More attacks on institutional copyfraud

1.  In writing about the Max Planck study on use of images that I discussed earlier, copyright litigator Ray Dowd rips into the licensing practices of libraries, archives, and museums:

In recently researching a case of Nazi looted art, I have been frustrated by non-profit institutions blocking access to copies of documents necessary to trace Nazi-art looting practices in Switzerland. One institution was the Getty blocking access to an official government report, another a German museum claiming that I had to get copyright permission from a deceased Swiss art dealer to make copies of his correspondence with the Nazi regime. Each institution was informed that the documents were for use in an impending court case.

My feeling is that any restrictions on scholarly use of public domain materials by an entity that enjoys tax-free status is presumptively a violation of the public trust, and a restriction of the public domain that conflicts with the complete preemption of copyright law.  (emphasis mine)

The documents that Dowd cites may have been copyrighted.  His post, though, reminds us that cultural heritage institutions must make sure that they are not themselves creating unreasonable boundaries to scholarship.

2.  Sage Ross, a graduate student in the History of Science, has a blistering attack on the Huntington Library's efforts to charge different prices for different uses of a public domain work: a photograph of Charles Darwin.  He "politely but forcefully called them out for abusing the public domain and called their policy of attempting to exert copyright control over a public domain image 'unconscionable'."  Others have picked up on the story here and here.  (Thanks to Klaus Graf for the second link.)

I don't have any problem with the Huntington charging whatever it wants for digital files of public domain works.  And if it wants to charge different fees for different uses, that is its prerogative.  Trying to impose limitations on down-stream uses of public domain works is more problematic.  They would be difficult to enforce, inconvenience the good guys who respect them but do little to stop the bad actors, and in the long run are pointless.  For example, this image is supposed to be a rare photograph over which the Huntington might have a monopoly.  But I found 21 examples on the web using TinEye, one of which appeared in the NY Times and is credited to "Richard Milner/European Pressphoto Agency."

3.  Jason Mazzone's book Copyfraud and Other Abuses of Intellectual Property is due out from the Stanford University Press in 2009.  Mazzone's 2006 article on the topic erred in suggesting that most libraries and archives claim copyright (rather than contractual rights) over the use of images from its collection.  Nevertheless, Mazzone's indictment of the practices of cultural institutions is powerful.  Libraries, archives, and museums will need to have reasonable practices in place if they wish to avoid criticism when the book does appear.

Comments

[Kristin Eschenfelder]

For interested audiences, its worth linking back to your earlier coverage/commentary on the Berkeley Historical Society case:

http://blog.librarylaw.com/librarylaw/2007/04/minow_the_centr_1.html

http://blog.librarylaw.com/librarylaw/2005/08/can_a_library_m.html

[Sage Ross]

Regarding the Darwin photo: there are two originals (this according to the Huntington), and it looks like the NYT blog version is based on the other one. There are also copies published as postcards and cartes de visite in the early 20th century (like the one you include here).