If I created a webpage that contained these facts, and nothing more, only the webpage is protected.  Not the facts.  If I added any additional writings, ideas, comments, or anything else I create, they would be protected, but not the facts.

The United States Copyright Laws are codified under Title 17 of the United States Code.  Chapter 1, section 102 defines what is and what is not protected:

102. Subject matter of copyright: In general

(a) Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. Works of authorship include the following categories:

(1) literary works;
(2) musical works, including any accompanying words;
(3) dramatic works, including any accompanying music;
(4) pantomimes and choreographic works;
(5) pictorial, graphic, and sculptural works;
(6) motion pictures and other audiovisual works;
(7) sound recordings; and
(8) architectural works.
12

(b) In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.

Notice in paragraph (a) that the word "original" was used.

The Copyright Office has published a FAQ (frequently asked questions) concerning copyright protection.  FAQ #1 states:

1. What does copyright protect?

Copyright, a form of intellectual property law, protects original works of authorship including literary, dramatic, musical, and artistic works such as poetry, novels, movies, songs, computer software and architecture.  Copyright does not protect facts, ideas, systems, or methods of operation, although it may protect the way these things are expressed.  See Circular 1, section What Works Are Protected.

Note the second sentence which says that facts are not protected, however  the way these facts are presented may be protected.

So what does this mean to us genealogists?  Well, it means that anyone can lift the genealogical information off of our websites, and publish it elsewhere, without consequence.  The information may even be sold, and we couldn't do anything about it.  What may be protected is the presentation of that information, and any other ideas, opinions, or fiction we create.

But you say, "I've seen so many websites that publish copyright statements forbidding anyone to republish the information contained within it."  Well, those people are not correct.  Their webpages are copyrighted, but not any factual information contained within it.  What if someone published your  mother's birthdate, and then included a statement that no one else could use that information?  Come on, please!

The USGenWeb Archives includes a statement on every one of its text files that says that anyone can use the information, as long as their notice remains with the information, and as long as the information is not used for profit.  That's got to be either one of the most misguided statements, or the USGenWeb is unaware of the copyright protections.  No where do the copyright laws prevent anyone from using factual information for profit, and nor does the USGenWeb have any right to enforce such restriction.

But none of us should feel down on this.  It is good that facts are free.  What if facts could be exclusively owned?  We'd all be stuck in lawsuits.  What if someone owned the fact that the United States declared its independence in 1776?  No one could make that statement without obtaining permission from the owner.  What if someone owned the fact that one plus one equals two?  Just think of all the things that could be considered derivative works on that single principle alone!

Imagine if someone asked you for directions on how to get to the airport.  You pull out your road map, and then give the person directions.  Then, the publisher of the road map sues you because they lost out on a potential sale!  Directions to the airport is factual information.  The roadmap is the presentation of that information.

Because facts are free, we are all able to create works, and create works that compete against each other.  Yes, it is frustrating that all the labor you spent to collect factual information can be freely republished by someone else.  But then, I always believed that genealogical information should remain free for use by anyone, without restriction.  That's why today, we are able to use census records, cemetery records, vital statistics, and all the other genealogical records.

For additional information, please visit the website of the United States Copyright Office.  Please also visit Michael Goad's website, "U.S. Copyright and Genealogy".

- Steve Paul Johnson [steve@cleardigitalmedia.com]

Steve is the editor of The Cemetery Column, and is the webmaster of Cemetery Records Online.

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