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Many people are, or have been, confused by the T&C's of the online content providers regarding copyright and sharing. Some of these seem excessively stringent.

This question relates specifically to what can be copied (and so later shared) from a site without breaking recognised copyright law. For instance, most sites allow you to save a copy of an image, despite them usually having copyright notices embedded within them. What about transcriptions? I know that an indexed database is subject to copyright separate from the source of the transcribed data. So, is making your own transcription from a copyrighted image OK, but copying the provider's transcription is not?

I have written some views on this myself at Derived Creations (currently section 13.2.1) but I am after a more definitive answer about the legality, especially considering different countries.

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My concern with the question is that the limiting factor in most cases (in my non-professional opinion!) is not copyright but the Ts and Cs in the "contract". Quite difficult to split them since the justification behind both is about intellectual effort. But I personally do get a touch fed up with people who have worked out that a 200y document can't be in copyright and therefore "Company X can't stop me putting it on my web-site". Yes they can - read the contract you signed up to! And as I'm sure you agree - it's not copyright that stops the publishing. –  AdrianB38 Dec 12 '12 at 17:05
    
Yes, there are certainly two aspects to it, although the fact that the provider owns some of the copyright (not just the Crown in the UK case) makes it difficult to separate the issues entirely –  ACProctor Dec 12 '12 at 18:18
    
There is a great series of posts analysing Terms of Use (from a USA perspective) at The Legal Genealogist. –  ColeValleyGirl Dec 13 '12 at 17:41
    
I would go a little further than to say there are two aspects to it--one involves copyright law, the other contract law. I think they are two different things. –  GeneJ Dec 14 '12 at 21:10
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The simple answer is that there is no simple answer, because this is a very complicated area, often with no clear answers, and where any answer will likely vary from one jurisdiction to another.

The first question is whether there is any copyright in the original document, which typically means assessing whether there is anything original or creative about it or whether it is just a set of facts. Some jurisdictions may allow some form of sweat of the brow based copyright claim however, even for largely fact based documents.

Then you have to consider whether there is a new copyright in the image, which is an area with little good case law to provide guidance. The commonly quoted case is Bridgeman v Corel but that are a lot of issues with that case, not least that it was decided by a US judge but based on his interpretation of UK law, an interpretation that I understand UK lawyers often disagree with. On appeal it was decided that the judgement should have been decided using US law, but was upheld on that basis, so in the US it may be hard to argue for new rights in a photographic reproduction.

Then there is the issue of working our when each copyright may, or may not, have expired. Not too hard for Crown Copyright in the UK but much harder for documents created by individuals or corporations.

The issue of an indexed database that you refer to is mostly only an issue in the EU which has the concept of Database Rights and in the US is unlikely to apply, following the doctrine of Feist v Rural, at least for a simple alphabetic arrangement.

Of course if you are downloading the image from a commercial site then you may well be restricted beyond any copyright restriction by the contractual terms you agreed to when signing up.

Finally, I Am Not A Laywer, so take everything I say as worth exactly what you paid for it...

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Thanks for the helpful response Tom. Re: what we sign up for, this is tough because the wording often seems to preclude reasonable collaborative research ('sharing' being an essential element of genealogy). However, not accepting the T&C of a provider is simply not an option for the majority of us. Are you aware of any legal action taken by a provider over an individual doing research for their extended family, or copying their transcriptions? –  ACProctor Dec 12 '12 at 11:41
    
I'm not aware of any such cases no, and I suspect it would be unlikely - far more likely would be action against somebody attempting to re-aggregate such data or offer some sort of exchange I would guess. –  TomH Dec 12 '12 at 11:51
    
I suspect that any action over breaking Ts & Cs is more likely to be simply cancellation of membership (and non-acceptance of any new membership with the same email address). Nobody would ever hear of that, probably. Certainly when BrightSolid did the 1911 census for TNA, there were stories that they were keeping an eye open in the mailing lists for any requests for people to do look-ups on the 1911. That would be do-able - a trawl every once in a while looking for references to the text "1911" and ("lookup" or "look-up"). –  AdrianB38 Dec 12 '12 at 16:38
    
Re "the wording often seems to preclude reasonable collaborative research". I think one issue is that it gets quite difficult to define what is acceptable, hence it's even more difficult to write it out. I think you are probably on safe ground sharing information - i.e. the extracted evidence - with your personal contacts - e.g. "Fred was born in the parish of X on date Y". What's not acceptable would be sharing the image of the parish register, or supplying any extracted evidence to anyone who asks. But .... usual caveat! –  AdrianB38 Dec 12 '12 at 16:54
    
AdrianB38, the genealogical world is full of people asking for help finding ancestors in the census. Making a business out of it is one thing, but help & assistance (through sites like this and others) is a different matter. I have helped with such requests on several occasions. Ironically, the reason the ancestor was difficult to find was often because of transcription errors, which I duely report to my main provider, and so they're benefitting indirectly. P.S. "lookup" is a valid word. I've already undone someone's edit on a post of mine because they changed it to "look up". –  ACProctor Dec 12 '12 at 18:21
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