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November 06, 2007

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As Karen alludes to, it's the policy at my special collections library, and at many others, that we have the right to restrict subsequent use of reproductions of our materials, even if those materials themselves are public domain. We require permission-to-publish requests for use of those reproductions, and assess permissions fees to commercial publishers. I've never been entirely confident of the reasoning underlying this policy, but no one, either internally or externally, seems to question it.

"Is it common for libraries to create such limitations regarding public domain works?"

I think the easy answer here is: no, it isn't common for libraries to do this. Most libraries leave the copyright decision up to the patron, thus those signs by the copy machines, which essentially tell patrons: It's your decision.

It is, however, common for archives to place restrictions on use of their material, which I believe confounds the public domain question. There are real differences between what libraries have (mostly regularly published materials) and what archives have (often unique materials). But I do wish that archives would find a way to make their materials available without restrictions, since I think they are shooting themselves in the foot by trying to restrict re-use.

The reader is correct to suggest that this is more of an ethical and policy issue than a legal one. At its heart is the question about what a requesting library can do with an item received on ILL.

To my knowledge, this is not discussed directly in the literature on ILL. There are some suggestive hints in the commentary on the ALA's ILL guidelines at http://www.ala.org/ala/rusa/rusaprotools/referenceguide/interlibraryloancode.cfm, however. On the one hand, it is the responsibility of the supplying library to tell the requesting library if there are any restrictions on the use of the material. If the supplying library does not specify that you should not copy the work, perhaps it is ok. On the other hand, the supplying library is encouraged to provide a copy itself when copyright law permits, rather than lending the original.

I have always viewed ILL as a way of getting material to patrons rather than as a means of building one's own collection. I therefore think that the polite thing to do before using ILL in a non-standard way is to ask first. Tell the supplying library that you want a digital copy. See if they would prefer to make it for you, or if they don't mind you making a copy. Ask if they would like a copy of the digital file in return. Treat them the way that your institution would like to be treated. If they say "No problem," then you can act with a clean heart. If they object, then you aren't doing something that might be unethical.

Of course, before you do anything, check with Google's Book Search and Microsoft's Live Search to see if there is already a digitized copy available for free download.

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