In 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that are rare or highly valuable, or that have a particular relevance to the host institution, but also rare and unique unpublished documents in a variety of formats.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.