Via Karin Dalziel on FriendFeed, I saw a link to Sage Ross’s post Libraries and copyfraud. According to his “About Me” section on the blog, he is a grad student in the History of Medicine and Science Program at Yale, and according to the blog post, he has been working on putting together a collection of portraits of Charles Darwin for a Wikipedia page on Darwin Day 2009. He located an interesting image in the Huntington Library, a distinguished private, nonprofit special collections library in San Marino, California.

I hope you’ll read Ross’s full post, but here is the quick recap of what happened next. According to Ross, the photo was taken in 1881 and published as a postcard around 1908, meaning that there is no controversy as to whether the image is in the public domain. In addition to charging a reproduction fee, the Huntington asked about Ross’s intended use and quoted further fees based on what the use might be. When Ross pointed out they can’t do that with a public domain image, the library said, in effect, “all libraries do this,” to which Ross replied something along the lines of “so what?” It is, he says, a crime called copyfraud.

It’s my understanding that Sage Ross is entirely correct about this. If it’s a photograph of a public domain image, the decision in Bridgeman Art Library v. Corel Corp. applies, and the new photograph is also in the public domain. If anyone can show that his take on the situation is incorrect, I would love to hear about that. I am, god knows, not a lawyer.

I went to library school intending to be a special collections librarian, so this isn’t really news to me. Special collections libraries seem to have these kinds of policies as matters of course. It’s not because special collections librarians are evil snobs. (A few are, most aren’t, but either way it’s beside the point here.) I don’t want to be an apologist for these policies–my sympathies are entirely with Ross–but I think I understand how this comes about.

As Ross says, libraries can charge whatever fees they wish to make the copy and send it to you. Researchers can’t force the library to copy anything, or dictate the price. But why do libraries fail to separate that fact from their authority over the use? I think there are several reasons.

Special collections libraries deal with unpublished collections that are still protected by a very long copyright duration. For manuscript collections, the library may own the copyright as part of the deed of gift, or the library may be the intermediary between the copyright holder (typically the subject’s estate) and the researcher. So in many cases, there are legitimate copyright concerns and the library is justified in asking questions about use and granting or withholding certain rights.

Also, copyright is confusing. Fair use is confusing. It can be difficult for a non-lawyer to keep straight the difference between section 107 and section 108 of Title 17 of the United States Code. Unpublished works and orphan works and foreign publications confuse things even further. It can be hard to tell if something is in the public domain, though tables like Cornell’s Copyright Term and the Public Domain in the United States certainly help.

But it’s not like we do ourselves any favors when it comes to understanding these nuances. It didn’t surprise me a bit that the Huntington fell back on “everybody does this. Go ask Yale!” In libraries, we have a culture of surveying our peers rather than consulting experts. When you start a new service or adjust a policy, is your library more likely to consult to a lawyer to check into the legality of your move, or to conduct a quick survey of what similar libraries are doing?

There is also an interesting mix of the cash economy and the reputation economy at work here. Reproduction fees are one of the few direct revenue streams available to research libraries, so it’s possible that a library could depend on that revenue more than they care to admit. But money aside, libraries also want credit and respectability. The Huntington’s permission to publish policy leads off with restricting use to those “which support the Huntington’s mission of the advancement of learning through research and the production of scholarly works; or for Huntington-approved commercial purposes.” They also expect you to meet “standards of appropriateness established by the Huntington,” and to credit the source properly. This is all to maintain the image of the library. Your special collection isn’t so special when images from your library get cropped, collaged, used for non-approved “inappropriate” commercial purposes. The problem, of course, is that you can’t assert those rights in cases where you don’t have them to begin with.

Lastly, owning the book or photograph or other item feels like it should come with copyrights. After all the library bought the book (or other item) or held complex negotiations with a donor to get it, described and cataloged it, made it findable, kept it at the right temperature and relative humidity and in the best possible condition. Were it not for that research library, it’s possible that the thing you want wouldn’t have survived at all, let alone be available for you to copy. And now you want to waltz in, pay your twenty five bucks for a high resolution scan, and then publish the thing all over the Internet? In the words of Max Fischer, they saved Latin; what did you ever do?

I hope libraries get this straightened out soon. People are becoming more and more aware of their rights to use public domain materials, in part because libraries and cultural institutions are leading the way in making those materials visible on sites like the Flickr Commons. I hope libraries can continue to be leaders in making things available and put behind us customary policies that are regressive (and possibly illegal).