Skip to Main Content
It looks like you're using Internet Explorer 11 or older. This website works best with modern browsers such as the latest versions of Chrome, Firefox, Safari, and Edge. If you continue with this browser, you may see unexpected results.

UC Berkeley’s library buildings are open. Here’s what you need to know.

Copyright & Digital Projects: Step 3: Address Non-Copyright Law & Policy Concerns

Creating and publishing a digital project? Discover a workflow for answering copyright and other law & policy-related digital publishing questions.

Step 3: Address Non-Copyright Policy & Legal Concerns

Step 3: Address non-copyright law & policy concerns

⇒ Non-Copyright Policy Concerns

  • There may be other law and policy considerations you'll need to make about the third-party content you include in your scholarship. These would include such questions related to human subject research methodology, issues of indigenous knowledge, and more. Likely you have conferred with your academic advisors about research and publishing ethics, which are beyond the scope of this guide. 
  • What this guide does address, though, are permissions questions about third party content that may, at first, seem like copyright concerns, but actually implicate other legal doctrines. ​Step 3 helps you identify these potential non-copyright legal questions that can impact your permission-seeking and publication process.  

⇒ Contractual Limitations

  • Agreements with Archives & Special Collections
    • If you are using unpublished material from libraries' special collections or archives--whether you physically accessed the materials in a reading room, or accessed the collection online--you may need to consider website terms of use agreements, or contracts you signed (or clicked through online) with the institution. This is because, irrespective of whether materials held by archives or in libraries' special collections are protected by copyright, you may have entered into an agreement dictating whether you can publish from the works. 

  • Website or Database Terms of Use & License Agreements 
    • There is another type of contractual limitation you might face if you've consented to agreements in order to use or license materials or data. (If you are using materials or compiling data from library-licensed resources, you have consented to the database or data set's terms of use.) 
    • The terms of these agreements, or online terms of use, shape what you are able to reproduce in your publication--so, be sure to read them carefully. As with archives or libraries, you can contact the website or database provider regarding publishing rights under these agreements.
  • Why does this happen?
    • Why would some libraries and archives restrict your ability to publish from works in their collections? They often sign agreements with donors that, themselves, restrict reuse of the records being contributed. For instance, a donor of unpublished personal letters might--as a condition of donation--restrict use of the letters to researchers in a reading room, and prohibit publication or digitization. The archives may pass this condition on to you with a "Terms of Use" (or equivalent) agreement. In exchange for the archives granting you access to the correspondence, you may waive your right to publish excerpts from the letters as fair use, since contract law trumps copyright.

  • How should you proceed?
    • When using materials from databases, websites, archives or special collections, read carefully any agreement or terms of use that you are asked to enter into. Most databases, sites, libraries, and archives have pages that explain their permissions policies. For instance, UC Berkeley's Bancroft Library has a permissions page here.

    • If the site or archive's terms of use do not let you reproduce the materials, inquire about whether a waiver is possible, or seek additional information from the archive about securing rights to publish.

⇒ Rights of Privacy

  • Copyrights protect copyright holders' property rights in their works, while privacy rights protect the interests of people who are subjects of those works. 
  • Overview
    • Privacy rights most often arise if you are seeking to use third party content like correspondence, diaries, and images that contain personal information about or pictures of particular people. 

    • In addition to a number of federal statutes that protect against disclosure of various types of personal information (e.g. FERPA (student information) and HIPAA (health information)), there are also state laws governing privacy.

    • State privacy laws make intrusions of privacy a tort (i.e. a wrongful act). The four typical types of intrusions that state laws protect against are: intrusion upon seclusion; public disclosure of private facts; painting someone in a false light; appropriation of name or likeness

  • How Should You Address Privacy Concerns?
    • You may not need to dig too deep. There are important limitations on privacy rights in the context of your scholarship. 

    • First, privacy rights expire at death--meaning, you can't be liable for disclosing private facts about a person no longer living.

    • Second, there are typically two other important defenses to claims for invasion of privacy: newsworthiness, and permission. If the material you wish to include reveals private facts that are "newsworthy" (of public interest or concern--which your scholarship may be), or the person who is the subject of the information has given you permission to publish (which you may have obtained), then an invasion of privacy claim should not be sustainable. For more on newsworthiness and permission exceptions, exploring the Digital Media Law Project out of Harvard University's Berkman Klein Center should prove helpful. It is no longer being updated, but contains very useful explanations.

⇒ Rights of Publicity

  • Publicity rights also are tied to the subject (i.e. person) who is depicted in the work.
  • ​Overview
    • As with privacy torts, there is no generally-applicable rule across U.S. jurisdictions. If a state recognizes the "right of publicity," such laws typically prevent unauthorized commercial use of an individual’s name, likeness, or personal attributes. Publicity rights thus provide individuals with rights to control the commercial use of their identity, and sue for damages.
  • How Should You Address Publicity Rights?
    • Unlike privacy rights, publicity rights usually survive an individual's death, such that a person's estate may enforce them even if the person is no longer alive. Further, remember that the right of publicity is a protection independent from copyright. Thus, even if photographs of a famous historical figure may be in the public domain, that person's estate may still choose to enforce publicity rights against unauthorized commercial appropriation of his/her likeness.
    • But remember the important foundation of and thus limitation on publicity rights:  They are typically intended to prevent unauthorized commercial use of one's identity. Thus, they are often inapplicable unless you collect royalties or publish a book.
  • For More on Publicity Rights
    • If you are planning a commercial use of another's likeness, and want more information, check out the Digital Media Law Project, hosted by Harvard's Berkman Klein Center--particularly the Using the Name or Likeness of Another page. While it is no longer being updated, it's an excellent account. You might also want to take a look at Peter Hirtle's excellent book, Copyright & Cultural InstitutionsCh. 9.3.

⇒ Other Concerns

  • Privacy & publicity rights and contractual limitations are the key "non-copyright" issues not to overlook.  For more information about other similar considerations for your digital project, check out Peter Hirtle's excellent Copyright & Cultural Institutions book, Ch. 9.