EDITOR'S NOTE: See also "Works Created On or After Jan. 1, 1978."

Have you created a Web page of genealogical material? Many people have. After all, it’s easy enough to do. A number of products are available at computer stores and through mail order catalogs that can help individuals create Web pages with little understanding of the Internet and HTML language.

If you have created a Web page, you have become a publisher—an electronic publisher. But very few individuals who are publishing their information on the Internet understand the intricacies of copyright laws. Even before electronic publishing came into play, very few people understood how copyright laws affected their day-to-day genealogical postings. The Internet has made the problems of plagiarism and copyright infringement more likely to occur unintentionally.

There are a number of commonly-used reasons why the use of copyrighted material appears to be perfectly acceptable among genealogists. The most common ones include:

• I’m not charging money for my research.
  
• I’m using facts, and they can’t be copyrighted.
  
• I’m using information about my family, so I’m entitled to it.

These are the reasons given for every type of genealogical information incorporated into another’s research. Now, the growth of genealogy on the Internet has brought a new crop of responses, such as: “It’s on the Internet, so it’s free” or “There isn’t a copyright notice on it.” Although it appears to be ambiguous, there are certainly ways to compile a family history without being guilty of copyright infringement or plagiarism.

I recently wrote a short article on this subject for an e-mail newsletter and was surprised by the number of e-mail messages I received in which readers thanked me for the information they had read. Most of them mentioned how little had been written on Internet copyright. Actually there is quite a bit written, just not in genealogical circles. Perhaps this is because genealogists don’t want to confront the subject head on—it’s a difficult one to deal with.

What Is Copyright?
Many of those who may be guilty of copyright infringement probably don’t fully understand what copyright entails. Copyright is designed to protect, for a limited time, the creativity and original works of authors, songwriters, painters, photographers, and others. By original works I mean that it cannot be derived from another work—it must be new and not previously expressed. The premise is that if artists don’t have a way to protect their work, they will be less likely to put the energy and effort into the creation. With copyrights, authors, songwriters, painters, and photographers can safely display their work without fear of someone else taking it and calling it their own.

It is true that facts are not copyrightable, but genealogists are using more than the facts, often without knowing it. The basic names, dates, and places we need to continue to push back our ancestral lines are the facts. Family stories, details about family and ethnic traditions, and basic organization of the genealogical work are creative arrangements of the facts and are therefore covered by copyright.

For example, if a researcher spends time compiling a family history that details four generations and incorporates family stories, and then puts it on his or her Web site or sends it to someone by e-mail, the researcher has arranged the facts and compiled them into an original format. The compilation is covered under copyright laws.

Similarly, genealogy societies spend a great deal of time, effort, and expense compiling useful books of cemetery inscriptions, census indexes, and vital record indexes. While it is true that these volumes have facts in them, they are really compilations of those facts. Decisions were made regarding how to format the facts into the final product. If a researcher takes the information as it appeared in the book and places it on a Web site, it becomes an infringement of the society’s copyright. The facts were not copyrighted, but the overall appearance and formatting of the information was part of a compilation copyright.

Few people think to put a copyright notice on their Web pages, but this does not negate their copyright. As of 1989, any published original work is covered under the copyright laws whether it has a copyright statement or not. This is considered part of the standardized copyright laws that came out of the Berne copyright convention. For those of you who want to include a copyright statement, follow this legally recognized form:

“Copyright 2000 by John Doe” or “©2000 by John Doe.”

What Is Public Domain?
Recently, a fellow genealogical researcher and author discovered that an article she had written had been included on another person’s Web page. The problem wasn’t so much that the article appeared there, but that the individual had deleted all the information that alluded to the author and the original place of publication. While this also becomes a case of plagiarism, the individual likely didn’t understand copyright laws and what falls under public domain according to those laws.

When the individual was asked to remove the article from his site, he responded by telling the author that the information was in the public domain and, since he hadn’t charged money, it wasn’t causing any harm. He completely misunderstood the concept of public domain. Simply because something is on the Internet does not put it in the public domain. This is a major misunderstanding for many individuals. They incorrectly equate “free” with “public domain.”

Public domain covers those works that were once copyrighted but have since expired. Remember that the copyright is intended to protect only for a limited time. Until recently, copyrights protected any work prior to 1928 (see sidebar). Once a copyright has expired, the work comes into the public domain. This is how publishers can legally reprint books that were originally published in the 1800s. Remember, freely available via the Internet does not necessarily mean it is in the public domain. Only those works that state plainly that they may be freely used and copied are public domain on the Internet.

Contemporary works placed on the Internet are covered by the same copyright laws. In fact, because they were published after 1976 they are covered by the most recent revisions of the copyright law.

What Is Fair Use?
Many genealogists believe that, because they have only used a small portion of copyrighted information, they qualify under the “fair use” provision of the copyright law. Unfortunately, in most cases the fair use clause does not apply to how genealogists are using the information.

The fair use clause was designed for someone doing a commentary, parody, or review on a particular work. The confusion may arise from the copyright notices at photocopy machines in libraries. In order for the use of copyrighted information to be covered by the fair use clause, it should be held up to the following standards:

1. Is the purpose of the work commercial?
2. What is the nature of the work?
3. How much of the copyrighted work was used in relation to the whole work?
4. What is the effect of your use on the commercial value of the copyrighted work?

These are the standards by which a lawyer would determine if there has been a copyright infringement.

Number three above is one of the hardest issues to deal with. There is no magic number. You will not see anything that tells you that using one percent of a work is legal. There is nothing that says one paragraph of a book is acceptable. You will have to honestly determine if you are indeed using a “fair use” amount and have properly attributed it.

When borrowing a small excerpt, it should always be attributed to the original author and work. Usually, including the excerpt in quotation marks and providing proper attribution following the quote is acceptable.

Finally, remember that for every ancestor we are searching for, the potential number of descendants quickly becomes staggering. If the person is your ancestor, there is a good chance he or she can also be claimed as a relative by at least another thousand people. Unless a distant relative has used some verbatim family story or picture that you have posted to your own Web site, you really cannot claim copyright infringement. No one can own the ancestors and their names, dates, and other genealogical information.

Whether genealogists want to admit it or not, copyrights directly affect all of us. They affect the resources we use, how we incorporate the information into our own research, and how we publish our research. A proper understanding of copyright regulations and how to stay legal will benefit not only you as a researcher, writer, and Internet publisher, but also anyone else using the Internet to gather that “free” information.

Rhonda R. McClure is a data manager of GEnie’s Genealogy Roundtable and a contributing editor for American Genealogy Magazine.