But there were a few things the doomsayers did not know. In 1990 several of America’s largest newspapers - including The Washington Post and The New York Times - had already been online for well for over a decade. Independently and through the auspices of services such as Dow Jones News/Retrieval Service and Lexis/Nexis, they paved the way for print media to move online.

Those early newspaper databases had little of the sophistication of today’s online archives. They consisted largely of abstracts, plus a few recent stories - all in plain text files. There were no ads or graphics, and search capabilities were limited. Most content was deleted after a day or two, though a few archives held selected stories going back several years. Tentative as it was, this presence firmly established newspapers as a part of the Web.

It also established a beachhead for copyright protection in the new medium. If publishers were to make available trillions of words of copyrighted text in an easy-to-copy format, they had to be prepared to defend copyrights, lest the material in question drift into the public domain.

Starting point
Existing statutory copyright law and common law precedent involving photocopying provided a starting point.

But the Internet can be a publisher’s nightmare. No matter what you publish - books, newspapers, music, or magazines - once you place your product online it is at the mercy of millions of personal computer users. With a couple of mouse clicks, anyone can make a copy of a single page or an entire volume, and distribute it to as many people as they wish.

The problem is complicated by the fact that most Internet users and readers in general have little or no knowledge of copyright. The result is innocent and not-so-innocent copying and distribution.

Sometimes publishers lose revenue, as when clipping services pick up stories and distribute them to clients in a fashion that is beyond fair use as defined by copyright law (see box).

No current provisions
The question of protection from online copyright infringement thus arises. Currently, there are no special copyright provisions extending statutory copyright protection to online data collections.

Generally, statutory copyright begins with filing an application for copyright registration and posting copyright notices, followed by vigilance in identifying and following up on instances of copyright infringement.

The only elements that have changed are the number of people who have access to your material and the ease of making copies.

Fortunately, the same technology that makes it easy to steal copyrighted material also helps watchful publishers track down instances of copyright infringement.

This is fine for material that is protected by copyright. But what happens when you start putting older newspapers online? Without copyright protection, are you giving away your historic archives?

Enemy one: public domain
Copyright law is complex when it comes to determining when a published work enters the public domain, but generally a copyright expires after 70 years, which means that newspapers published before 1935 are in the public domain. (Editor’s note: The copyright term for a work published in the United States is 70 years after the death of the author, or if it is the work of corporate authorship, the shorter of 95 years from publication, or 120 years from creation.)

Before the Web, this was of little concern to newspaper publishers because relatively few people looked at newspaper archives. Those who did were unlikely to be distributing copies.

Going online changes everything. If you simply publish your archives on a Web site, they become vulnerable to public domain and you could lose control. Anyone who wishes may take your stories and graphics and put them to any use - including for-profit use - without paying.

Protecting assets
It’s as if you’ve opened the door to your morgue and invited people to come in and take whatever they want. And, if you foot the bill for putting your paper online, you’re paying for the privilege of giving away what is potentially valuable material.

In the face of these potential threats, vendors such as SmallTownPapers Inc. have rolled out software designed to help publishers protect the digitized content they post online.
Seattle-based SmallTownPapers, founded in 2000, targets its services to small and medium-sized publishers that might not have the technological resources at hand to put their archives online.

The supplier collects customers’ archived copies, scans them, builds a searchable database and places the images online at its Web site.

When SmallTownPapers puts an archive online, however, it also performs another beneficial service: It gives those assets a new layer of protection, thanks to something called compilation copyright.

In a basic sense, it is a copyright that protects multiple individual works as a group. It is also a means to protect out-of-copyright material.

How it works
The United States Copyright Office defines a compilation as “a work formed by the collection and assembling of pre-existing materials or of data that are selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original work of authorship. The term ‘compilation’ includes collective works.”

Examples of compilations might include a collection of short stories by Charles Dickens (all of whose work is in the public domain), a collection of essays, or the collective individual works in an issue of a magazine or a newspaper. An online newspaper database is likewise a compilation, consisting of a collection of newspaper stories and graphics.
Thus, it is protected by compilation copyright - in European nations as well as the United States and Canada.

Fair use in publishing
Section 107 of the United States Copyright Law defines “fair use” in general as the use of copyrighted material “for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research.”

However, using a work for educational purposes does not automatically make for a fair use of the work. Recent litigation has found that copying a work in its entirety rather than buying the book or journal is not a fair use, even if it is copied for educational purposes. In another case, distributing copies of journal articles to many people in an organization when only one copy of the journal was purchased was held to be an infringing act.

Oxford, Ohio-based consultant Michael A. Banks has been writing about Internet topics for more than 20 years and has written for newspapers in the United States, Australia and Japan. He is also the author of The eBay Survival Guide. He can be reached at mynewbook@aol.com.




SmallTown's beginnings
Newspapers & Technology – December 2005

SmallTownPapers Inc. founder Paul Jeffko designed SmallTownPapers specifically for smaller papers that aren’t online. A commercial printer who once worked for a small-town newspaper in Washington state, Jeffko was introduced to digitizing and OCR software in the 1990s when a customer wanted him to produce e-books.

“I knew from working at a newspaper myself that, depending on their age, archived editions can be delicate,” Jeffko says. “Often there is only one copy remaining of each edition and retrieving an article is difficult. I wanted to provide a service to small town publishers that would preserve the valuable archive and give readers and researchers online access never before possible.”

Jeffko estimates that only 10 percent of the pages his company is scanning have ever been recorded on microfilm by publishers.
Rather than working exclusively with microfilmed papers, SmallTownPapers is taking on the tougher job of digitizing original pages archived in bound volumes. Jeffko maintains that the quality of the images - and thus the text created by OCR software - is superior to what is obtained from microfilm.

Currently, SmallTownPapers archives more than 120 newspapers, ranging from the 500-subscriber Trammel Trace Tribune in Tatum, Texas, to the 29,000-reader Tribune in Deer Park, Wash. The papers’ archives span from last week to as far back as 1887.
Jeffko wants to push that date back even further, to 1820, as well as add dozens of defunct titles.

He also wants to expand the archives to include papers from all 50 states and increase SmallTownPapers’ datatabase to more than 20 million pages.

* * *

About SmallTownPapers SmallTownPapers is an online gateway to newspapers from small town America - past and present. Working with publishers from across the country, the company digitally scans current and archived newspapers and then provides online access. Through the SmallTownPapers website, the newspaper archives can be searched by keyword or phrase and viewed as originally printed. SmallTownPapers, Inc. is based in Seattle, WA. For more information visit www.smalltownpapers.com.