October 31, 2014

Asserting Rights We Don’t Have: Libraries and “Permission To Publish” | Peer to Peer Review

Anderson July 2014 170x170 Asserting Rights We Dont Have: Libraries and Permission To Publish | Peer to Peer ReviewIn late June, a minor brouhaha erupted when the library at the University of Arkansas suspended reporters from the Washington Free Beacon, an online newspaper, from using its special collections. The reason given by library administrators was that on multiple occasions the newspaper’s reporters had published content from those collections without asking permission, as library policy requires. Much has been made in the right-wing press about the politics supposedly surrounding this conflict: in the incident that resulted in the Free Beacon‘s ban, it had published interview transcripts that put Hillary Clinton in a bad light; the Free Beacon is a conservative publication, and the library dean is reportedly a donor to the Clinton Foundation. But while the political issues in this particular case are interesting and may be worthy of discussion, I want to focus on a different issue: the practice of making patrons request library permission before republishing (in whole or in part) content drawn from documents in our special collections.

It’s in the nature of special collections that their holdings are, well, special. They generally include not only formally and commercially published documents that are rare or highly valuable, or that have a particular relevance to the host institution, but also rare and unique unpublished documents in a variety of formats. Some of these will be under copyright (as is the case with the tape recordings from the University of Arkansas’s library); others will be in the public domain. In the case of documents that are under copyright, it’s relatively rare—though not unheard of—for the library to be the copyright holder.

Where the library is the copyright holder, the library is completely within its rights to require patrons to ask permission before making use of the documents in question that goes beyond fair use. And where the document is under a copyright held by someone other than the library, it makes sense for the library to let patrons know that the law puts certain limits on their use of the document. If the materials have been donated or lent to the library under restrictive terms, the library is of course obliged to abide by those restrictions as well.

What is much less clear to me is how a library can justify (in the absence of a donor restriction) requiring patrons to ask permission to make lawful use of the content of materials that are in the public domain. Such requirements appear to be quite standard in academic libraries; you’ll find “permission to publish” requirements at Willamette University, at Stanford, at Arizona State University, and at the University of Utah (my own institution), among many others. Some libraries (for example, Princeton‘s) require patrons to ask permission before even quoting from documents housed in their special collections, even if those documents are in the public domain.

Such requirements are not universal, however. At the University of Virginia, the library’s special collections department explicitly disavows such restrictions, saying that since the library has an interest in “supporting research, teaching, scholarship, publication, and artistic production involving use of the Library’s Special Collections materials…it is not necessary to seek the Library’s permission as the owner of the physical work to publish or otherwise use public domain materials” from its collections. The Harvard Law Library does so as well (though only for documents dating before 1850) and so does the University of Wisconsin (though its policy document is a bit confusing).

Does a library have the legal right to impose such restrictions on reuse of public domain content? Strictly speaking, no: physical ownership of a public domain document does not give the owner the right to say how the document’s content may be used. However, what the owner of the physical document certainly may do is control access to it. Even a public university has the right to control access to its collections, especially collections that are fragile, unique, or otherwise in need of special care. There’s nothing illegal about saying, “You may not have physical access to our rare and unique materials unless you are willing to agree to use them under terms that we set.” There is also nothing illegal about saying (as the University of Arkansas did to the Free Beacon reporters), “If you don’t abide by our terms of access and reuse, we will stop letting you have access to our collections.”

But my question isn’t really about the library’s legal rights. It’s about whether we’re abiding by the principles we claim as being core to our profession—in particular, those principles related to intellectual freedom, the public good, and service. It’s one thing to require that rare or fragile documents be handled carefully and under supervision and to educate patrons about copyright law; it’s quite another thing to require that patrons ask our permission before reusing the intellectual content of documents in the public domain and even (as many libraries do) to inform us ahead of time how they plan to use it. When we require them to ask our permission before republishing, quoting, or otherwise reusing public domain content, we are asserting a right we don’t have—the right to control our patrons’ use of public intellectual property. We would never consider trying to impose that kind of control over our patrons’ use of public domain content from our general collections, so what is it about rare and unique materials that makes us think it’s okay to do so in that context?

I posed that question to several special collections librarians whose programs require patrons to ask permission to publish or quote from public domain documents. Some of the answers I got had to do with the difficulty of managing materials that have been given to the library under restrictive terms. In such cases, the issue isn’t copyright but rather one of abiding by the agreements made when the gift or loan was accepted. Someone might donate an ancestor’s diary to the library with the understanding that it will only be made available to researchers in certain very specific ways. Donors are, again, completely within their rights to impose such conditions, and libraries that accept the donations are obliged to abide by them. As one librarian pointed out to me, the permission-to-publish form provides a practical mechanism for prompting library staff to check and make sure such restrictions aren’t in place before allowing the republication of this kind of material. However, this seems to me like a cart-before-the-horse arrangement: instead of a system that requires patrons to fill out forms and then requires staff to consult deeds of gift every time someone wants to make lawful use of public domain content, shouldn’t such restrictions be recorded in registers and finding aids as part of the processing of every gift? Patrons can’t usually locate special collections materials unless finding aids for those materials have been created—shouldn’t the creation of those finding aids include annotations about donor restrictions?

Other responses I got were far less satisfactory. One librarian seemed not to understand some basic points of copyright law—for example, that a library can’t claim copyright in the unaltered digital image of a public domain document. Some sought to justify their “permission to publish” requirements on the basis of the library’s need to track usage of content from its collections, in order to provide justification for the special collections program; others did so on the basis of being able to charge usage fees for commercial reuse, or said that mediating access to the content puts the librarian in a position to educate the user on copyright issues.

For the most part, these strike me as remarkably weak justifications for imposing an entirely artificial restriction on our patrons’ legal reuse of public domain content—for acting, in short, as if our ownership of physical copies of these documents entitles us to limit and control the use of those documents’ intellectual content. Again: this isn’t an issue of legal rights, strictly speaking—if we own a copy of a document, there’s nothing technically illegal about denying someone physical access to that copy for any reason we care to come up with, even if the document’s intellectual content is in the public domain. This is an issue of professional standards and ethics. As a profession that proclaims loudly and often its support for the free and open sharing of information—one that, in fact, regularly calls for the free distribution and unrestricted reuse of documents arising from publicly funded research—how can we, with a straight face, make people ask our permission to exercise the rights of redistribution and reuse that the law provides them, whether for private, public, commercial, or noncommercial purposes? And as a profession that proclaims its support for principles of intellectual freedom, how can we justify asking patrons to tell us, ahead of time, in what kind of publications and for what purposes they intend to republish public domain content (see the permission forms in use, for example, here, here, and here.)

Based on the conversations I’ve had with my colleagues in preparing this column, these seem to be questions that make us uncomfortable. So be it. Let’s have the conversation anyway.

[Editor’s note: At the time of publication, UC Irvine was in the process of discontinuing its permission-to-publish policy. That policy is now no longer in force, so a reference to it has been removed from this column.

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Rick Anderson About Rick Anderson

Rick Anderson (rick.anderson@utah.edu) is Associate Dean for Scholarly Resources and Collections at the University of Utah’s Marriott Library. He serves on numerous editorial and advisory boards and is a regular contributor to the Scholarly Kitchen blog. His book, Buying and Contracting for Resources and Services: A How-to-Do-It Manual for Librarians, was published in 2004 by Neal-Schuman.

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Comments

  1. You might be interested in my take on the same issue at http://blog.librarylaw.com/librarylaw/2014/07/arkansas-and-archival-permission-practices.html. I analyze the stated reasons for the Arkansas policy and find most of them wanting. Jean Dryden looks at justifications for controlling digitized special collections in “Just Let It Go? Controlling Reuse of Online Holdings” Archivaria #77 (2014). One institution’s thinking in removing restrictions on the use of public domain material is found in “Removing All Restrictions: Cornell’s New Policy on Use of Public Domain Reproductions” at http://publications.arl.org/ovfnk.pdf. And I raised many of these same issues a decade ago in my presidential address to the Society of American Archivists, “Archives or Assets?” It is found at http://www.archivists.org/governance/presidential/hirtle.asp. The conversation has been underway for quite awhile.

    • Rick Anderson says:

      Thanks very much for sharing these links, Peter! The reactions of the librarians I interviewed in the course of preparing this piece led me to conclude that my inquiry constituted the first time they had been asked such questions, so I’m glad to hear that this issue really is being discussed out there.

  2. I should have mentioned as well the other side of the conversation. See Lisa Browar, Cathy Henderson, Michael North, and Tara Wenger, “Licensing the use of special collections material,” RBM: A Journal of Rare Books, Manuscripts, and Cultural Heritage vol. 3 no. 2 124-143, http://rbm.acrl.org/content/3/2/124.full.pdf+html.

    My inclination is for your position, by Browar, et. al., make a good case for the other side.

    • Rick Anderson says:

      Hi, Peter –

      Although Browar et al. do make a strong factual argument in support of the proposition that revenue streams are a good thing for Special Collections, I don’t think I can agree with you that they make a good moral/ethical case for the library acting as if it holds copyright in public domain content — which is what it is doing by charging licensing fees for the reuse of such content. Libraries have no authority to license the public’s reuse of what the public already owns. To be clear, though, I don’t want to beat up on Browar and her coauthors — the case law in this regard has become somewhat clearer today than it was in 2002, when the RBM piece was written. Also since then, the United States Copyright Office has made it clear that it will not register copyright in works that simply represent a conversion from analog to digital format; digitized versions of public-domain works clearly fit into this category, but that wasn’t such a settled issue in 2002.

  3. Jackie Dooley says:

    Thanks for this article, Rick. It’ll bring the issue to a lot more people in special collections and archives who haven’t tuned in on the conversation over the years. Peter has indeed been telling our community for years that requiring permission to publish is basically illegal, though change has been minimal as far as I’ve been able to tell. The latest clarion call came from Michelle Light at UN Las Vegas, when she delivered this fantastic paper at the RBMS conference in June:

    http://digitalscholarship.unlv.edu/libfacpresentation/121/

    Also, my colleague Merrilee Proffitt posted the following on our hangingtogether.org blog following Michelle’s talk, including a list of the institutions that Michelle’s cited as being “the good guys”:

    http://hangingtogether.org/?p=3984

    –Jackie Dooley, OCLC Research

  4. Rick, such a timely and important piece. In fact, we were already in the process of removing the outdated “permission to publish” policy from our website and have been refining our site for several months!

    This piece (along with inspiration from Peter’s work and Michelle’s plenary at RBMS) were just the kick we needed to remove our permissions policy immediately and for good. We will have completely refreshed policies by our Fall 2014 quarter.

    It’s great to see this topic expanded to include the wider library community.

    Audra Eagle Yun
    Head of Special Collections & Archives
    University of California, Irvine Libraries

  5. Emily Barney says:

    The Chicago-Kent Journal of Intellectual Property published an interesting article by Amy Hackney Blackwell & Christopher Blackwell last fall (2013) titled “Hijacking Shared Heritage: Cultural Artifacts and Intellectual Property Rights.”

    http://studentorgs.kentlaw.iit.edu/ckjip/?attachment_id=1276

    The article describes their experiences as researchers working to digitize items that definitely would fall under public domain – from ancient manuscripts to botanical specimens from the 17th century – and the different restrictions and requirements they were given to do their work.

    The restrictions had an impact on their work, but also may limit the impact their research could have for others.

  6. This is a most important issue for all libraries to consider. To adopt policies calling for permission to publish, the library is not only imposing an artificial layer of restrictions, but it is also putting itself where it should never be: practicing law. For the library to determine that someone may or may not reproduce anther’s work, the library is effectively stating a legal conclusion to a third party. We learn at the beginning of library school not to give legal and medical advice. At the core of a good policy (albeit under a clumsy copyright law) is the position that users are responsible for clearing whatever permissions are needed, and unless the institution in fact is the rightsholder, the library or archives will neither grant nor deny permission.

    Donor restrictions are another story. They should be avoided, but sometimes they are part of the price of acquiring the collections.

    Thanks for the insightful column all the good comments,
    Kenneth Crews

  7. Jeffrey D. Marshall says:

    I agree that it’s time to let go of permissions policies, or drastically limit their scope. However, it should be noted that permissions requirements did not come about solely–or even primarily–because libraries wanted to control use of materials, but because publishers demanded permission letters from authors. I’ve been through this maddening process as an author myself. Many libraries have provided the letters simply as a courtesy.

  8. Hi, thanks for writing this article, and thanks for the commenters–because of this discussion we’re revising our permission to publish statement. #forward

  9. Traditionally archival materials consist of folders and boxes of mixed materials. These can be letters, manuscripts, published items, pictures, postcards, and the like. Every item may and may not be under copyright, under some form of literary copyright, or may have had the copyright assigned to the library or not. Since we don’t describe materials at the item level, and because public domain changes each year, it is unreasonable to insist that all materials be marked on the inventory. Also we don’t process papers and collections by separating materials based on public domain or copyright. The ‘getting permission to publish’ provides a mechanism for archivists and archives staff to assist the user in identifying what materials they’re using that fall into public domain and what does not. And identifying what is and is not in public domain is equally tricky. I’ve noticed public taxpayer-supported college and universities placing copyright notices on their publications, when we would have argued that government publications are in public domain.
    The quasi-public United States Postal Service, which will argue that it is a government agency, nevertheless has a policy that prevents us from reproducing the images of stamps on their website without their written permission, though images of stamps before 1971 are considered public domain.

    Dean DeBolt

    • Rick Anderson says:

      Hi, Dean –

      Please note that I’m not suggesting (let alone insisting) that the copyright status of individual items be marked on the inventory. What I’m suggesting is that if a gift comes with donor restrictions, those restrictions be noted on the finding aids. That’s a very different proposition.

      As for the issue of “public taxpayer-supported college(s) and universities placing copyright notices on their publications,” it’s important to understand that under copyright law, there is a very big difference between documents produced by government employees and those produced by taxpayer-supported institutions. If you’re a government employee, then what you write as a part of your job duties enters the public domain automatically. But the faculty and staff at public universities are not government employees, and the things they write on the job do not typically enter the public domain automatically. In most cases copyright is either by the writer, though in some unusual circumstances the documents are considered works for hire and copyright is held by the institution.

  10. I must first say that I lean towards Mr Anderson’s position on the grounds of library ethics. However, I also have to agree with some of the points brought up by Dean DeBolt. While I agree our archives does not have the right to *restrict* people from quoting, etc., and researchers do not necessarily need permission from us, archival collections are often NOT ‘public domain’ (which by definition means that they were originally copyrighted and published, but have now moved to public domain by their age). Often, collections (which are also, as DeBolt points out, ‘collections’ of mixed materials) are personal papers and memorabilia. Personal correspondence, for example, requires the permission of BOTH parties, a fact of which even the holding institution may be unaware. While the point about public domain material is well taken, and the context of the article is directed to librarians and archivists, actual practice nonetheless assumes a very informed audience.

    At my own institution, our most heavily used collection consists largely of individual photographs compiled by collectors on a theme of maritime history. Some of the photographs are by professionals, and some are in the public domain, but many are not. Others are mere snapshots, casually given with no understanding by either the donor or the receiver that the question of ‘ownership’ was even a “real thing.” Asking a researcher to seek permission allows the archivist to identify to the researcher where there are potential conflicts with others’ rights.That is entirely separate from the issue of charging fees, or asking that the author/researcher cite the location of the physical entity so that others may examine it for themselves.

    • Rick Anderson says:

      While I agree our archives does not have the right to *restrict* people from quoting, etc., and researchers do not necessarily need permission from us, archival collections are often NOT ‘public domain’ (which by definition means that they were originally copyrighted and published, but have now moved to public domain by their age).

      This is true, and it’s a valid point. My column doesn’t really deal with the difficult question of determining copyright status. The points I’m making here really apply only where the materials to which we’re restricting access are clearly in the public domain: 19th-century (or older) photographs and manuscripts, pre-1925 publications, etc.

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