substantial investment by acquiring and preserving printed material and then converting that material to digital form. By requiring payment for certain uses of that material, we hoped to recoup some of that investment. So the previous guidelines allowed only personal or research use. Commercial or scholarly use of the material—such as republishing via print on demand or including a page in a university press book or scholarly article—required the permission of the library and a possible payment. Different library units had differing policies: Catherwood Library in the School of Industrial and Labor Relations and the Rare and Manuscript Collections had procedures similar to the general Cornell guidelines, whereas Mann Library allowed free use of its scans. What were the options Cornell considered when developing the new guidelines? We identified three options: attempt to restrict in a legally enforceable manner certain uses of digitized material, and thus preserve a possible revenue stream post an aspirational but unenforceable restriction or make it free to use. We went with the third option. We get into the specifics later, but our library felt strongly that this was the right choice both for philosophical and logistical reasons. How would a legally enforceable restriction be implemented? Copyright is normally used to control subsequent use of written material, but this material was in the public domain and therefore not under copyright restrictions. Scanning alone is not creative enough to warrant its own copyright, and so we have no copyright in scans of material in the public domain. We could, however, have used a contract with potential users that would legally restrict the downstream use of public domain scans. Some institutions, for example, have click-through licenses on their Web sites that require users to agree not to use or redistribute the scans for commercial purposes. Alternatively, some institutions have created a “Terms and Conditions” statement, also called a “browse-wrap” license, which governs subsequent use of the material. What sorts of problems did you see with this approach? We identified a number of problems: Browse-wrap licenses are of uncertain enforceability, and with either a click-through or browse-wrap license, we would have had to be willing to bring legal action if we found a violation. RLI 266 2 Removing All Restrictions: Cornell’s New Policy on Use of Public Domain Reproductions ( C O N T I N U E D ) OCTOBER 2009 RESEARCH LIBRARY ISSUES: A BIMONTHLY REPORT FROM ARL, CNI, AND SPARC
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