Can documents be owned?

This question came up twice in the last week. Here is one of the questions from my dear friend Anonymous:

When a person purchases public records such as birth, marriage, and death records from various states who owns these documents?

In the same week, I had a long discussion with a missionary at the Brigham Young University (BYU) Family History Library about the same subject but from a different angle. This issue is more complicated than merely being annoyed about the fact that many government agencies charge for copies of the documents that pertain to you personally or to your family members and ancestors. The issue is a larger one about the right of individuals or entities who possess those types of documents and others to prevent or control their reproduction. Governments are far from the only entities that claim "ownership" rights to documents. There are also libraries, museums and other institutions that have provisions that appear to preclude copies of  otherwise public domain documents that are not subject to any claim of copyright.

Are there possessory or other rights that grant the "owner" or possessor of a document that is clearly not covered by any claim of copyright, from prohibiting a person with a special interest in that document from making a copy? This is a challenging question and one not easily answered. One of the first concepts that needs be addressed is the issue of "Crown Copyright." Here is a description of the application of this claim in the United Kingdom from Wikipedia: Crown copyright:

Crown copyright applies "[w]here a work is made by Her Majesty or by an officer or servant of the Crown in the course of his duties". The Crown can also have copyrights assigned to it. There is, in addition, a small class of materials where the Crown claims the right to control reproduction outside normal copyright law due to Letters Patent issued under the royal prerogative. This material includes the King James Bible and the Book of Common Prayer.

This historic claim was codified in 1911. Again quoting from the same Wikipedia article:

The Copyright Act 1911 removed the concept of common law copyright protection from British law, and it also provided specific protection for government works for the first time. Crown copyright was extended to any work prepared or published by or under the direction or control of His Majesty or any Government department. The Copyright Act 1956 further extended Crown copyright protection to include every original literary, dramatic, musical or artistic work made by or under the direction or control of Her Majesty or a Government department; sound recordings or cinematograph films made by or under the direction or control of Her Majesty or a Government department and works first published in the UK, if first published by or under the direction or control of Her Majesty or a Government department.

These same types of laws also apply, with some variations, in New Zealand, Australia and Canada. The most obvious effect these particular laws have on genealogists is that they must pay for copies of government records including birth, marriage and death records. As a result of these laws, many other entities claim ownership of their own records either with or without statutory support.

In contrast to the United Kingdom, in the United States, Federally created government are usually in the public domain unless they contain work that is otherwise copyright protected from some other source. Individual state created documents are not exempt from copyright protection and the degree of control exercised by the states varies from state to state.

Navigating this stream is very precarious. So you really may not "own" your own birth certificate.

There is another sense entirely in which documents may be owned. Many historical documents have a monetary value, especially those containing original work by a famous or infamous person. Letters, diaries, journals and even the signatures of famous people are bought and sold regularly. These documents are called "historical autographs" and can be sold, in some cases, for substantial amounts of money. If you would like to see some examples, there are many dealers in historical letters, autographs, documents and manuscripts across the United States. You can do a Google search and find documents that are being sold for thousands of dollars. Do the owners of these types of documents have some kind of "reproduction rights" to the content? This is a very good question and even harder to answer.

For a description of the variety of materials that may have different ownership considerations, see the article entitled, "What are Primary Sources?" from Yale University Library.

Unfortunately, there is another issue. Many institutions claim ownership of documents in their possession without any legal support for such claims. Although their claims are unfounded, they make these claims for a variety of reasons, some of which are false and fraudulent, but still unavoidable if you want to see "their documents."

Is there an answer to the question posed in the title to this post? Yes, but the answer depends on the particular jurisdiction involved in the ownership claim, the time period of the documents, the type of documents, the value of the documents and many other factors. As genealogists, we have very little leverage when it comes to overcoming unfounded claims to ownership, but most of the time, it helps to be persistent in trying to gain access to the documents and always be ready to pay the price.