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If the author of a personal letter owns the copyright in the letter but the recipient owns the only copy of the letter, what can the owner of the copy do? What are the rights of the author's heirs?

The owner of the copy cannot publish the letter if it is still protected by copyright because that right belongs to the copyright holder. The recipient may dispose of that copy by donating it to a library or archives or may even sell the letter to a dealer or collector. After the author's death, the heirs own the same rights that the author had: reproduction, distribution, adaptation, performance and display for 70 years after the author's death. Then the work passes into the public domain.

If an author of a work conveys by deed of gift the rights to their work, what does that include? Does the library then own the copyright?

It depends to some extent on the exact wording of the deed of gift. Assume that the donor author says "I transfer to the archives all my rights in my work." This language means that the library owns the copyright. But if the deed of gift says "I transfer the copies of my work as detailed, "then the library does not own the copyright and must seek permission to reproduce the work, etc. The library would own the copy but not the copyright in this instance.

Faculty member publications present particular problems for archival collections. If a library obtains only a photocopy of faculty produced works for deposit in the archives as opposed to a hard copy, may archives researchers make another copy of the photocopy without copyright concern? Suppose that the work is a photocopy of a letter or other miscellaneous document instead?

There are two initial questions that have to be answered assuming that the faculty publication is still under copyright. The first is whether the faculty member owns the copyright in the work or not. If the work is a book, the answer is likely to be yes. If the work is a journal article, the answer is probably no. It depends on whether the author assigned the copyright in the works to the publisher. The second question is how the archival collection acquired the reproduction of the work. Assume that the work is a book and the faculty member owns the copyright. If the reproduction of the work came from the faculty author, then the archival collection is bound by the transfer agreement from the faculty member. If he gave permission for the archives to use the reproduction and make it available to other researchers, including to right to reproduce it, then, clearly, there is no problem in doing so.

But if the work is a journal article for which the faculty member transferred the copyright to the publisher, and if the faculty author or a third party delivered a photocopy or digital copy of the article to the archives, the archives has no reproduction rights. If the library owned a copy of the journal itself, then the library may make copies under the conditions specified in section 108. The photocopy could be used by researchers and it might even be fair use for that researcher to make a copy of the copy. Section 108 does not grant the archives itself the right to make copies from the photocopy, however.

Letters and other unpublished documents present a different situation entirely. Unpublished works are still covered by copyright, but, section 108(b) permits libraries and archives to reproduce unpublished works for purposes such as preservation, security or deposit for research in another library. So, if the archival collection has a photocopy of the unpublished work, how was that reproduction obtained? If from the author, the author's transfer agreement to the library prevails. If it came from another library that holds the original, the assumption is that it was a copy deposited under section 108(b) and that for fair use purposes, a researcher could duplicate the photocopy.

How should a library deal with copying correspondence from its manuscript collection at the request of patrons?

Correspondence should be treated as any other unpublished work. There is no reason for a library to refrain from making a single copy of correspondence at the request of a user who intends to make a fair use of the letter unless the deed of gift requires confidentiality or contains some other restriction. Some archival collections require users to certify that they intend to use the unpublished work for scholarship and research. The library may want to indicate to scholars that it does not hold the copyright and if the user intends to publish the work, she must seek permission from the author of the letter. If the library owns the copyright, then it may give or withhold permission for reproducing a letter in the book the scholar is writing.

 
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