These discussions are really interesting, note the discussions on public domain records a repository has...and this might be why they hesitate to digitize their collections i.e. for genealogy research... 1. These records are an ASSET, used to generate income for the respository 2. We use PUBLIC DOMAN records from them and once they release a copy the ASSET value of the record is gone because they no longer control the record... 3. In Peter's article was mention of charges for the information....it sounds to me, like *what the market will bear* was the charge threshold....that by the way, can and usually is a pretty high threshold....I'd say from our petition, they've gone beyond what *the market will bear*.... I do believe however, some of this *concern* on their part could be eliminated with web databases and a nominal fee for use, not much different than going there to look at the records and getting copies I'd say....boy, they are just slow to embrace technology and web use....also remember, that at least state and federal Archive and Libraries receive State and Federal funding, as well as private donations, although that has dropped in years...but never the less, they do still receive substantial funding from state and federal sources...they're basic organizer... Char ************************** From : George Miles <[email protected]> Reply-To : George Miles <[email protected]> Sent : Tuesday, February 8, 2005 7:11 AM To : [email protected] Subject : Re: [ARCHIVES] public domain and charging fees I've found the discussion about publication fees interesting and have appreciated Peter Hirtle's contributions - both in his address to SAA and his recent statements to the list, including his observations about Yale's statement regarding copyright and special collections. I don't however, agree with his take on the question about the ability of repositories to control publication. Some background information about events that contributed to Yale's statement may be helpful. In 1999 and 2000, the director of Beinecke Library, Ralph Franklin, led the library's staff in a full review of our "permission" policies. Mr. Franklin was particularly concerned about understanding both our rights and liabilities under the copyright laws as well as the way our permission policies and fees met or conflicted with our mission to foster teaching and learning. The University Librarian at the time, Scott Bennett, was interested in the conversations and joined our staff to present his own perspectives. I recall that he was particularly concerned that non-profit institutions recognize that while they faced significant economic challenges and had to be wise custodians of their resources, that they also needed to recognize that the government and society had extended significant privileges to them to assist in those areas and that we should try to embody the constitutional principle that copyright was meant to foster creativity and learning rather than to produce income. During the course of our discussions, which soon extended beyond Beinecke to involve other members of Yale's Library system, we brought several experts on intellectual property to campus both to inform us and to brainstorm with us about copyright law. Ann Okerson, our Associate University Librarian for Collections, played an important role in arranging those discussions and was particularly interested in understanding the implications of copyright law for digital library developments. I remember drawing several observations from those discussions that seem directly pertinent to Peter's point about control of publication. First, the experts observed that they believed that the fundamental constitutional principle of copyright, and in particular the place of the public domain, would trump "license" arrangements that attempted to restrict use of public domain materials. As they put it: Yes, we could refuse to allow someone to see a copy of something in the public domain; Yes, we could refuse to make a copy for them; Yes, we could charge them anything we wanted for making that copy. However, once someone had a copy of something in the public domain - whether through manual copying in our reading room or by receiving a photo-facsimile from us, we had no legal standing to prevent their publishing it as they wished. We could, we supposed, refuse to serve such people in the future, but we were very, very unlikely - they told us - to recover any damages if we tried to sue them for "breach of contract." Second, the experts impressed upon us that if we imposed "use" fees on non-public domain material, we might be liable for damage to the copyright holder's interests. That is to say, the law protects the rights of copyright owners to exploit their material without interference from third parties. If our "use" charges reduced the ability of owners to interest third parties in publishing their material or reduced the fees that publishers were willing to pay them, we were interfering with their rights. Note that I am NOT saying that we must make copies available for no charge, nor that we can charge ONLY "costs of reproduction" (whatever that means), but that fees associated only with "permission to publish" would on their face seem a potential interference with the rights of the copyright owner. Any fees need to be applied to the process of providing access -either through access to the reading room or to copies of original material, not to how any notes or copies are later used. In the end, Beinecke dramatically revised its permission policies. We continue to charge photo-duplication fees but no longer charge publication fees. We inform users that we provide copies to them under the fair use provisions of the copyright law and that it is their responsibility to secure permission from copyright owners if their own uses exceed fair use. When we are asked to "grant permission to publish" we respond that unless the Library owns the copyright in the requested material (as we do in a very, very small number of cases), we have no rights to grant OR to deny concerning publication of the material. This frustrates some users and publishers who would like to use us as an assurance that they can publish material, but in truth, such a "shield" never had any standing in court. Having said this, I want to say that I agree with Peter about the nature of copyright in photoduplications and "copy photographs." To my understanding, there is still a gray area in the matter of photographing works of art, especially three-dimensional art because the photographer must make a series of choices about how to approach the subject. This would not seem to be the case in making a microfilm of a book or diary, or an exact copy-print of an illustration from a book, etc. Yes, one photographer may be better than another, but copyright lies in original expression not in skill. In defense of the Yale statement, I think it is useful to understand that it emerged in the context of extensive discussions Yale's vibrant museum and art history community who remain very concerned about the issues associated with use of art photography. George Miles Curator, Yale Collection of Western Americana Date: Mon, 7 Feb 2005 14:16:18 -0500 From: Peter Hirtle <[email protected]> Subject: Re: public domain and charging fees MIME-Version: 1.0 Content-Type: text/plain; charset="us-ascii"; format=flowed At 11:47 AM 2/7/2005, Kathy Gaynor wrote: Peter, a request. To further our understanding of this complicated issue, would you comment on those portions of the Yale statement on copyright versus use permissions with which you don't agree? Thank you. Sure. FYI, the document is at <http://www.library.yale.edu/special_collections/copyright.html>. I have these concerns: 1. Yale argues that only the copyright owner can grant "permission to publish," but not the institution that owns the document. This may be technically correct (I would have to think about that a bit more), but in practice repositories tend to think of their physical ownership rights as allowing them also to grant "permission to publish." So I think the document may be confusing when it says: If you own a "copy" and the intellectual content has passed into the public domain, you can charge for providing access to your "copy," but you cannot charge for permission to publish, nor can you withhold permission to publish... I think that you can stipulate as a condition of access the terms under which a user could "publish" the document. In effect, you can use your access rights to control publication (though technically the pure "publication right" may belong only to the copyright owner). Some day a court may forbid repositories from using their control of access to control publication, but to date none have. 2. In 2B, the document says "All photographs, even those referred to as 'copy photographs,' are copyrighted." Since the Bridgeman decision, this is wrong. If you are making a copy photograph of a two-dimensional item, and your goal is to reproduce as closely as possible the original item, then the copy photograph does not have enough originality to warrant copyright protection (no matter how much skill or digital manipulation it took to make it). 3. In section 4, they got it backwards. If we have copyright relations with a foreign country, then we don't have to worry about the copyright laws in that country. The foreign work is protected in the US as if it had been created in the US. 4. In the "additional information" section, it says "Works of art are considered to be published when they are publicly displayed." This is wrong. The copyright law states that "A public performance or display of a work does not of itself constitute publication" (though if no provision is made to prevent people from making copies of the work, then publication may have occurred). 5. In recommending the use of the copyright symbol on the page, the page could have made it clear that the use is desirable, but not mandatory, for copyright protection. As I said in my original message, the thing I like the best about this page is that it encourages us to think about the differences between the rights of the copyright owner and the rights of the owner of the physical item. I applaud Yale for trying to address thoughtfully some tough issues, even if they got a few things wrong. 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