Copyright fraud, special collections, library mission

At the recent DLF forum,Melanie Schlosser gave a very interesting presentation entitled “Whose Stuff Is It, Anyway? A Study of Copyright Statements on DLF-Member Digital Library Collections” I hope Schlosser publishes this as a written paper, not just slides.

Basically, Schlosser found that copyright statements on items in library digital collections were often mis-leading or outright inaccurate.  Schlosser suggested that libraries have a responsibility to make these statements accurate both simply to be providing accurate information, and to further libraries mission to educate users as to their actual rights under copyright and how to recognize “copyright fraud”, when a publisher tries to mis-represent their copyright as stronger than it is.

Schlosser gave libraries the benefit of the doubt in suggesting that most of these errant copyright statements were inadvertant, or due to lack of resources (or lack of information) to assign accurate statements.  I think this is probably right in most of the categories of errant statement she found,  determining copyright is always a mess to deal with.

But there’s one category where in my opinion (not necessarily Schlosser’s), libraries are actually fairly intentional about copyright misdirection.

Selling what you ain’t got

That is, when libraries try to convince users that they are legally obligated to pay the library for “commercial use” of images that the library does not have a copyright (or a license) to in the first place.   This seems to be a fairly common business model in special collections (and museums, for that matter, which I know even less about).

Some of these materials may be in the public domain, which would mean that someone would generally have the legal right to use the image however they want (including commercially) without permission from anyone.  Other of these materials may be in copyright, but the copyright is not held (or licensed) to the library in the first place — which would generally mean that you would need someone’s permission to reproduce the work, but that someone isn’t the library, and getting permission from the library wouldn’t give you any more legal rights than you had already. (And it’s not always clear which is which, even to the library; the difficulties of figuring out copyright existence and ownership were addressed in another context in another DLF presentation.)

Yet special collections have long funded themselves by convincing commercial users that they need to pay the library to use the materials commercially.  Something that isn’t actually legally enforceable, but who would pay it if you said “We’d like you pay us to use these images commercially, but you aren’t actually legally required to.”  So I think this leads to statements which, while not necessarily outright lies about intellectual property ownership, are generally intentionally misleading, suggesting that the library has the power to require you to pay for commercial use (and unintentionally implying that the library has the power to authorize reproduction, which they usually do not;  this seems legally dangerous to the library if there was an actual copyright holder who cared).

[Libraries could certainly charge a reproduction fee. But once reproduced and delivered, the library has no legal standing that I know of to keep the recipient from re-distributing or reproducing the delivered reproductions however they like.]

Libraries as End-User Representatives

Why is this bad?  Well, there are a couple of immediate reasons. Libraries have a mission of providing accurate information.  And libraries increasingly see themselves as having a mission of educating users to know their fair use (and other) rights under copyright, and recognize when publishers are trying to mislead them into not taking advantage of their rights. (I think this is a good mission).   Misleading practices with special collections run at cross-purposes to these missions, detracting from the efficacy of programs meant to carry them out.

But beyond that, I think there’s a larger issue relating to libraries core missions and justifications to exist in the internet age.

There are lots of information resources available on the internet these days; it’s not like the 20th century when libraries were the biggest information game in town. But most of these information content and service providers have their own business interests, which sometimes align with but may at other times contradict the interest of information consumers — our users and patrons.

Amazon is a great discovery service, but Amazon’s goal is to get you to buy books from them or their partners, and they very intentionally maximize the ability of their website to do that. Google’s various offerings are great discovery services, but Google’s goal is to maximize ad-viewers it can sell it to advertisers, and also discourage people from using competing services.

What other info service and content providers are there acting with no motive but to serve the interests of ordinary person information consumers? <strikeout>Not much of anybody but</strikeout>Well, there’s wikipedia and other community source projects, maybe. But as far as institutions with budgets go, libraries (public, governmental, and academic) and librarians are pretty much what there is.

This is a really important role, especially in our information overload culture, right?  The recent flap about the Elsevier fake journal emphasized that even more.  I think it’s our historic mission — and as a guiding vision is part of our justification to  funders  about why we still need libraries in the age of google, amazon, etc. (Of course, you’ve got to actually follow through and do a good job with it too, a good marketting concept isn’t sufficient).

For instance, every library should have a “copyright librarian”, as some academic libraries now do, charged with educating the users about their rights and responsibilities, and helping them use their rights to get the most from the information landscape.  (In the academic setting, users roles include both as authors (where they may need help standing up to giant publishers with their own interests) as well as information users/consumers).

I don’t really believe in ‘objective’ presentations, every person and institution has biases and a viewpoint. But that’s why it’s especially important to have an information institution representing the interests of users that does not have a business interest in anything but representing the interests of users.

But it would help if we didn’t have a left hand working at cross-purposes to our right. Special collections are the one place where libraries do have a business interest in something other than end-user rights, an interest in fact in trying to hoodwink information consumers into not realizing all the rights they’ve got.  This is a problem.  We must resist the urges that interest leads to.  I realize this is tough, special collections have an established revenue model built on selling something they don’t have the right to sell in the first place. Not easy to change that. But, well,  libraries in the 21st century are faced with all sorts of tough changes to our business models, that’s where we live.

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11 thoughts on “Copyright fraud, special collections, library mission”

  1. This was exactly what prompted the U Cal work on metadata for copyright statements — to get libraries and archives to stick to the facts rather than making up vague statements about having to ask permission before use, etc. However, legal folks in the institutions (archives, museums) insist that the institution that owns the physical copy can require payment or set contract rules for use. A case surfaced here in Berkeley in recent years and the court upheld the archives’ right to forbid commercial use without payment, although the photos in question were in the public domain. (Something like possession being 9/10s of the law.)

    Meanwhile, my favorite egregious copyright notice example is the one I found on a blank book. (http://www.flickr.com/photos/8173982@N07/3523691844/)

  2. Do you have a cite to that case in Berkeley? What court was it in? Wonder in what jurisdictions (if any) it’s precedential law.

    That surprises me as a court decision.

    But I suppose it’s possible the library can enforce by contract what can’t be by copyright. Although I think Schlosser (unless I heard it somewhere else) cited a case involving museums that reached the opposite conclusion.

    And someone told me that in general the law does not uphold enforcing restrictions on _public domain_ materials in particular, in contract.

    But I’m no lawyer. In addition to a copyright librarian, every library really needs some in-house counsel that’s expert in copyright and intellectual property. Or access to a lot of the the time of a university lawyer who is same.

    But the crux of my argument isn’t so much about what a library _can_ do as what it _should_ do. I’d hope that a library would use such counsel to figure out how to get the most the rights for users, not to figure out loopholes allowing them to oddly restrict user rights. You don’t want your left hand undoing what your right hand does, you know?

    And, at any rate, if they have some non-copyright way to enforce those payments legally, they still need to make it clear what their legal basis is, and not even _imply_ that it’s copyright, to avoid mis-educating users about copyright.

  3. Am not having luck finding the court case Karen remembers on Google (gee, maybe Google’s not the best tool for every job, especially when you don’t know what you’re doing, but not knowing what I’m doing I don’t know a better tool), but the Yale library is refreshingly candid:

    If Yale owns the copy only:

    If Yale owns a copy of such a work, but does not own the copyright, Yale has no right to grant permission to publish (or charge for such permission) and the researcher should be so informed. Yale also cannot deny to someone else the right to publish since Yale does not own the copyright or force a researcher to credit a Yale special collection should they publish. However, Yale can deny access to the work entirely which effectively withholds from someone else the right to publish since they have no access.

    If Yale owns the copy, but the copyright has passed into public domain:

    If the copyright has passed into the public domain, Yale may charge for access to its copy, but it cannot request that the researcher apply for permission to publish it. Although not tested in court, Yale may be able to permit access to a copy in the public domain but deny permission to publish it, if Yale itself is going to publish the “copy” in the foreseeable future.

    from http://www.library.yale.edu/special_collections/copyright.html

    That page just answers the question in terms of ‘researchers’ though, it doesn’t address the practice of charging extra for ‘commercial use’ of things you don’t own copyright of. I can’t see how that would be any different.

  4. Thanks Karen, that makes sense. Contract law, not copyright. Yeah, if you sign a contract to access the collection, then I guess they can restrict you however they like.

    I had heard something about some cases where you _can’t_ restrict public domain rights with contract, but I’ve never really gotten to the bottom of that. Although I note that Mary in a comment to her own blog posts supplies some of the (conflicting) case law on that issue. It appears to be not entirely settled.

    Note that, as Mary Minow says (I love Mary Minow’s stuff), the contract is only binding on the person who signed it, not any downstream copiers.

  5. Thanks for moving the conversation along, Jonathan! This is exactly the kind of thing I was hoping my presentation would engender.

    WRT contract law: I deliberately didn’t go into much contract law during the presentation (or in the paper), because it’s such a huge quagmire and I didn’t want to overwhelm folks. It is tempting to root for some sort of copyright-trumps-contract precedent in the courts, but I think it is both unlikely and ultimately unhelpful. Not only do courts seem to be upholding contracts across the board, they are also recognizing binding contracts in situations that I would have thought didn’t create one. (For example, recognizing a terms of use statement on a website as a contract, even if the user never saw it or agreed to it. I can dig up some citations if you’d like.) Even if this were not the case, copyright law relies on contract law to function; if you couldn’t give away your copyrights in a contract, you would be unable to transfer rights to a publisher.

    WRT future momentum in this area: The Cornell announcement is really heartening, as has been all of the positive feedback I’ve received about the topic. I still believe that some sort of best practices effort would be the most useful outcome of all of this, but I’m not sure who would be the most likely candidate for sponsoring it. (DLF? CDL? Someone else?) Thoughts?

  6. This type of debate brings up a lot of confusion between copyright (which is pretty clear) and licensing access, which can be more vague.

    Why does a library pay for access to 19th JSTOR publications? Generally speaking they are not in “copyright”. The subscriber is paying for access to the digital copy (which is NOT saying that the digital copy is under copyright protection). Similarly, all types of commerically available digital collections (e.g. Alexander Street press, ProQuest newspapers) are all LICENSING copyright FREE materials and greatly limiting (to greater and lesser degrees) the reuse (commercial and non-commerial) of that content.

    I see no difference (legally) between what JSTOR does and what a small historical society does when it licenses content.

    If my library “owns” a physical version of a public domain photograph, I COULD charge a user to:
    – create a digital copy
    – license the use of that digital copy for commercial or non-commercial use

    As noted above, once the digital copy is “out of the barn”, there is no legal copyright restriction on it.

    There would still, however, be legal rights pertaining to the license agreement (thus, if our licence said you can’t restribute the digital copy, I would have a case – with a host of caveats as to what that case might be).

    Museums don’t always ban photography for conservation reasons, but to keep unauthorized copies from being made. Similarly, there was a case where a photographer was sued by the R&R Hall of Fame for using an image of the building – I believe this was revolved that commerical photography of the building wouldn’t be allowed on the grounds of the museum.

    So, that said, libraries certainly have the LEGAL right to restrict use based on LICENSING, but not on the grounds of COPYRIGHT.

    Now, the bigger question is, if libraries can digitize content and balance the revenue stream generated by licensing (a big, but not insurmountable task), SHOULD the public domain content be set free? My personal opinion is, OF COURSE!

  7. Another important point is that if libraries ARE going to restrict reproduction through licensing/contract, it’s important that they’re clear what they’re doing, and not imply (or even say directly) that it’s got something to do with copyright.

    I agree it would be better if they didn’t at all.

    I wonder how many special collections actually have signed agreements from researchers who they are attempting to enforce these licensing restrictions on? It’s possible they could get by in court with an implied contract or clickthrough of some kind, but it would be better if they actually had a signed contract — better legally, and better educationally , because we want users to learn to recognize when they’re giving up rights via a contract, right?

    But if you start making people sign contracts before they can even SEE something (because you want to make sure you can enforce your restrictions), boy, it really does make one think maybe libraries should just get back to their mission of facillitating instead of restricting use.

    Also, a library selling via contract the ‘right’ to reproduce a public domain work is one thing. What about selling via contract that ‘right’ for a non-public domain work in which the library does not hold and has not been assigned any rights? Is the library itself putting itself at greater legal risk than if it just gave away such a reproduction, and/or just charged a service fee for reproduction? I suspect so, but I don’t know.

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