Libraries and copyfraud : Special collections and the public domain

Steve Lawson has an Interesting Post based on This One about someone who has been exchanging emails with curators at the Huntington Library about their use policies for digital images. Lawson: "In addition to charging a reproduction fee, the Huntington asked about Ross’s intended use and quoted further fees based on what the use might be. When Ross pointed out they can’t do that with a public domain image, the library said, in effect, “all libraries do this,” to which Ross replied something along the lines of “so what?” It is, he says, a crime called copyfraud."

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Of course they can

Just because a library wants to charge for the use of something it owns does not make it illegal.

If I own a book that is no longer protected by copyright you don't have the right to photocopy it. If you want to I may let you, if you want to sell the copies I may charge you, if you want to make billboards I may charge you more.

Just because the IP is in the public domain does not mean the property rights in the tangible property (and yes electronic files are treated essentially the same way) is lost.

My understanding of Bridgeman is that simply creating a copy of an image that is in the public domain by copying through photographic or similar process that produces a duplicate of the image does not start the clock ticking on the newly created (duplicate) image. There is no new clock to tick.

It is Huntington's property and they can license it any way they see fit. You are under no obligation to use their property.

Copyfraud, please lets all just make up our own crimes! I charge half of the country with putz in the first degree.

It's About Staying Open

You have to remember that the Huntington Library needs the $$$ to maintain its collection and grounds! They even charge you an exorbitant entrance fee these days.

Read the post

Read the post, mdonnell. Neither Ross nor I say that the Huntingon can't or shouldn't charge to make the reproduction. The point is, they can't dictate what you do with it after that if it is in the public domain.

Contract law

They may not be able to enforce it with copyright law but they can with contract law. If you agree to certain restrictions when they give you an item then you agreed to them.

Yes, but

It's true that they could use contracts to try to control the distribution of digital images. (In fact, I pointed that out in my email exchange with the Huntington.) But that's not typically what libraries do, and contract law doesn't apply to anyone who hasn't entered into a contract regarding a file. In some cases, obfuscation is the order of the day and libraries just make it seem like they have the right to restrict uses of an image. In other cases, they explicitly claim copyright on PD material. See, for example, the University of Oklahoma: http://hsci.ou.edu/galleries/
For their scans of PD books, they claim the following: "All images courtesy History of Science Collections, University of Oklahoma Libraries. Copyright by the Board of Regents of the University of Oklahoma." They also have an image terms of use page, http://hsci.ou.edu/exhibits/exhibit.php?exbid=4, that draws on contract-type language. They allow non-commercial use, but without copyright, they have no way to control any reuse after that. But they try to by claiming copyright.

You have it right

"Contract law doesn't apply to anyone who hasn't entered into a contract."

There ya go.

Never attribue to malice that which can be explained by stupidity.

Don't take copyright advice (or any legal advice) from librarians.

IANAL

I was shooting from the hip there, but it's not at all clear to me how contract law could restrict the use of public domain images by anyone except the parties entering into the contract (e.g., the library distributing a file and the person receiving it). To be more concrete, because the Barraud photo I blogged about is public domain and is reproduced in a 1995 Scientific American (which presumably contracted with the Huntington Library for permission to publish), I can copy the version from Scientific American and do whatever I want with it, regardless of whatever contract exists between Scientific American and the Huntington. If you disagree, I would prefer explanations to insults.
-Sage

Agreeing

I was agreeing with you, not insulting you. You had it right on the mark when you said you can't be held to a contract to which you are not a party.

You are right about copying a copy of an image in the public domain, live it up, as long as there is not an element of originality (as if they did an Fairey Obama Hope Poster treatment with the colors of a Matthew Brady print of Lincoln I would think that would be preclude you copying that).

The comment about malice and incompetence was about people (including librarians who charge for copies you make of public domain images) who act more from ignorance than any ill will.

whoops

"I was agreeing with you, not insulting you. You had it right on the mark when you said you can't be held to a contract to which you are not a party."

Oh! My mistake. I had my sarcasm detector set too high. Thank you.
-Sage

is the contract law approach valid?

After digging a little more, I'm not sure. See: Section 301 of the Copyright Act of 1976:

“[A]ll legal or equitable rights that are equivalent to any of the exclusive rights within the general scope of copyright as specified by section 106 in works of authorship that are fixed in a tangible medium of expression and come within the subject matter of copyright as specified by sections 102 and 103 . . .
are governed exclusively by this title.”

So contract law may not be a valid substitute for copyright in controlling public domain works.

Really?

If it is public domain, it is no longer "within the subject matter of copyright", so contract law an apply.

I read the post

I read the post and I agreed with you.

I didn't think it was necessary for me to suggest that one simply make a copy of the original and tell the library to get bent as they have no defensible right in the intellectual property. I guess I was wrong. I'll try to be more clear.

Libraries, archives, museums

It is probably true that most libraries don't try to control use of their images with contract law, but many, many special collections and archives and most museums do. Does this make it right? Well, the problem is that this method of finance is so embedded in the culture of these organizations that they are often not able to sustain themselves without the revenues from these licensing agreements. The institutions have a duty to maintain the collections in their care. To do that, they charge fees for services, including use of images. If there are rich benefactors who want to set up endowments for these institutions with the provision that public domain images are free for any and all use, then that's great. Until then, fees are part of the usual, customary, and reasonable method of doing business.

I would consider it

I would consider it "copyfraud" to assert copyright over the digitized image, but I don't believe it's copyright that applies here. Contract law could apply- Section 301 doesn't abrogate your ability to enter a contract regarding the ownership of the material. That's not a very strong protection, though, as the above posts point out.

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