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