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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