Dear listmembers,
I need others
thoughts and wisdom pertaining to a particular situation that has
recently been
brought to my attention. I have a question(s) concerning photocopy
access of
public domain materials, publishing, and use fees. Sorry this is so
long, but
this has spurred questions I have been dwelling on for quite some time
and it
involves several different issues.
<>
<>Here’s the situation. We supply photocopies of sheet music
to researchers (adhering to copyright law) for a fee. We don’t have our
sheet
music collection digitized and on the Web. A “researcher” requests and
pays for
multiple copies of sheet music, all of which are in the public domain.
We
photocopy the sheet music and stamp it with a stamp indicating that it
came
from our collections. The patron then posts digital images of the
photocopies
on a website (he takes off the stamp). He does
give credit to our institution. He did not
indicate that he wanted to digitize and post images of the music on a
website
when he ordered the photocopies.
<>
Is there anything
“wrong” with this? On one hand, I think the patron is trying to do the
right
thing, he is trying to give access to a genre of music (ragtime) and
compile a
comprehensive site listing as many titles and where the originals can
be found
as possible. If a library or archive has a digitized version available,
he
links to the site. He is only digitizing photocopies of music not
already found
on the Web. And he is giving credit to each repository where the
original is
held. The originals are all in the public domain, he can do whatever he
wants with
the content.
<>
On the other hand,
aren’t we entitled to a use fee? Does putting the photocopies on a
website for
public use equate to “publishing”? If someone wanted to publish an
image of a
piece of public domain sheet music from our collection in a book or
film, we
would normally charge a fee for supplying the digital image,
transparency, or
whatever format, along with a use fee. Are
we within our rights to request a use fee from the above patron for
publishing
the sheet music on a website?
<>
After listening to
Peter Hirtle’s plenary speech at SAA in 2003 (later published as Archives or Assets?
http://www.archivists.org/governance/presidential/hirtle.asp) where he
discusses control of public domain materials by museums and archives, I
am not
sure that we can charge a use fee. This is from his article:
<>
“In addition to using their control over the conditions of
access to unique physical items to control subsequent use of those
items, some
museums (and some archives) try to enforce a monopoly on reproductions
of the
unique public domain items in their collections.”
<>
I also understand that we hold no copyright in the public
domain sheet music or in the photocopies themselves. Again from Mr.
Hirtle: “In
Bridgeman v. Corel, however, the court held that exact
photographic
copies of public domain works are not themselves copyrighted because
they are
not original.”
<>
Another wrinkle in
this situation is that another repository involved has refused to
photocopy any
other sheet music for the patron since they are in the process of
digitizing
their collection and they want to be the ones to present their holdings
through
their website. The patron argued that the library could not deny access
to their
collection, but the university’s lawyers held that the library did not
have to
provide photocopies to patrons, that providing photocopies is a service
different
from providing access.
<>
Now this patron has requested more photocopies from us. Any
suggestions on how you would respond?
Lucinda Cockrell
Coordinator of Research Collections
The Center for Popular Music
MTSU P.O. Box 41
Murfreesboro, TN 37132
615/898-2449 FAX 615/898-5829
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