Peter Hirtle wrotes in the LibraryLawBlog:
A continuing source of controversy is the desire of some archives, libraries, and museums to control through contract the downstream use of reproductions and digital files of public domain items. A number of recent news items make me wonder if there is much of a future for this common practice:
First, a working group of the Max Planck Institute for the History of Science organized to address issues relating the to the use of images in scholarly research released early in January its final recommendations. While the report, “Scholarly Publishing and the Issues of Cultural Heritage: Fair Use, Reproduction Fees, and Copyrights,” is concerned primarily with visual images, its conclusions would apply to all public domain archival material. Everyone should read it.
Among the many interesting recommendations for cultural institutions and scholars, perhaps the most important is the recognition that in order “to promote creative scholarship in the humanities and to foster a deeper understanding of cultural heritage, …open access to visual sources not covered by copyright” is needed. That means that institutions should not use their ability to control access to limit non-commercial, scholarly use of public domain material.
The Center for History and New Media at George Mason University and the Internet Archive have announced a really interesting Mellon-funded pilot partnership to create an archival commons. As a pilot project, they are joining with the Zotero-Internet Archive New Orleans user group to develop a program in which individuals share primary source materials on New Orleans that they have collected. The announcement notes that they “are especially interested in material gathered from smaller archives in the New Orleans region that may now have limited access or even have been destroyed because of Hurricane Katrina.” There is no mention in the announcement of possible limitations on use of these materials that may have been imposed by those same archives.
The Alexander Street Press has announced an expensive new digital collection on local history. The database consists of the images published in the local history books produced by Arcadia Publishing. It is quite likely that many of these images came from libraries and archives that in theory impose restrictions on downstream use, and they were provided for specific print runs. While seeking permission from authors to include their works, ASP is choosing to ignore archival ownership of the images and any restrictions on subsequent use that were imposed when reproductions were made. Instead of seeking permission (and paying additional fees), it is offering an “opt-out” program through which repositories can tell them not to include their images. (Let’s hope that there are repositories that may actually own registered copyrights in some of these images. The copyright infringement fines they could secure would be substantial.)
The American Founding Era Digital Collection being offered by the University of Virginia Press is continuing to add to the digital versions of correspondence available through subscription. To the best of my knowledge, the initiative has neither contacted any of the repositories that originally provided copies of correspondence to the editorial team nor have offered to share revenues from the project. While it is possible that the original provisions of copies included permission to publish in electronic as well as print form, it is much more likely that permission was for print only (as was the case in Random House v RosettaBooks). I suspect that the project is ignoring rights accruing from physical ownership of the original material.
Given the that repository-based use restrictions are being ignored by scholars and at least two commercial products, one has to wonder what is the point of imposing them at all. Wouldn’t scholarship be better-served if repositories sold reproductions for whatever the market would bear but allowed public domain material to be freely available via open access solutions? (my emphasis)