Hypothetical: A piece of sheet music is published in the United States in 1911; as such, the work is in the public domain. A published version of the sheet music is held by ABC Library in the Mid-Western US, and they appear to be the only source for the music (other copies have disappeared or have been lost over time or are sitting in someone’s attic and not easily available). You want a copy of the public domain music but ABC Library insists you sign an agreement to not further reproduce or digitize the sheet music (their reason apparently is a desire to remain the exclusive source for the music in an effort to obtain funding for them to digitize their entire unique collection; alternatively, the library also seems to indicate, without providing details, that the donor of the print sheet music has placed restrictions on the use of the sheet music).
Question: Can a library place restrictions on what a patron can do with public domain materials?
The foregoing situation is actually not hypothetical and is a situation I have faced with an American university music library (with my goal being to digitize the public domain sheet music to make it available (for free) on my website at http://www.ragtimepiano.ca).
My initial thoughts (and I am, of course, no expert on US law) are as follows:
1) Putting the law aside, I think there are serious ethical issues. The American Library Association has promulgated various ethical obligations that its members are encouraged to follow, including making information available, particularly public domain materials.
2) Early U.S. case law suggests that federal copyright law pre-empts any attempt by state contracting or licensing law to restrict or modify the federal copyright law. Stated differently, rights provided by copyright law are governed by federal law, not state contracting or licensing law: Sears, Roebuck & Co. v. Stiffel, Co., (1964) 376 U.S. 225; Compco Corp. v. Day-Brite Lighting, Inc., (1964) 376 U.S. 234, 237; Vault Corp. v. Quaid Software Ltd., 847 F.2d 255, 270 (5th Cir. 1988). As such, since the materials in question are clearly public domain under federal copyright law, any attempt by a library to place restrictions on the use of this material would be unenforceable under the “federal pre-emption doctrine” (in addition, the library would not like not gain copyright in the pre-1923 music by merely digitizing it: Bridgeman Art Library v Corel ,36 F. Supp. 2d 191 (S.D.N.Y. 1999).
3) More recent case law where courts have enforced (state) contractual/licensing terms in favour of developers of CD-ROMs with public domain information on them are likely distinguishable and would arguably not likely apply. An example of this sort of case where state law prevailed is ProCD, Inc. v. Zeidenberg, 86 F.3d 1447, 1449 (7th Cir. 1996). In ProCD, the CD-ROM developer compiled lists onto CD of business telephone listings that were in the public domain and “sold” their CDs under a shrinkwrap license that restricted redistribution. I think it is quite reasonable that courts protect the CD-ROM developer in this case by prohibiting further copying of the CD-ROM by customers in order to protect the investment of time and cost the developer made in compiling the entire CD-ROM and to protect the “value-added” information the developer provides through the compilation of public domain data. This is distinguishable from a library providing single photocopies of public domain pieces of sheet music where there is no investment of time and cost in providing single photocopies of sheet music (where the cost of photocopying and mailing is included as part of the transaction as cost recovery). As such, I don’t think the ProCD case applies in my situation due to the qualitative differences between licensing CD-ROMs with vast amounts of information that has been compiled and which has value added search features added to it versus the “sale” of single copies of public domain sheet music (however, a library that creates and licenses for sale a CD-ROM with hundreds of individual pieces of public domain sheet music might be protected by the principles in ProCD since a court might recognize and protect the library’s investment of time and money in creating the CD-ROM, but even in that situation, if the library is not otherwise adding value-added information above and beyond the public domain content, it is not obvious that ProCD applies).
In looking into these issues, I came across the following article by Peter Hirtle called “Archives or Assets?” available online at http://www.archivists.org/governance/presidential/hirtle.asp. In that article, Hirtle argues four reasons why efforts by libraries and archives to use their physical control over public domain materials in their collection to impose quasi-copyright control over them are doomed to failure.
The following links also contain useful information from which I derived most of the points above:
1) Aug 25, 2005: Berkeley Historical Society lawsuit – Can a library, museum or archive charge money for photos that are in the public domain?
2) Jason Mazzone, “Copyfraud” (2006) 81 NYU Law Rev 1026
3) July 30, 2004: The Public Domain, Digitization, and Copyright http://blog.librarylaw.com/librarylaw/2004/07/the_public_doma.html