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Intellectual property rights

Intellectual property rights are non-physical rights to a work that exist independently from physical custody or legal ownership of the item itself. Researchers and repositories need to be aware of who owns any intellectual property rights to an item before they use or reproduce it in their own work. Archeological objects rarely carry intellectual property rights, but their associated records generally do.

Intellectual property rights include copyright. The Copyright Act of 1976, as amended, grants exclusive rights to creators of a work (e.g., authors, artists, composers), once it is in a fixed form. These rights include reproducing a work, creating derivative works, distributing copies by sale or transfer of ownership, and displaying or performing the work. A work that is not under copyright protection is in the public domain, meaning it is not eligible for copyright protection or that its copyright has expired.

Several factors must be used to determine the copyright status of a work, including the type of work, who created it and under what circumstances, and when. In terms of the type of work, there is no copyright protection for most three-dimensional objects, except sculpture. Relevant to archeology, it does protect documents and manuscripts, graphic designs, drawings, photographs, motion pictures, video tapes, and computer software.

Copyright also protects all creators of works except for U.S. Government employees, who created the work as a responsibility of their job. These works, then, are in the public domain. Federal contractors are also not protected if the signed contract states that the product is a work-for-hire and all copyrights go to the contracting federal agency. If the contract does not have these stipulations, a federal agency may have to obtain permission and pay royalties to a contractor for certain uses of a work since the contractor holds the copyrights.

Finally, copyright protects works for a specific period of time, the duration of which is quite complex. The Copyright Office of the Library of Congress should be consulted for more specific information on the duration of a copyright, but a brief summary of common situations is provided here:

Probably now in the public domain:
  • a work published before 1925 with a copyright symbol or registered with the U.S. Copyright Office;
  • a work published without a copyright symbol or anonymously before Jan. 1, 1978;
  • a work published between 1923 and 1963 with a copyright symbol or registered, but not renewed after 28 years of protection.

If an unpublished work was created on or before Jan. 1, 1978, it is protected for the life of the creator plus 70 years. If the author's death date is not known, 120 years from the creation date.

If a work was published with a copyright symbol or was registered between 1964 and 1977, it received 28 years of protection plus an automatic renewal of 67 years for a total of 95 years.

If a work was created in a fixed form on Jan. 1, 1978 or after, it is protected for the life of the creator plus 70 years. If it has multiple authors, then the life of the last surviving author plus 70 years. If it has corporate authorship, then 95 years from publication date or 120 years from creation date (whichever is shorter.)

There is an exception to copyright that is important for researchers. It is fair use, which is reasonable, limited use of an insignificant portion of a work that does not impinge on the rights of the copyright owner. Fair use is limited copying of a work for private study or research, teaching, commentary, or news reporting. It includes paraphrasing and reusing ideas and facts, but not reproducing large portions of significant text or whole photographs, maps, charts, figures, or the like.

When a researcher finds and wants to use complete works or significant portions of them for a publication or to create reproductions or derivative works, especially those with a market value, s/he must determine the copyright status and seek authorization from the copyright owner. This authorization or permission is often called a license. Copyrights may exist with the author/creator of the work, their sponsoring institution, the government, or the repository that houses the work, usually documented in the accession file. The repository or archive is not always the copyright owner. Sometimes a repository never obtained the copyright to appropriate works, such as the associated records of an archeological project, so the researcher must go to the original creator or to whomever the copyright was officially transferred, such as the creator's heirs. This also holds true for works in a collection for which a repository is the caretaker. If a work was created by a federal employee, such as the results of an archeological project, it is in the public domain and ineligible for copyright protection. Keep in mind, facts and data may always be used without a license.

Many non-federal repositories and museums do have copyright to works of interest to researchers. For example, many repositories limit or prohibit outside photography or reproduction of their materials. They own any images that are available and often charge a fee for their use, either for cost recovery or licensing purposed. Repositories may also have policies governing the ownership of derivative data that comes from analysis and research done on their holdings. A researcher should be aware of repository policies governing these rights as s/he prepares a project budget so that any fees for reproducing or using certain types of works are included. As well, a repository usually requires a statement on what the research will be used for at the beginning of the project, as well as a separate permission to publish before the researcher may reproduce, distribute, exhibit, or produce derivative works from his or her research.

Another possible legal constraint that might apply to researchers working on collections is privacy. This is generally governed by state laws that protect living individuals from intrusion by public disclosure of private information, audio or visual recording of conversations, or photographing, filming, or taping a person or his/her home. Research in a repository may yield audio or video tapes of conversations of history or oral tradition, transcripts, photos, especially nude images, digital files, and motion picture films of great value to the project. However, if the person(s) who is the focus of those materials is still alive, any materials that might impinge on his/her privacy may only be used if there are signed release forms or permission statements by all the original participants involved, or if the researcher obtains those permissions from the original participants involved.

As a final, important note, there is also ongoing debate surrounding intellectual property rights for the culture groups affiliated with repository collections. Many indigenous cultures in the U.S. have different opinions on what is or should be covered by intellectual property rights, particularly the protection of access to and use of specialized indigenous knowledge related to art, music, religion, biological resources, and traditional practices. This is especially problematic for culture groups that restrict their own group members access to certain information based on criteria such as social status, age, and sex. Notably, when this type of information is captured on film, paper, video, or tape recordings, it is protected by copyright. That copyright goes to the person who captured the information, not to the culture group who provided the information. Privacy may come into play, though, if the information expressed and recorded was provided by a currently living person without a signed release form or permission statement. Privacy does not apply to a whole culture.

Some culture groups in the U.S., therefore, believe that limits should be set on providing intangible cultural ideas to non-members of the culture, particularly those involving religion and the sacred. Researchers and repositories should try to respect those concerns, as they do donor restrictions, when conducting their work and making it accessible to scholars and the public. For publicly held collections with sensitive materials, it may be helpful to ask affiliated culture groups to provide a statement of concern about those materials to share with researchers rather than restricting access to those materials.

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