Yale provides digitized images from special collections without fees

I’ve written before about the common practice, in my opinion a very questionable one, that academic library special collection departments have of charging usage fees for images from special collections that vary depending on intended use.

This is to my mind questionable because libraries generally don’t hold the copyright to these images, nor have they been authorized by the copyright holder to sell licenses to use these images. So while these fees appear like licensing fees, they aren’t. If someone paid a smaller ‘personal use’ copying fee for a copy of an image, but then used it in a dissertation, a book, or even a commercial — the library wouldn’t have any legal standing under copyright. They might under contract if the person had signed a contract promissing not to do that. And on the other side, you are not actually obtaining a license  when you pay these fees — if the actual copyright holder showed up and said you had no legal authorization to use that image on your website, in your book, or in a commercial, they’d be absolutely right. (Some portion of a libraries special collections, the copyright holder may have assigned copyright to the library or given them a license to sub-license — I’m not sure how common that practice is, but it’s definitely not universal, I suspect the copyright holder is not even known by the library for many old images in libraries).

Anyway, I consider this practice rather contrary to the main mission of libraries to provide access. It also interferes with the new mission to educate users on their rights under copyright, as it serves instead to confuse users as to rights of holders and users under copyright.

Yale opens up images

So I’m very pleased to hear that, according to the New York Times, Yale has ceased this practice, and no longer charges usage fees for images from their collection.  And here it is from Yale itself.

Or, wait, does it?

However,  it’s not entirely clear to me how real/complete this change is.  Yale says in their own press release that:

The goal of the new policy is to make high quality digital images of Yale’s vast cultural heritage collections in the public domain openly and freely available…

…As works in these collections become digitized, the museums and libraries will make those images that are in the public domain freely accessible. In a departure from established convention, no license will be required for the transmission of the images and no limitations will be imposed on their use….

And the phrase “open access” is used several times. (Also again, note, “established convention” is to charge/provide a license  for public domain works?  I think you guys still doing this really don’t want to call that a “license”, I would suspect it is fraud to sell a “license” to something in the public domain).

No limitations on use, huh?  But the terms of use on the linked website contradict this, saying:  “The Gallery is making the Materials available for limited non-commercial, educational, and personal use only, in accordance with the fair use provisions of the copyright laws. Users may download these files for their personal or educational use… ”

Limited non-commercial, educational, and personal use only?  Is that “open access”? It’s definitely not the no limitations” the press release brags about.

One of the most common use cases I personally run into for archival special collections, is when a graduate student wants to include one in a thesis or dissertation — which these days may likely end up open access on the web. Is such use allowed as “limited, non-commercial, educational, and personal”?  The terms of use don’t address this very common use case.  But even trickier, the destiny of most successful dissertations in the humanities is to end up published as a book by a scholarly press — that’s probably not “non-commercial” anymore, eh?  How “open access” is this?

It’s possible those terms of use have not been updated for the new policy, or that these are just boilerplate terms from the Yale website and are not in fact the operative terms for the images themselves. They also say “Users must cite the author and source of the Materials as they would material from any printed work, and the citations should include the URL http://artgallery.yale.edu, ” even though the actual site I found these terms of service on, the one linked to from the open access press release, is instead http://ecatalogue.art.yale.edu.

But other than the press release itself, I can’t find anything on the website hosting these images telling us what rights and restrictions there are on them, except for those terms.

I am also only able to find fairly low resolution images from that ecatalogue site. If all they’re doing is applying (sort of) “open access” to very low-res images, but still charging high and determiend-by-nature-of-use ‘reproduction’ fees for images with enough resolution to do anything useful with…. well, that’s what a lot of libraries have been doing for a while, and isn’t the groundbreaking change the press release implies.

So what’s the real scoop?  Has Yale actually “open access-ed” their digitized images from special collections in a meaningful way, or is this just new marketting for business as usual? Anyone know?  I find it odd that the press release crowing about “the new policy” doesn’t actually link to it.

Last word…

“With this pioneering open access policy, Yale reminds us that with any great academic collection comes a great responsibility: to share our cultural heritage openly in order to advance scholarship not only on campus but around the world. Yale has set a new standard by which we should measure our colleges’ and universities’ commitment to scholarship,” noted Max Marmor, president of the Samuel H. Kress Foundation, which encourages teaching, learning and scholarship in the history of art.

From the press release. Well said, Max Marmor, that’s exactly right — public and academic libraries missions are to share their material openly. I hope Yale is actually doing this, and I hope it does indeed guide the way for other academic libraries to follow suit.


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