Seldom does the beginner ask, "What can I properly do with what I've learned?"

That question doesn't usually occur to us until after we have spent considerable time, effort, and money, and realize we have a substantial investment in our research. It's valuable-but to whom does it belong? More specifically, who can do what with each part of it?

Looking at genealogical research in the abstract, we see that its subject matter has two components-facts, which are impressions about reality that come to us through our senses and are stored in our short-term or long-term memories, and our thoughts and ideas, which give the facts significance. Facts and ideas together constitute knowledge.

Knowledge is also called intellectual property, a term which recognizes that it resides in people's intellects, and that it has real value. Even though intellectual property is intangible, the use of it is regulated both by law and by well-developed ethical principles that apply to scholarly activity.

Use of Facts and Ideas
Once knowledge is expressed outside the mind, both laws and ethical standards regulate its use. A record of someone's own thoughts, made solely as a memory aid, with no intention of communicating it to someone else, belongs to that person, along with the knowledge recorded. Both the record and the knowledge it reflects enjoy legal protection like other property of its owner.

If the record also includes someone else's knowledge that is not generally known to others, that knowledge continues to belong to the original owner, and it remains subject to any restrictions the original owner placed on its further use.

It's not until a person decides to share knowledge with others-the processes of communication, publication, or presentation-that the question arises about ownership of the knowledge. At that point, various laws and ethical standards come into effect which give the original holder some rights and control over the uses that others can make of the knowledge.

Privacy Law Restrictions
The law of privacy is one that every family historian needs to understand. It protects living people from having details of their private lives made public unless they have done something to place themselves in the public eye, such as taking an office or position in which there's a legitimate public interest, or being involved in a crime or accident. The kinds of information protected include the very things we're interested in for family history-age, residence, occupation, relationships, and associations.

Living people who are not already public figures have a right to keep personal information about themselves private, and they can collect legal damages, just as for a physical injury, if anyone violates that right. If your staid and proper elderly aunt was once a burlesque queen, you reveal the fact at your peril unless you have her permission-and preferably in writing, in case there's any question later.

Other privacy laws of recent origin prohibit keepers of certain records, most of them governmental, from releasing personal information. These laws are directed at the record-keepers, and provide penalties if they are violated, but usually don't affect use of the same information obtained from other sources. Records that are coming under such privacy restrictions include birth, marriage, and death registrations for some years after the event, and records relating to adoption, schooling, employment, criminal activity, and health.

Restrictions by Agreement
Facts can't belong to anyone. However, someone who has exclusive knowledge of a fact can set conditions and restrictions on its future use. If your dear old aunt confided in you, with the condition, "but don't tell anyone," that Grandpa died of a heart attack in a house of ill repute, you have gained the same knowledge she had, but if you share it with anyone else, you have violated your agreed terms, and she may legally collect damages as for any other breach of contract.

Similarly, someone who has assembled a collection of facts and organized it in some useful way can place restrictions on further use of the facts as a condition of allowing others to use the collection. A typical example is a mailing list. People who pay to use addresses from commercial mailing lists usually have to agree that they will not keep copies of the addresses, nor make any further use of them. Subscribers to online database services are usually required to accept strict conditions on the use they may make of data they retrieve. Such agreements are binding on those who make them, and can be enforced by law, but they don't affect people who may have come by the information by accident.

Copyright Law Restrictions
Copyright is among the best-known forms of intellectual property protection, and family historians need to be aware of its effects. While it can protect our own work, it also limits the use we can make of others' work. To encourage authors to make their works available to the public, copyright law gives authors the exclusive right, over a number of years, to copy, publish, present, or display the work; to make derivative works, such as translations or condensations; or to assign those rights to others as they see fit.

The period of copyright protection for works created since 1978 is the life of the author plus fifty years. For earlier works, the initial period was twenty-eight years, and it could formerly be extended for a second twenty-eight years. The renewal period has now been increased to forty-seven years, providing a total copyright term of seventy-five years, if the copyright is renewed before the end of the initial twenty-eight-year term. After the copyright has expired, the work is in the public domain, and can be freely used by anyone. Before that, you need permission to quote extracts. [Editor's Note: Since the publication of this article in Jan 1998, the Sonny Bono Copyright Term Extension Act, was signed into law (October 27, 1998). This law has amended the provisions concerning duration of copyright protection. Details are available at the U.S. Copyright Office.]

It is important to understand that copyright does not protect the use of facts or ideas, but only the originality with which they are expressed in a particular work. The form of the expression can be a written or printed document, a dramatic or musical composition, a graphic image in two or three dimensions, or an electronic recording, among other forms.

Under current U.S. copyright law, copyright in a work exists from the time it is reduced to a form that can be perceived by the senses, even before it is shared with anyone else. The writer of a letter or an e-mail message has a copyright on that particular expression of an idea as soon as it is written; this copyright lasts the rest of the author's life, and for fifty years thereafter. During that period, it is a violation of the author's rights to pass the writing on to someone else without permission.

However, there's no violation of the copyright if another person takes the same idea and expresses it in another form, so long as it is sufficiently different from the first work that it represents an original expression in its own right.

No matter how much time and effort has gone into compiling a work, there must also be some originality in its arrangement or expression for copyright protection to apply. An alphabetical index of names, for example, without some further innovative or creative features, would probably not qualify.

Other Legal Restrictions
Patents and trademarks are other forms of legal protection for intellectual property protection, although they have limited application to family history. Patents protect useful inventions-practical ideas that may have value in the marketplace-and give the inventor exclusive use of the idea for a limited period, in exchange for making it public. Trademarks identify the providers of products or services, and are protected to prevent frauds on the public.

Ethical Concerns
Copyright law does not protect an author against having his facts and ideas used by someone else without credit, so long as the person who appropriates them uses different words to express them. But while it may be legal, it's not right, as most of us learned in high school composition. To take the ideas of another without credit and present them as your own is called plagiarism, and is perhaps the most serious offense a person can commit in the world of intellectual or scholarly work.

In an academic setting, plagiarism is grounds for dismissal of a faculty member or expulsion of a student, whatever the motivation may have been. In my own undergraduate days, it happened to a quixotic older student, a returning veteran of the Second World War who was in his early thirties and close to graduation. He had taken an essay by an early twentieth-century English writer of some note, given it a new title with himself as author, and submitted it to the undergraduate literary magazine. It went through the usual review by student editors and English faculty and was published as his. An alert reader quickly brought its true author to the attention of university authorities. At his disciplinary hearing, the offending student said he had submitted the article as his own only to demonstrate that people in the English department were not well-read. He was expelled anyway.

In the federal government, the current official standards on research misconduct require proof of intent before an offense can be punished as misconduct. You probably would not lose a research grant or be dismissed from employment for plagiarism unless it was proved that you deliberately intended to appropriate someone else's work as your own—as opposed, say, to having carelessly failed to properly attribute it. But plagiarism is primarily a matter of ethics, whatever the legal findings, and your reputation among other researchers would not likely survive, even if you kept your job.

In short, it is plagiarism, a major ethical offense, to use the ideas and research results of others without attributing them to the original researchers. It is also a major ethical offense to present them deceptively or inaccurately, even if properly attributed.

Exceptions to Copyright Restrictions
Generally, the copyright law prohibits any use whatever of a copyrighted work, whether published or not, without the copyright owner's permission. However, the law does carve out a few limited exceptions in the interest of encouraging scholarship.

The principal one, widely used by family historians, is the "fair use" exception, which allows some limited use of copyrighted works without permission. Under it, an individual can make copies from a copyrighted work for personal use, or a teacher for classroom use. The limits of "fair use" aren't defined, but factors that help determine them include the number of copies, how large a portion of the work is copied, whether there is a charge for them, and whether the copying substitutes for purchase of the published work. You can also use limited quotations from a copyrighted work in the context of scholarly or critical comment on them.

Libraries and archives enjoy a somewhat broader scope under the "fair use" exception. They can, for example, copy entire books or articles for interlibrary loan or to replace out-of-print works.

However, making copies is hardly fair when it lowers the demand for a readily available publication, depriving the publisher of income and the author of royalties. Would you want this to happen to your own book or pamphlet?

The Test
If all the information you plan to share came from your own research into public records, you can share it without fear of violating someone else's rights. But if some of your information came from people, publications, or privately owned documents, take a second look-there may be legal or ethical restrictions or conditions on its use.

Donn Devine, a genealogical consultant from Wilmington, Delaware, is also an attorney and archivist for the Catholic Diocese of Wilmington. A contributor to numerous genealogical publications, he holds Certified Genealogist and Certified Genealogical Instructor designations from the Board for Certification of Genealogists, of which he is also a trustee. He is a director of the National Genealogical Society and chairs its Standards Committee.