Worth a read: Copyright at the Museum: Using the Publication Doctrine to Free Art and History.
Deborah R. Gerhardt University of North Carolina (UNC) at Chapel Hill - School of Law; University of North Carolina (UNC) at Chapel Hill, September 5, 2014 http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2505041 Peter Hirtle commented on the article on the Archives and Archivists listserv: There is an excellent discussion of the issue in Deborah Gerhardt's recent article, "Copyright at the Museum: Using the Publication Doctrine to Free Art and History" 61 J. Copyright Soc'y U.S.A. 393 (2014), available at SSRN: http://ssrn.com/abstract=2505041. Gerhardt cites the opinion of the leading copyright treatise (Nimmer on Copyright): [p]lacing a work in a public file on or after January 1, 1978, clearly does not constitute an act of publication . . . . Some pre-1978 cases held that filing in a governmental office constitutes a publication. However, the better view was that such filing did not constitute a publication. Gerhardt then looks at the actual cases involving publication. Her discussion of "Works Deposited in Government Archives" begins on p. 431. She confirms that in most cases, the Nimmer conclusion is correct. Her finding: "the public availability of the work in the government archive was not enough to constitute publication." (An aside: in the rest of the article, Gerhardt wants to argue that deposit of unpublished material in a non-governmental archives or library does constitute publication. Hence, by donating material to an archives, copyright owners "published" that material - and abandoned all copyright in the process. It is an argument that I think would be very bad for archives if adopted.)Deb Wythe Brooklyn Museum deborahwy...@hotmail.com
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