It's interesting that you mention things that, to my way of viewing
copyrights, do not precisely square with such rights, making it
difficult to know which rights you believe were licensed by you and
which not.
You say authorized "microfilming," don't remember ever authorizing
"digital distribution," but you did not assign "digital rights."
First, there is no "exclusive right of microfilming" in the Copyright
Act, but microfilming may infringe the reproduction right if not
licensed. If you licensed microfilming, there is a world of difference
between (1) "A licensed B the right to reproduce A's work onto one
copy of microfilm" and (2) "B says it wants to make a microfilm
reproduction, and, at a time when everyone knew about the Internet and
digital files, gets A to license to B its reproduction right in the
work without limitation." If B subsequently decides to reproduce a
copy onto a server, it will be in a much stronger position under the
first set of facts. The devil lurks in between, such as whether the
parties intended the license to be limited to microfilm, inclusive of
all reproduction media known at the time, and so on.
Second, there is no "exclusive right of digital distribution."
Impossible. The right of distribution in the Copyright is the right to
distribute "copies" and "phonorecords" by transfer of ownership or
possession of those copies or phonorecords, both of which are defined
as tangible media. You may, of course, distribute a digital copy in
the sense of DVDs and CDs being tangible media onto which the work is
reproduced in digital form. But if by "digital distribution" you mean
making a digital reproduction on a server available for downloading
(i.e. reproduction onto a local medium), then it is he exclusive right
to reproduction that is infringed, and not the exclusive right of
distribution. Placing a copy on a server is one reproduction, and if
the public is invited to make reproductions from it, there may also be
secondary liability for any infringing reproductions made by
downloading.
Similarly, if the copy on the server may be viewed, such as a
reproduction in html format that can be viewed using a web browser,
the exclusive right to display the work publicly may be infringed, but
not the exclusive right of reproduction.
Finally, you mention not having assigned "digital rights." Again,
there are no exclusive "digital rights" in the Copyright Act.
I suggest that you look at the six rights listed in Section 106 of the
Copyright Act while holding a copy of the license that gave them the
right to make a reproduction onto microfilm, and see if anything they
did was not covered by that license and falls within one of the
exclusive rights granted to you in the Copyright Act. (Given the
nature of this -- a thesis, presumably in text, I suspect that you can
narrow it down to one of three rights: The right to reproduce your
thesis into copies (paper, microfilm, computer hard drives), the right
to distribute the copies (e.g., paper, microfilm, computer hard
drives), and the right to display the work publicly (e.g., by
displaying it over the Internet).
Keep it simple. Most of the thorny questions and bad law I have seen
in the digital age was because lawyers and judges thought the word
"digital" meant that the 1976 Act could not possibly apply in the same
way it always has.
Good luck.
John
_____________
John T. Mitchell
http://interactionlaw.com
On Mar 17, 2009, at 4:39 PM, Bob Holley wrote:
I'm posing this more out of intellectual curiosity rather than as an
action
item, but I think that Proquest may be using my dissertation illegally
according to the Tasini decision. I hold the copyright to my
dissertation
and authorized its microfilming, but I certainly don't remember ever
authorizing its digital distribution. I know that ERIC asked me for
permission when this service went digital, but I don't think that
Proquest
or Dissertation Abstracts ever did. In fact, I was surprised to
discover
that a digital copy was available when I searched for it out of
curiosity.
If I'm correct, according to the Tasini decision, making a digital
copy
requires a separate authorization. Again, out of curiosity, if I am
correct
that I never assigned digital rights, what options would be open to
me to
require a takedown or to sue for copyright infringement?
Bob
Robert P. Holley
Professor, Library & Information Science Program
Wayne State University
Detroit, MI 48202
313-577-4021 (phone)
313-577-7563 (fax)
<mailto:aa3805@xxxxxxxxx> aa3805@xxxxxxxxx (email)