COPYRIGHT CORNER
Do Indexes Qualify for Copyright Protection?
December 2004
The simple answer to this question is yes. This is copyright, however, so of course it cannot be a simple yes but instead is “yes, but….” An index is a factual compilation of a specific type and a number of earlier columns have addressed the issue of factual compilations and the requirements they must meet in order to qualify for copyright protection. Indexes are no different. There are several types of indexes for which the question about copyrightability may produce different answers to this question depending on the type of index involved. For example, a subject index in a book, a stand alone index and a computer-generated index that searches a document word by word are different types of indexes.
In order to qualify for copyright, an index must be an original work with at least a small amount of creativity, and it must be fixed in tangible form of protection now known or later developed. It is the creativity part of the originality requirement that has plagued the creators of compilations since Feist v. Rural Telephone[1] in 1991. In that case, the U.S. Supreme Court held that in order for a factual compilation to qualify for copyright, it would have satisfy the creativity portion of the originality requirement. This could be done by finding the requisite originality in elements such as selection, coordination arrangement of data and value adding.
A subject index clearly exhibits considerable creativity in the analysis of the text, the selection of the words and phrases to use as index terms in the particular work and in the assigning of portions of the book to a particular term. This is clear evidence of the exercise of independent judgment. Both subject indexes to a book or other works and stand alone subject indexes would satisfy this factor. Indexers exhibit considerable skill in selecting the terms, applying their knowledge of the subject field, determining how much mention or discussion of the term or concept merits an index entry, and the like. Coordination comes from identifying the terms that will be primary subject headings and which will be subordinate, whether to use synonyms as “see” references, etc. The arrangement of such an index thus follows somewhat from the selection of primary indexing terms since most indexes are an alphabetical list of terms with “see” and “see also” references leading users to the proper term used in the index for coordinate concepts, but the arrangement is reflective of the decisions made in selection and coordination, and thus is likely to be original also.
Thus, pretty clearly a subject index may qualify for copyright protection. The second question is who owns the copyright in a subject index. Is it a work for hire or is the indexer an independent contractor? If the work is a free-standing index, clearly the indexer is the author and owns the copyright. But what about a subject index that will be incorporated into a book about to be published?
A work for hire is a work prepared by an employee within the scope of her employment. So, an independent indexer who contracts with a book publisher to produce an index for a particular book normally is not an employee. But if that publisher has a staff indexer who produces all of the indexes for its publications, that indexer is an employee because the individual is salaried, the publisher pays benefits, provides workspace, etc. The statute dictates that in the work for hire situation, the employer is the author.
Outside of the formal employment context, a publisher may engage an indexer to produce a particular subject index for a book. Is this a work for hire? This is a “commissioned work” under the statute and whether it is a work for hire depends on three factors: (1) the work must be specially ordered or commissioned, (2) it must be one of the nine categories of works statutorily defined as comprising commissioned works that will be considered works for hire, and (3) the parties must agree in writing that the work is a work for hire. One of the nine categories listed is “supplementary work” and indexes are identified among the common types of works that would fall into this category.[2] It is likely the third requirement that most often is not met. Apparently, many indexers have informal agreements with a publisher to produce an index but there is no written agreement. In this instance, according to the statute, the index cannot be a work for hire. The reality is often, however, that the indexer has not sought to exercise his copyright rights and the publisher has just assumed that it owns the copyright as a work for hire.
Ownership of the copyright in a subject index is a matter of considerable importance to both indexers and publishers. Clarifying the copyright ownership issues up front will avoid later conflict. While publishers are likely to have standard contracts, it behooves an indexer to also have as contract that he or she prefers and to present it to the publisher for discussion prior to commencing the work.
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JOHN – COULD YOU PUT THE FOLLOWING IN A BOX EITHER AT THE BEGINNING OR THE END OF THE COLUMN THIS TIME? THANKS AND GOOD LUCK.
It is with both regret and relief that I write this my last copyright column for Information Outlook. I have loved writing the column, but 74 columns later, I have quite simply run out of ideas for the column! I appreciate the support and ideas you have given me over the past six plus years – now you know everything I know about copyright. I am delighted that SLA has found an excellent new columnist to carry on the tradition, Lesley Ann Harris who is very knowledgeable is also an excellent writer. I will enjoy reading her columns as I know you will.