Can a library or other document or book repository limit your use of documents that are clearly not subject to copyright protection? The question asked is whether upon entry to the institution, you are forced to sign an agreement limiting your ability to use the documents and particularly prohibiting you from publishing any of the documents. Can this type of agreement be enforced? For example, you go to a library to do research on your family and find a will from one of your ancestors dating from the 1800s. When you entered the library, you had to sign an agreement which specifically prohibited the publication of any of the documents in the library. You take a copy (photograph) of the will and take it home and put it up on your blog. What might happen?
My initial position would be that Federal copyright law supersedes any individual attempt by a none author to limit the republication of any work. Unless the repository owns the copyright to the document, what legal right do they have to prevent you from copying the work for any purpose, public or private? Whose interest is being protected by the blanket prohibition on copying? Who is damaged if the copy is made and published? Why is pubic access to the collection being limited in this way? I think it is just a case of "I have the document therefore I own the document."
Rights to publish a document are exclusive to the authors pursuant to the U.S. Constitution, Article 1, Section 8. Exclusive means exclusive. Denial of the use of a document entirely violates the fair use of the document as provided for in literally thousands of cases in the United States. See for example, Eldred v. Ashcroft, 573 U.S. 186, 123 S. Ct. 769 (US 2003). Virtually all of the cases dealing with the issue of republication apply to documents (works) that are considered covered by the terms of the U.S. Copyright Act and its amendments and extensions. Neither states nor private entities can extend the limits of copyright beyond those set by the U.S. Congress through the statutory authority. See Eldred v. Ashcroft above.
So if there is no copyright protection, is there some sort-of enforceable contract action that protects a repositories holdings from re-publication? What is the basis of the claimed right to prevent re-publication? The core of the answer to these questions lies in the fact that ownership of the right to copy the article does not lie with the repository but with the authors.
My conclusion, libraries and other repositories have no legal right to limit the copying of public domain documents. So why do they do it?
If there is someone out there who thinks they have a legal basis for such limitations, please send me some case law or other statutory provisions that provides a legal basis for such claims. This article is not intended to be a legal opinion concerning any current case or controversy.