(By Peter Hirtle)
By now most archivists and many librarians will have heard something about the controversy concerning the use of material found in Special Collections at the University of Arkansas. Researchers from the Washington Free Beacon (WFB) web site requested and received copies of audio tapes found in a collection. It published some of those audiotapes online. It did not, however, first seek permission to publish the items, as library policy requires. Its reporters' access to special collections was therefore suspended (“banned,” in the words of the site). You can find online an overview of the controversy. The WFB’s initial coverage is here and here; the response from the University of Arkansas is found here. Coverage that includes some of the documents discussed below can be found on Business Insider.
All archivists would agree that researchers who do not follow the policies to which they have agreed can be kept from the reading room. For example, a reporter who insists on using a fountain pen when a repository required that only pencils be used (in order to protect original material) should have her access suspended. I don’t have a problem with Arkansas suspending WFB’s research privileges.
The controversy does, however, raise interesting issues about archival practice relating to reproductions and permissions. As the University of Arkansas repeatedly notes, it policies “are the same policies and procedures followed in innumerable academic libraries across these United States."1 A detailed analysis of Arkansas’s procedures can therefore shed light on a common archival practice. The controversy has brought to light source material that make such an analysis possible. While Arkansas’s documentation of its policies was admirably complete prior to the controversy, the subsequent articles, letters, and emails have fleshed out the justification for its permission to publish policy. There is therefore a rich trove of source material from which to work. One newspaper article cited emails that suggest that Arkansas itself is engaged in a review of its permission practices. This discussion may therefore be of benefit to that review.
The Arkansas case study demonstrates that archival “permission to publish” is a practice that is both poorly understood and which can be detrimental to the donor, the repository, and the researcher. Following this standard archival procedure, as the University of Arkansas suggests, is not "good business practice...[that] makes operations run smoothly." It is time for repositories to get out of the "permission to publish" game and leave permissions to the copyright owner.
“Intellectual property rights”
The University of Arkansas requires that patrons complete a permission to publish form before publishing material from its collection. On what basis is that demand made? The letter of 17 June 20014 from Dean of Libraries Carolyn Henderson Allen to Matthew Continetti of the WFB suggests one possible justification. It demanded that the web site “cease and desist your ongoing violation of the intellectual property rights of the University of Arkansas with regard to your unauthorized publication of audio recordings…”
One of the exclusive rights of a copyright owner is the right to control the reproduction and distribution of a work. If the university owns the intellectual property in the recordings, it would be free, as is any copyright owner, to require prior permission to reproduce them. Furthermore, it would be free to demand that the web site cease further distribution of the work if its copyright has been infringed. It could even issue a DMCA takedown notice to either the web site or to the ISP that hosts it. It might make sense for the university to have a standard form to request permission to publish material whose copyright is owned by the University of Arkansas and for which permission is needed, i.e., when the proposed use is not a fair use. (One would hope that a university copyright owner would not demand permission for uses that would otherwise be fair.)
In this case, though, there is no indication that the University of Arkansas holds the copyright in the recordings. The finding aid to the collection is silent on copyright ownership. Subsequent news reports revealed that the deed of gift for the collection was missing.3 The university has since acknowledged that Roy Reed owns the copyright in the material.4 And Reed is quoted as being unsure about copyright ownership, speculating that it might belong to Esquire magazine, for whom he conducted the interviews.5
WFB challenged the library’s assertion of intellectual property rights in its lawyer’s response of 19 June 2014. The letter notes that “any reference to a claim based on your ‘intellectual property’ is patently frivolous.” It seems as if the university may agree; it has made no subsequent assertion about infringement of "intellectual property rights."
Acting as if you own intellectual property rights in content when you don’t own the copyright is a form of copyright misuse that Jason Mazzone has labeled as “copyfraud.” Copyfraud in an archival repository is especially pernicious because it works against the interests of the real owners of copyright. If one can secure permission from a repository that claims it has intellectual property rights in material in its collection, a researcher may assume that there is no need to seek further permission from the real copyright owner, regardless of what the repository may say. Who could imagine that there are two owners of "intellectual property" in an object whose permission must be sought? Most of all, if the repository is confused about the nature and scope of its rights in a collection, what hope is there that the researcher will get it right?
Reading Room Rules and Regulations
As is the case with much material found in a repository, the university does not have an intellectual property interest in it. What it does have is physical ownership of the collection. And it can use its ownership of the physical material to impose quasi-copyright-like permission restrictions on the material. It does this via its contractual agreement with the researcher.
To gain access to the reading room (or to be sent reproductions by mail), one must first complete an “Application for Research Privileges.” In that application, one must “agree to abide by the rules and procedures of Special Collections as set forth in its Reading Room Regulations." The Reading Room Regulations specify that "Publication of any material found in the manuscript collections of the University of Arkansas Libraries Special Collections is permitted only after a completed 'Permission to Publish Request' is approved and signed by the Head of the Department."
Note that the agreement specifies that permission is required for "any material" in the collections, not just copyrighted material. Nor is it restricted to material whose copyright is held by the University. That is an indication that this is a regulation that is based on physical ownership rather than copyright.
Limitations of Contract
The ability of repositories to restrict “downstream” use of material through contract rather than copyright is sharply limited. For example, it seems that the copies of the audio tapes at issue in the Arkansas controversy were made for an independent researcher, Shawn Reinschmiedt. Reinschmiedt appears to have been working for the WFB, which would suggest that the WFB is bound by agreements that its agent signed. In addition, the WFB reporter is reported to have worked directly with Reinschmiedt in the reading room selecting the material for duplication.
But imagine that Reinschmiedt was a purely independent actor. After uncovering the tapes and securing copies, he decided to turn copies over to a news agency for its review. That agency then elected to publish the tapes. The news agency in that scenario signed no agreement with the University of Arkansas and has no obligation to follow its policies and procedures. Unlike copyright, which everyone must follow, a contractual agreement is binding only on the party that comes into the Arkansas reading room.
Permission to Publish
Permission to publish forms must be functionally important to repositories if they are willing to risk confusing researchers about the repository’s rights in material and potentially engage in copyfraud. Censorship does not appear to be one of Arkansas's justifications. There is no discussion its site of situations in which permission might be denied, and the university reports that it has "never denied a permission to publish for a patron." The only thing that seems to matter is that the “permission to publish” form is signed. So what is found in this form that is so important?
It is difficult to understand why the university insists on the use of the form. It requires just two things of signatories:
- It requires that one "cite the source of the material as described in the Special Collections 'Citation Guide.'"
- The requestor must arrange to have "the publisher send a gratis copy of the publication to Special Collections." Requiring payment - in this case a copy of the publication - may raise liability issues for the repository, as is discussed below. It also contradicts what is required by the Application for Research Privileges, which simply states that "Special Collections requests a copy of the book or article should your research here result in a publication. If a copy is unavailable, please provide us with a bibliographical citation and a copy of each page on which material from this department is cited." Which approach is binding: the request in the application that is signed by the researcher, or the reference in the researcher application to the Reading Room regulations? The latter requires that a permission to publish form be completed, and that form requires, not requests, that a free copy of a book be sent.
The applicability of the permission to publish form is also weirdly restricted:
I understand that this permission will be valid only insofar as the University of Arkansas, as owner or custodian, holds rights in the material, and does not remove the responsibility of the author, editor, and publisher to guard against infringement of any rights, including copyright, that may be held by others.
What do they mean when they say that the permission "will be valid" only when the University of Arkansas owns rights in the material? In the Reed papers case that is at the heart of the controversy, the University does not hold copyright in the material. That means that the WFB’s access was suspended because it did not sign a document that the University says would not be valid even if it had been signed. I think what Arkansas is trying to say is "if we own the copyright, you have our permission. But if we don't own the copyright, you need to get the permission of the copyright owner - and you still need our permission." But the form is unclear.
Justifications for the Permission Requirement
What justification could there be for having a permission requirement? In a letter to the Boston Globe, Laura Jacobs, the associate vice chancellor of university relations at the University of Arkansas, cited three reasons why requesting permission to publish is important:
- It "is important to record keeping." What record-keeping is involved and why that record-keeping is important, is unclear. I can't think of any.
- It can trigger "a conversation between the library and a researcher about potential copyright infringement." The Citation Guide does that already, with a long discussion of copyright at its start. The photocopy request form stipulates that "I understand that I am responsible for complying with the laws governing copyright and literary property rights." The scanning request form goes further, stipulating that "I understand that I must also obtain permission from the original photographer/creator of each item." Whether further discussion could place the repository itself at risk is discussed below.
- It "allows a library to track the use of its material." At first glance this is desirable, but in practice makes little sense. For example, there are probably hundreds of web sites that have cited, quoted from, or reproduced the Roy Reed material since it was published by the WFB. Even if the WFB had completed the permission form, there is nothing in the form that would allow the University of Arkansas to track this third party use. And tracking appearances of the use of material has been a limited priority for libraries. For example, according to a WordCat study, only 130,000 records out of the 300+ million Worldcat records use the 581 field that tracks "publications about the described material."
A subsequent letter from Allen and Nutt expands on the tracking argument: "[W]e also want to track use and keep the donors of our collections apprised of how their papers have been used. It’s good customer relations."6 I am going to assume that Arkansas would meet this goal in a way that protects patron confidentiality. But might not a simple request that states that the library would like to be informed about publications be enough, as the application for research privileges form requests?
Library as Copyright Police
The Allen and Nutt letter also hints at yet another reason for the permission to publish form when it introduces the tracking discussion with this odd phrasing: "Disregarding any legal onus we might have to protect copyright..." Are they disregarding this because it doesn't exist (but then why bring it up?)? Or are they hinting that the library does has a legal responsibility to serve as the "copyright police" and is legally obligated to prevent copyright infringement?
This would be a dangerous position for any library to argue. In effect, it is arguing that the library may have legal liability for secondary infringement for the actions of our patrons. The library profession has a long history of resisting calls to serve as "copyright police." To suggest otherwise only increases, not decreases, the potential legal liability of libraries.
An Unstated Justification: Revenue?
At many institutions, permission to publish is only granted upon the payment of permission fees. While not explicitly tied to the “permission to publish” form, Arkansas does hold out the possibility that it might charge users who wish to publish material from the collection in its “Publication Fees” schedule:
Publication of images from holdings in the Special Collections of the University of Arkansas Libraries requires permission from the department as well as from the holder(s) of copyright. Fees may be charged for such use. Publication includes print media, audio‐visual media, broadcast media, web sites, exhibits and displays, or any other form of distribution. These fees are separate from any which might be assessed by the copyright holder.
To its credit, it does not appear that that Arkansas has criticized and/or suspended WFB for failure to pay fees for publication. I have found no discussion of publishing permission fees in the documents about the controversy. But I also have not found any documentation about when the university would elect to charge such fees and when it waives them.
The Repository’s Potential Liability for Reproductions
The issue of whether the university requires payment in return for its permission to publish, either through the requirement for a gratis copy of the work or via payments of fees has implications with regard to the repository’s own liability. When a repository makes a copy of a copyrighted work for a researcher, without the permission of the copyright owner, it has potentially infringed on the copyright owner’s exclusive rights of reproduction and distribution. The copyright owner could bring legal action against the repository.
There are two possible defenses that the repository could invoke. First, it could argue that the copy it made was exempt from damages by Section 108(e) of the Copyright Act.7 This section allows a library or archives to make a copy of an entire copyrighted work if certain conditions are met. For example, a copy cannot be available for sale at a reasonable price; the request for the copy must be made on a form with language specified by the Librarian of Congress; the library or archives must have no knowledge that will be used for anything other than private study, scholarship, or research; and the copy must become the property of the requestor.
Section 108 also stipulates that the copy not be made for purposes of “direct or indirect commercial advantage:” 17 U.S.C. § 108(a)(1). A library that charges publication fees is arguably accruing direct commercial advantage from its reproduction. If a copyright owner elected to bring an infringement suit against the repository for making a copy, it is unlikely the repository would be able to use 108 as a defense.
There is another way in which the use of a “permission to publish” form could increase the repository’s potential liability. Remember that one of the justifications for the use of the permission to publish form is that it can spark "a conversation between the library and a researcher about potential copyright infringement." Section 108, however, stipulates that the library have no knowledge that the copy is being made for anything other than “private study, scholarship, or research.” As soon as the repository learns that the patron intends to publish a copyrighted work, its 108 privileges disappear.
It would seem that Arkansas wants to use 108(e) to make copies for users. The copyright notice required by the section appears on its reproduction order forms. Furthermore, the university requires that users stipulate on the order form that the copies are for “my exclusive use, for the sole purpose of research or study convenience.” Yet as noted above, the payment of publication fees would likely negate a 108(e) defense. Furthermore, the discovery that copies might be used for something other than personal research would also remove the section as a defense. Lastly, Section 108 requires that any copies made “become the property of the user.” The Arkansas reproduction order form, however, states that no copies may be deposited in other repositories. This attempt to limit the ownership rights of the patron may destroy as well the university’s 108 protections. In short, the manner in which Arkansas, and by extension most other archival repositories, implement its reproduction and permission policies may make it ineligible for 108 protections in the event of any suit for direct or indirect copyright infringement.
Of course, the repository could always rely on “fair use” as a justification for its copying. But even with fair use, reproductions that are made for commercial advantage are arguably less likely to be found to be fair. Furthermore, in at least one court decision, the ruling on whether a repository making a copy of an item for a researcher was in part dependent on whether that researcher’s use was fair. Consulting with researchers about their publication plans puts the repository in the unenviable position of having to assess whether any individual researcher’s use is fair. The consultation (and any required publication fees) increases the likelihood that the any reproductions the repository may make for a researcher exposes it to damages for secondary liability (both contributory and vicarious).
A close examination of the “permission to publish” policies of one typical institution demonstrates that they make little or no legal or policy sense. They can confuse researchers (and library staff) about the nature of the repository’s rights in the material. They can place the repository in the unenviable and unsustainable position of having to assess the legality of the researcher’s proposed use. Requirements for compensation (either directly or in the form of complimentary copies of publications) may negate the repository’s normal defenses against a charge of copyright infringement for its copying.
A better approach would be to drop any requirement that researchers secure the repository’s permission prior to publication. The repository would instead provide researchers with copies for private study, scholarship, or research. If a researcher wished to use a provided copy for publication, it should be the researcher’s responsibility to determine if her use is a fair use or if permission of the copyright owner is needed. In some cases, the repository might be the copyright owner and so the researcher would ask the repository for permission to publish. But that should be the only time that repositories are involved with permissions.
This does not mean that the repository should not educate users about potential rights issues in collections. It should make sure that the researcher knows that she is responsible for securing all needed copyright permissions. It should also make it clear that the user should not infringe on the privacy or publicity rights of any subject found in the collection. But this is best handled with disclaimers and with education, and not via “permissions.”
1. Carolyn Henderson Allen and Timothy Nutt, "Rules same for all," Arkansas Democrat-Gazette, 5 July 2014, p. 9B: ""...a permission-to-publish form must be completed. The form is a standard procedure for academic libraries."
3. Jaime Adame, "UA loses deed on journalist’s donated files," Arkansas Democrat-Gazette, 3 July 2014, p. 2B.
4. Allen and Nutt, "Rules."
5. Adame, "UA loses deed." The issue of who owns the copyright in an interview is a fascinating one worthy of its own blog posting. In this case, no one is talking about possible copyright ownership interest of the interviewee, Hilary Rodham Clinton.
6. Allen and Nutt, "Rules."
7. Because the audio tapes at issue were made after 15 February 1972, they are subject to federal copyright protection and hence also the 108 exceptions. And since the tapes do not embody one of the media formats excluded from most of 108 by 108(i), copies of the tapes could be made using 108(e).