We make our best efforts to assure that RCIN resources are made available while observing the law, in particular copyright law.
- Before we mark certain resources as public domain we must verify whether they constitute unprotected official documents or materials, or that copyright expired. This often requires interpretation of vague legal provisions or identifying facts from distant past. Given a very broad definition of copyrighted work, we must assume that practically everything may be subject to copyright law.
- Statutory user freedoms do not allow us to make copyright works available in the Internet. Their scope is not clear. Before we decide to exercise them we must make sure that the work was ever publicly available in a manner authorized by the copyright owner, which is difficult to determine in case of archival materials.
- Even if there are no restrictions following from copyright law, it does not follow that the material may be freely used. Some of our resources are subject to separate legal restrictions, which we have to resolve separately. Hence, the whole procedure takes much more time.
- We try to obtain consent of copyright owners to make their works available outside the scope of statutory user freedoms. However, the search for copyright owners is also a lengthy procedure, sometimes impossible to complete due to problems in establishing the history of copyright transfers or lack of understanding on the side of copyright owners.
Below, we explain these issues in more detail.
Copyright law protects works, i.e., results of a creative effort bearing individual character. Courts have adopted a very low level of creativity necessary to obtain copyright protection. The risk of legal liability in case of a mistake is high. Therefore, we decided to assume that practically every material that we want to include in RCIN is a copyrighted work.
However, copyright law excludes some resources from protection, regardless of the creativity included in them. These are in particular official documents and materials. Unfortunately, they are not clearly defined, but we try to confirm the official status of RCIN resources that seem to be of such kind. In case of a positive verification and lack of other restrictions (e.g., confidentiality clause), such resources are included in RCIN and marked as public domain, and we do not restrict access to them. But we have to adopt a very cautious approach, since the binding decision whether a given material or document is official can only be issued by a court.
Other materials marked in RCIN as public domain are works no longer subject to copyright (rights expired) or works that were never subject to copyright. According to Polish law, economic copyrights expire after 70 years after author's death. However, there are exception from this rule, which depend on circumstances that sometimes are not possible to identify easily. For example, the 70-year term counts from first publication when rights belong to a person other than the author as a matter of law. Thus, it is necessary to determine how the law regulated these issues on the date when the work was created, which rarely can provide an unambiguous result.
Moreover, public domain works are often available as their contemporary derivatives, as well as critical or scientific editions. If an editor or a publisher of a public domain works creatively modifies them, a new work is created (a derivative work). The derivative is protected and the protection expires after 70 years after the death of the author of the derivative. Also, according to an amendment of copyright law introduced in 2000, publishers of non-creative but scientific or critical editions of public domain works obtain a special neighboring right lasting 30 years from publication (fortunately, this protection applies only to editions published after the date of the amendment). Hence, we cannot automatically assume that each work of a person who died more than 70 years ago can be marked as public domain. In order to verify that we are not holding a contemporary derivative, or a scientific or critical editions we usually have to invest a considerable amount of work, and it does not always lead to a clear conclusion.
We can make available material protected by copyright only within the scope of statutory user freedoms, and any further activity requires consent of copyright owners. Unfortunately, the scope of the statutory user freedom applicable to RCIN is not clear. On the one hand, the law allows “libraries, archives, and schools” to make works available electronically, but only in terminals situated at their premises. On the other hand “scientific and educational institutions” may use works without restriction to terminals. However, it is usually accepted that the scope of statutory user freedoms should be interpreted always to the benefit of the author, narrowly. It follows that we cannot make our resources available on the Internet, unless the copyright owner consents. Some resources are made available in an internal network, not only in terminals, as we consider that the provision regarding scientific and educational institutions cannot result in an empty rule. However, due to liability risk, access to such a network is granted only in cases justified by a research goal of the given institution, and when we are convinced that it will not threaten authors' interests or be contrary to the normal use of the work.
Please note that statutory user freedoms apply only to works that were ever publicly available in a manner authorized by the copyright owner. Many resources that we would like to include in RCIN cannot be considered as such. Some of them are e.g., subject to confidentiality clauses applied on the basis of provisions on classified information. We have to apply to relevant authorities for the removal of such clauses. Some resources are described in a way that leads to uncertainty as to whether they were ever made public in a manner authorized by the copyright owner (e.g., “for internal use”). Finally, some resources are subject to restrictions separate from copyright, such as for example exclusive rights of the State Treasury persisting in the state geodetic and cartographic resource. Until such issues are resolved (which includes the question whether such resources are subject to the PSI access and re-use regime) we have to refrain from including them in RCIN.
We are aware of the fact that our users would like to have the most easy access to RCIN resources in the publicly available Internet. Problems in determining the public domain status of various material, as well as ambiguity of provisions regulating statutory user freedoms make it necessary to seek consent of copyright owners in order to reach this goal (assuming that any non-copyright restrictions are removed as well). We try to obtain such consents, but it is not easy for a variety of reasons. We are not always sure whether it is sufficient to obtain consent of the author (co-authors) or their heirs, since rights might have been transferred to a third party. Apart from authors, independent rights to a material might subsist in the publisher (if some additional creativity was introduced during the publishing process). Not all copyright owners are easy to find, some of them are afraid of the Internet publicity, and those who are willing to give consent often do not understand the need to sign quite complicated documents (a consent that satisfies all requirements resulting from copyright law has to be quite elaborate).
We are trying to overcome the above difficulties while at the same time respecting the will of the copyright owners. We ask for your tolerance, if a given material is not available, or available subject to restrictions. If you have information that may be helpful in determining the legal status of a given material, we kindly ask you to contact us.