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

Tuesday, December 27, 2016

Legal Aspects of Record Access for Genealogists

Genealogists are confronted with a multitude of limits to their ability research their ancestors and relatives. Some of those limits involve time and economic resources, others include lack of experience and education such as language barriers and the challenge of old records. But as time goes on we become more involved and experienced, we seem to experience more limitations imposed by libraries, archives, and other repositories. These artificially imposed limitations are often cloaked in a mantle of legality. I have found that in many cases the "legal" excuse is a way to avoid confronting the real issues behind restricting access to records and even entire collections.

In writing about this subject, I am not complaining, nor am I questioning the physical restraints that are placed on valuable, original documents because of their age or delicate condition. In some cases, even ordinary photocopies of documents are restricted due to control issues. Basic to this access problem is the underlying issue of "ownership." This "ownership" issue bedevils genealogists at a variety of levels, but I am going to focus on the libraries and archives.

I am not questioning the ability of both libraries and archives or all kinds to protect their collections. Normal security measures are very important to preserving the integrity of any collection, but I will point out that many access issues go way beyond any reasonable protection issues and involve, in some cases, inappropriate restrictions on research availability.

As I review the access requirements of various libraries and archives, I find a broad spectrum of restrictions. At this point, I need to discuss a few examples.

First and most likely to be overextended are the government imposed "copyright restrictions." Copyright laws exist in almost every country of the world. The basic idea of copyright law is to restrict the reproduction and/or copying of certain protected "works" as defined in the variously applicable laws. One of the basic ideas behind copyright protection is the idea that the author or originator of a particular work should have the "benefit" of the commercial value of the work for a certain time period. Unfortunately, in the United States and a few other countries, the concept of what is and what is not protected has morphed into a blanket protection that is used by entities, other than the author or originator, to enhance their own commercial interests.

For the researcher, determining what is and what is not subject to a copyright claim has become nearly impossible. I was once involved in a copyright claim in the United States Federal District Court where the plaintiff (the complaining party) claimed a copyright interest in a document that dated back into the 1840s. Becuase the plaintiff was a large corporation and the defendant (my client) was an individual with limited resources, the corporation essentially used the cost of the copyright lawsuit to browbeat my client into acknowledging its interest and put my client out of business.

Sometimes, institutions such as libraries and archives, who do not wish to make their own determination of the actual copyright status of books or other records, merely prohibit the copying of anything in a collection or simply try to discourage copies by adding strongly worded warnings as to the consequences of making a copy. Basic to this issue is who owns the copyright? Very few libraries or archives have any interest at all in the actual copyright. In the United States, they have been cowed into protecting the interests of the owners by the threat of lawsuits for "allowing the copying" of copyrighted material. Subsequently, libraries and archives have become "gun shy" of possible lawsuits. For an overview of the real issues involved in library copying, see the following:

“Library Copying.” Stanford Copyright and Fair Use Center, April 2, 2013.

However, there is a more serious aspect of this same issue. In many cases, libraries and archives have attempted to obtain protection for documents that are clearly not covered by copyright and are in the public domain. In these cases, the institution places a notice on the documents or records claiming that there are "contractual" reasons why the records are not available to copy or research. An example of this type of claim is easy to find online. Usually, the claim involves photographs where the institution has ruined the image by placing a large "watermark" notice even for photos that are clearly in the public domain. Another way this is done is by simply restricting access at all to only a certain select number of possible users or where the document might be physically viewed at all.

In some cases, such as the U.S. National Archives, accessing the records is simply made so onerous and difficult that few researchers will go to the trouble of even trying to do research in the facility. See "Plan Your Research Visit." Most university libraries' special collections sections have some type of research restrictions also. With U.S. government documents, we run into issues of restricted access based on classified documents. The United States has various laws concerning freedom of information that can be used to obtain access to certain documents, but again, that can be an expensive and time-consuming alternative.

The most difficult access issues involve private entities. Certain church organizations, for example, claim ownership of their records and other documents and will not allow public examination at all. Other churches restrict access to only "approved" researchers and may impose restrictions even on the approved researchers.

Although I am not a practicing or licensed attorney since my retirement, I can suggest that when you are faced with an access situation, you make sure you understand exactly the context and basis for the claim of restricted access. Some situations are not resolvable. If a church refuses you access, you have no real recourse. But if the U.S. government refuses you access of fails to adequately allow access, there are remedies. If you see a private institution defacing online images with a "watermark" simply to promote sales of those same public domain images, make your objection known and challenge the claim where appropriate. You may, in some extreme cases, need to talk to or hire an attorney. Just make sure when you do, that you are talking to one who is well acquainted with intellectual property law in the country involved.

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