Gary Mokotoff, Editor
Volume 17, Number 42 | October 23, 2016
Every government puts value on preserving its history. That is why we have national archives. Genealogy preserves history; the history of a family. It cannot be done without access to records, just as historians cannot preserve a nation's history without access to records. It is a greater good than the right to privacy. It is a greater good than the risk of identity theft.
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Remarkably, there were no significant news articles worth publishing in Nu? What’s New? this week, so, instead, the issue is devoted to a favorite topic of mine: Can you copyright family trees?
Can You Copyright Family Trees?
Too often I receive complaints from genealogists who state they connected with another genealogist with whom they share common relatives, and the information s/he provided was placed on the Internet without her/his permission. The situation can be put in a legal perspective: can you copyright the family tree you created? The answer is that it may depend on which country you live?
There are two schools of thought. One says you cannot copyright facts. The other says that if the facts you express in your family tree were done by a process that could only be duplicated by another with great time and/or difficulty—usually described as “sweat of your brow”—then it could be copyrighted.
In the United States, “sweat of your brow” made a work copyrightable until 1991 when the U.S. Supreme Court declared mere collections of facts are considered unoriginal and thus not protected by copyright. According to the Wikipedia site at https://en.wikipedia.org/wiki/Sweat_of_the_brow, UK and Germany lean toward the “sweat of your brow” philosophy of making a work copyrightable, but it is not true for Israel or Uruguay.
“Facts” Created by an Intellectual Process
I would like to add another consideration: If the so-called facts are actually opinions based on the intellectual process of evaluation of the evidence available, then that portion of that family tree should be copyrightable.
Here is an example outside the realm of family trees. In 1993, Avotaynu published A Dictionary of Jewish Surnames from the Russia Empire by Alexander Beider. It identified more than 50,000 surnames from czarist Russia, and included for nearly all surnames their etymology (the origin of the name.) Are these etymologies copyrightable? Some would argue “no,” because the etymology of some of the names are facts. Clearly the etymology of the surname Aronowicz is “son of Aron”; the etymology of Wilner is “from Vilna.” But a tremendous number of etymologies were created by the author’s opinion based on evaluation of the evidence.
One of Dr. Beider’s contributions in publishing the book is that you cannot look merely at the surname to determine its etymology, but you must consider its geographical environment. His predecessors concluded that the surname Poznansky, meant a person from Poznan. But Beider determined that more likely the etymology had its origins in the small village of Poznanka in the Balta region of Ukraine, because that is the region where the surname appears.
There was an incident a number of years ago where a major Jewish institution (which shall remain nameless) placed on their website a list of tens of thousands of Jewish surnames from Eastern Europe which included their etymology. Comparing a few of their etymologies against the Russian Empire book, it was clear they had gotten their information form the copyrighted book. I complained to them and their response was it was not so—they had used other sources for their information. I contacted Dr. Beider and asked him to give me five etymologies he now knew were wrong based on further research. Comparing these erroneous “facts” against that of the Jewish institution found the results were identical. I had demonstrated the institution’s source was Dr. Beider’s book.
The Ethical Issue of Declaring as Your Own, the Family Tree Data of Others
There is also the ethical issue of using other people’s efforts. This reminds me of an incident that occurred a number of years ago when Ancestry.com was in its infancy. At that time, Ancestry created a group of advisors to assist them in policy and planning. I was a member of the group.
I recall that at one meeting held in Salt Lake City there was controversy about a database Ancestry was considering adding to its collection. It was from a book of gravesite information then recently published by a genealogical society after many hours of labor. It was nothing more than a compilation of facts about who was buried in what cemetery in the geographical area of the society. The CEO of Ancestry at that time was a thorny, take-advantage-of-the-rules type person who declared that since it was nothing more than a complication of facts, Ancestry had a right to copy the data onto their site.
At that time, Loretto (Lou) Szucs was a vice president of Ancestry. Lou is one of the most widely-respected and beloved members of the American genealogical community. She convinced the CEO it would not be fair to capture the data, and might even create ill will against Ancestry among other genealogical societies. The CEO relented. At the end of the meeting, I was chatting with the CEO when Lou came over to join the conversation. The CEO remarked, “You know, Lou is the conscience of Ancestry.” To which I replied, “In other words, without Lou, Ancestry would have no conscience!”
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