Some people eat, sleep and chew gum, I do genealogy and write...

Monday, March 23, 2015

Who owns genealogy?

I have written a lot about how individuals do not own their own ancestors. The larger issue concerns the ownership of historical information. Who owns all the genealogical information in the world. Let me start with one example. The copyright law in the United Kingdom is especially complicated. The current law is set forth in the current act; the Copyright, Designs and Patents Act 1988. Quoting from the UK Copyright Service Fact Sheet P-01:
Copyright law originated in the United Kingdom from a concept of common law; the Statute of Anne 1709. It became statutory with the passing of the Copyright Act 1911. The current act is the Copyright, Designs and Patents Act 1988.
 How the law applies to the information maintained by the government that is of interest to genealogical researchers is based on the following, according to the Copyright, Designs and Patents Act 1988, Section 49:
Material which is comprised in public records within the meaning of the M3 Public Records Act 1958, the M4 Public Records (Scotland) Act 1937 or the M5 Public Records Act (Northern Ireland) 1923 [F111, or in Welsh public records (as defined in the[F112 the Government of Wales Act 2006]),] which are open to public inspection in pursuance of that Act, may be copied, and a copy may be supplied to any person, by or with the authority of any officer appointed under that Act, without infringement of copyright.
 If you then move to examining the Public Records Act 1958, you will find the following provision in the First Schedule, Definition of Public Records:
Subject to the provisions of this paragraph, administrative and departmental records belonging to Her Majesty, whether in the United Kingdom or elsewhere, in right of Her Majesty’s Government in the United Kingdom and, in particular,—
(a)records of, or held in, any department of Her Majesty’s Government in the United Kingdom, or
(b)records of any office, commission or other body or establishment whatsoever under Her Majesty’s Government in the United Kingdom,
shall be public records.
 There is usually a charge for obtaining copies of the records. See "Looking for records of a birth, marriage or death in England and Wales" from The National Archives. Why does the Crown own all these documents?

Is there a difference between the act of maintaining and providing the records and owning the records? What do we mean by "ownership?" I am convinced that there is a fundamental difference between the statutorily created right we call "copyright" and the concept of ownership. Another example comes from my interaction with the various special collections libraries around the country. I recently agreed to look at some public documents from the State of Utah for someone out of state. I approached a special collections library that had the records and was told that I could get access but that I could not copy the records and there was a charge for copying at 25 cents a copy. I needed several hundred pages and so I was not overly happy with the charge. I asked if I could copy the records with my camera and was told that they could not allow me to do that. These were so-called public records from a county in Utah. Did the library own those records? Why did they have any interest in those public records that would allow them to charge for copies and refuse me the opportunity to save the money and make photographic copies myself? How did the library obtain ownership of the records? These documents dated from the mid-1800s.

After pressing the issue, I was finally given permission to make my own photographic copies, but in order to do so, I had to put a notice, supplied by the library on a clear plastic strip, on each of the photos, limiting the republication of the copies. There is no question that these particular documents are old enough that there are no copyright claims. Why then is there any vestige of ownership in these old 19th Century documents? Granted, the library has the cost and overhead of maintaining and archiving the documents and granted they may have some basis for arguing that they need to charge for the copies, but what else? I was told that they were limiting my ability to make the copies out a concern that the documents would become damaged. How does that apply to my taking photos? Why insist that I put their claim notice on every photo? Why would they care whether I used or did not use the copies of these documents? Again, how did they obtain an ownership right in the old documents?

These are only two examples of many I could recount. The issue here is a question of ownership and control. In the case of the library, I was also told that "FamilySearch" had come and digitized the documents. Unfortunately, I do not find that these particular records have ever made their way online. I am not in the camp of those who think all information should be free. I think they are confused with the concept of free speech as defined by the U.S. Constitution and subsequent court cases and the reality of writing, conserving, producing, storing and archiving that same information. Someone has to pay to keep the libraries open but does that mean that the libraries own the material they store?

There needs to be a clear distinction between charging for the cost of maintaining the documents and limiting acquisition to the content of the documents under some guise of ownership or control. As I said above, this has nothing to do with the concept of copyright. There is something else going on here.


  1. What is going on is what always goes on when government gets to big for its britches. It can so it does. And people get used to being treated like sheep, so they get away with it.

    1. Maybe, but I think this is something a lot more complicated than a generalization about big government. There is a complex core issue here concerning claims to ownership that are independent of big government. Hence, the example of the university library.

  2. For many years the Utah State Historical Society (funded and run by the state government) has marked the images in its archival collection. I’m looking on the Society website at a picture of Cora Keate, a Piute Indian, and across the bottom of her picture an amateurish label says “Digital image © 2003 Utah State Historical Society. All Rights Reserved.” Cora died in 1898, so there’s little to no chance they hold any copyright.

    Just a few weeks ago I saw something added more recently to the collection, and the label had changed to reflect the actual law. I was astounded. I wish I remembered what the picture was, since I can’t find it again to be able to quote the newer label, and the images I see in the most recent collections don’t have any label at all.

    If an archive does feel the need to label pictures, perhaps something like the archive name might be appropriate. Copyright creep is not.