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MARC DISCUSSION PAPER NO. 2006-DP04

DATE: June 2, 2006
REVISED:

NAME: Data elements needed to ascertain copyright facts

SOURCE: California Digital Library

SUMMARY: This paper analyzes the information that would be needed in a MARC 21 record to be able to ascertain facts concerning copyright status. This would facilitate the user to make a reasonable judgment about what use is allowed of the resource, and is particularly important in the digital world, where resources are accessed outside the context of the originating archive. It suggests using a single field to contain all copyright information, even if repeating other data somewhere else in the record, because of the complications.

KEYWORDS: Copyright facts; Copyright status; Field 540 (BD); Terms governing use and reproduction note (BD)

RELATED:

STATUS/COMMENTS:

06/02/06 - Made available to the MARC community for discussion.

06/24/06 - Results of the MARC Advisory Committee discussion - The participants felt that a new discussion paper should be written that explores various issues, especially whether MARC records are the best medium to store copyright information. If so, the MARC record should be extensible to accommodate a range of different national copyright laws. The scope of the copyright information should be further explored, such as whether the copyright information should be added to only archival and unpublished materials, or to published works, as well. Participants questioned whether the record could handle complex copyright situations with various kinds of rights held by different persons and bodies. Including copyright facts in the authority and holdings formats was also suggested. The new discussion paper should also include a broader set of examples.


DISCUSSION PAPER NO. 2006-DP04: Data elements needed to ascertain copyright facts

1. BACKGROUND

When users want to make use of a digital resource, they have to know certain facts to assess the copyright status of the work in order to make a reasonable judgment about what use is allowed. The tradition of library cataloging has not included the recording of information relating to the copyright facts of works, except when that information is included for other purposes, such as the date "c2004" representing the copyright date when the publication date is not available. The MARC 21 format has no fields for recording a copyright statement. The note field "Restrictions on Access Note" (MARC 21 field 506) can be used to indicate a variety of access restrictions, either in terms of the contractual arrangement with the donor of an archive or for materials whose access is limited to a certain class of users. The note field "Terms Covering Use and Reproduction" (MARC 21 field 540) can be used to record terms that apply once access has been obtained. Neither of these notes allows the recording of any detailed information about the copyright status of the work. Field 017 (Copyright or Legal Deposit Number) is also available for a copyright registration or legal deposit number, although not all copyrighted works would have such a number.

Determination of copyright status has become more difficult, at least for US audiences, due to changes in the copyright laws. Prior to 1978, the copyright duration for a work was determined from the date that copyright status was sought, either through registration or through the inclusion of a copyright notice on a work. Although unpublished works did not contain copyright notices, some estimation of copyright status could be made from the age of the work itself. Today, copyright duration is based on the life of the creator (that is, it is counts from the date of the creator's death). This is information that cannot be determined from the piece in hand. Instead, the determination of copyright status always requires information outside of the resource itself. In addition, there is no copyright notice required, and works do not have to be registered with the Copyright Office. Since 1978 works are protected by copyright even if they were not registered.

As older and unpublished materials that were previously housed in archives and were not generally accessible are made readably available online, questions about use and reuse of these materials become common. This is especially difficult to resolve as resources are accessed outside the context of the originating archive, and therefore some or all of the information about creation and ownership may be lost. Part of the service that digital libraries can and should provide is to aid users to understand what uses they can make of the materials the library makes available. It is labor intensive to gather information needed to determine copyright status and to encode it in the record. Adding such information to the record would be optional; providing a way to do this allows for recording it when it is available. Often this metadata will be scant; however providing users with what we do know about the copyright status of the work is an essential service.

The US Copyright Office records may be a source for some of this information in the cases where copyright was registered. It is in the process of making its catalog of copyright records available to the public, although this will not be comprehensive in that it depends upon the year of publication/creation as to whether there will likely be a record. In addition, since not all items are registered and because of the changes in the copyright laws, copyright records will not always exist. However the Copyright Office will be an authoritative source of information when the information is available.

2. DISCUSSION

2.1. Data elements needed

Of the data elements needed to support a copyright determination of a work, some are already available in bibliographic records, although the use of these data elements for bibliographic description may not be the same as is needed to describe copyright-related facts. For example cataloging rules may determine whether both the publication and copyright date is included. AACR2 specifies recording the copyright date only when the publication date is unknown and a recent LCRI discontinued the practice of adding the copyright date (indicated by "c" preceding the date) when it is different from the publication date.In the case of copyright renewal, the dates are not the same and both may need to be recorded.

Based on the analysis done by the Rights Management Group of the California Digital Library (see www.cdlib.org/inside/projects/rights/; also www.firstmonday.org/issues/issue10_10/coyle/index.html), the key data elements to support a copyright assessment are:

Most of these have some overlap with the descriptive metadata elements in the current MARC 21 format, although subtle differences may exist in how the data elements are used and under what circumstances.

Other data elements that may be needed are:

There are at least two possible options for incorporating these data elements into the MARC 21 format. The first would be to use current MARC 21 fields where possible, and to put the remaining data elements in the 540 field. The second would be to create a new field (or new subfields in an existing field) that would bring together the copyright-related data elements even though some may be redundantly recorded. However, there are various complications in using existing MARC fields for dual purposes. The source of information for the bibliographic description is the work itself, while for facts needed for assessing copyright, the source may be outside the work. Rather than reuse of bibliographic fields for purposes that they were not intended, only the option of using a single field is discussed in this paper. Appendix A analyzes existing MARC data elements that may be used for copyright information.

Field 017 is not proposed as it is specifically designed for the copyright or legal deposit number along with the assigning agency (e.g., US Copyright Office) and date of the copyright. This field could be a source of information.

2.2. Use of field 540

Field 540 may be appropriate for this data, and it is currently defined as follows:

540 - TERMS GOVERNING USE AND REPRODUCTION NOTE (R)

Terms governing the use of the described materials (e.g., copyrights, film rights, trade rights) after access has been provided.

Indicators

Subfield Codes

2.3. Option 1: Field 540 modified for copyright information

This field could be modified to include additional facts about copyright. See Appendix A for additional description of some of these data elements.

2.3.1. Additional subfields

540 - TERMS GOVERNING USE AND REPRODUCTION NOTE (R)

Terms governing the use of the described materials (e.g., copyrights, film rights, trade rights) after access has been provided.

Indicators

Subfield Codes

2.3.2. Dates

Note that for four dates, there are three elements to each:

This could be accomplished in various ways in the 540 field. One solution would be to have a separate subfield for each of the four date types, using the "u" and "?" conventions to indicate accuracy ("u" for unknown date portions and "?" with uncertain dates):

Another solution would be to code the date and its three aspects in three different subfields:

However, there are a limited number of subfields available and there would need to be a technique for linking the subfields together, so this option is not further explored.

2.4. Option 2: Define a new field for all copyright information

In this option, a specific field and a set of subfields are defined for the copyright data elements. Since field 540 is intended as a note and most of the information is in subfield $a, it may be better to define a new field whose sole purpose is for copyright information, rather than other general use restrictions. All the data elements listed above that would be added to field 540 would then be defined in a new field except perhaps $b (Jurisdiction), $c (Authorization) and $d (Authorized users).

3. QUESTIONS FOR FURTHER DISCUSSION

3.1. Is there a need to include more complete information to determine copyright restrictions in the MARC record or can this be accomplished by other means outside the format?
3.2. Is field 540 the most appropriate for this information? Is there an overlap with field 506?
3.3. Would it be preferable to define an entirely new field for all copyright information instead of using 540 with additional new subfields?
3.4. How should date ranges be formatted? ISO 8601 generally suggests using a slash between the first and last date (although it gives other options). Should the format specify the encoding? ISO 8601 also has no way to handle unknown dates, so there may be a need to specify conventions.
3.5. How should controlled values be handled? For instance, it may be desirable to use controlled terms in the subfield for publication status (published, unpublished, unknown) and in the subfield for copyright status (e.g. under copyright, public domain, unknown). It would be ambiguous to use $2 to specify a controlled list for this information, since there would be two subfields and controlled lists. Is it important that controlled terms be used? If so, can the format specify what the terms should be? Would an indicator value be better to enforce enumerated values?
3.6. How can the source of the information and its currency be recorded? This will be difficult because each subfield could have a different source and different date when determined. Or is it unnecessary?

APPENDIX A

Using current MARC fields for copyright facts Existing MARC 21 fields could be used where possible for the copyright information, putting the remaining data elements in the 540 field. This has the advantage that fuller coding is available in some of the fields for name entries. The disadvantage is that the data elements will be found throughout the record and will need to be recompiled to represent a copyright statement for display or for other purposes. In addition, there may be uses of the existing fields, such as those for dates, for which the needs to record copyright may conflict with the conventions of descriptive cataloging, making it difficult for those to make use of the same fields. Thus, this option is not a desirable approach, although the analysis is given here since these data may be machine manipulated to initially populate a copyright information field that can then be subject to cataloger review.

Creator, personal or corporate

700 or 710, with $e Creator and/or $4 cre or a more specific creator designation if the law requires it.
For personal creators, use 700 $d for the dates of birth and death of the creator.
Note that LC recently decided to add death dates to authority records when available, rather than only to break a conflict, so it may become easier to find the information

Copyright holder

The copyright holder may be the same as the creator, but will not be in many cases. When it is the same as the creator, the relator code could be repeated
700 or 710, with $e Copyright holder and/or $4 cph

Copyright holder contact

The 700 or 710 could be used, with the $u providing the address. This would be an unformatted address, not allowing for separate coding of phone numbers, for example. However, the address would be directly associated with the name, being in the same field. The 270 field (Address) does have detailed subfielding. It would need to be associated with the copyright holder using the relator code, "cph" (which is already available in the field in coded form in $4). Note that copyright holder contact can be the name of an agent that represents the copyright holder for requests, so it is not necessarily the address of the person or organization that will be named as copyright holder. It may be desirable to define a new code in the relator code list for copyright holder contact/agent.
700 or 710, with $4 cph (Copyright holder) $u Affiliation/address
Or
270 $a-$z, with $4 cph (Relator code)

Copyright statement

Note that there is not currently a specific place in the MARC 21 record for a copyright statement, although it could be included, unspecified, in either a general note field or the 540 $a. This would not, however, provide unambiguous coding for the copyright statement. For this reason, it would be best to create a new data element for this information.

Copyright status

There is no current MARC 21 element for this information so a new subfield in field 540 or other new field could be defined. The copyright status element has two purposes: 1) to provide a brief display that informs the user of the status of the work ("under copyright," "public domain"), 2) to be used in searching ("limit to works in the public domain"). For this reason, it would be ideal to have a controlled list of status terms. That list would need to be developed. However, the status changes over time, so inclusion of this information will require frequent updating.

Country of Creation

The country of creation can be derived from the 008 15-17 - Place of publication, production, or execution. There are two other places in the MARC 21 record where this information could already be recorded: in the 540 field subfield $b, with other rights data elements and in a displayable form, and/or as the in the 044 (Country of publication code), which is used when there is more than one country code needed or when a non-MARC code is used. (This will allow for using an ISO 3166 country code if that is all that is available or if desired in addition to the 008/15-17 value.)
540 Terms governing use and reproduction $b Jurisdiction
044 Country of publishing/producing entity code $c ISO country code

Dates

For the purposes of copyright facts, only the year portion of the date is recorded, even for items with more detailed dates.
There is not a distinction now between dates of publication and copyright in the current MARC 21 date fields. It would be difficult to separate these at this time. The date fields in the fixed field 008 and 046 do have "unknown" but it cannot be used together with the date type, although individual dates can be coded as "unknown" using the "u" in the date positions.

MARC 21 Coded Dates:

Date of publication

008 positions 7-10, 11-14
  Code in position 6:
  n - Dates unknown
  s - Single known/probable date
  t - Publication and copyright dates
  Value in 7-14:
  Numeric or "u" (for "unknown")
046 Special coded dates
  $a = m - Multiple dates
  $a = n - Unknown dates
  $a = s - Single known/probable date
  $a = t - Publication and copyright dates

Because there is not enough differentiation in the 008 and 046 dates, it would be preferable to create new date subfields in the field being used for copyright statement.

Publisher

The MARC 21 record already has a place for the name of the publisher. In the case of multiple publishers, there may be ambiguity.
260 $b Publisher

Publication status

Copyright law duration is different for published and unpublished works. The absence of a publisher name in field 260 could be interpreted as an unpublished work, but for better accuracy it would be best to include a way to specify that a work is unpublished. This could be a new subfield in the 540, with a controlled list of values.

Country of Publication

If the 540 can be used to determine the publication status, either through a subfield or an indicator, then the 540 $b subfield for Jurisdiction can be applied either as the place of publication or the place of creation. If a coded value is desired, then the code in 008/15-17 or an ISO country code in field 044$c may be used. However, since copyright is determined by the nation of first publication, it is questionable whether the data in 008/15-17 or 044 will provide sufficient information. In addition, there may be multiple places of publication.
540 Terms governing use and reproduction $b Jurisdiction
008/15-17 Country of publication code
044 Country of publishing/producing entity code $c ISO country code

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