Asserting Rights We Don’t Have: Libraries and “Permission To Publish” | Peer to Peer Review

"In late June, a minor brouhaha erupted when the library at the University of Arkansas suspended reporters from the Washington Free Beacon, an online newspaper, from using its special collections. The reason given by library administrators was that on multiple occasions the newspaper’s reporters had published content from those collections without asking permission, as library policy requires. Much has been made in the right-wing press about the politics supposedly surrounding this conflict: in the incident that resulted in the Free Beacon‘s ban, it had published interview transcripts that put Hillary Clinton in a bad light; the Free Beacon is a conservative publication, and the library dean is reportedly a donor to the Clinton Foundation. But while the political issues in this particular case are interesting and may be worthy of discussion, I want to focus on a different issue: the practice of making patrons request library permission before republishing (in whole or in part) content drawn from documents in our special collections. It’s in the nature of special collections that their holdings are, well, special. They generally include not only formally and commercially published documents that are rare or highly valuable, or that have a particular relevance to the host institution, but also rare and unique unpublished documents in a variety of formats. Some of these will be under copyright (as is the case with the tape recordings from the University of Arkansas’ library); others will be in the public domain. In the case of documents that are under copyright, it’s relatively rare—though not unheard-of—for the library to be the copyright holder. Where the library is the copyright holder, the library is completely within its rights to require patrons to ask permission before making use of the documents in question that goes beyond fair use. And where the document is under a copyright held by someone other than the library, it makes sense for the library to let patrons know that the law puts certain limits on their use of the document. If the materials have been donated or lent to the library under restrictive terms, the library is of course obliged to abide by those restrictions as well. What is much less clear to me is how a library can justify (in the absence of a donor restriction) requiring patrons to ask permission to make lawful use of the content of materials that are in the public domain ..."