Archivist expert rips UA Library permission-to-publish policy

arkansas newsWe’ve already written about some of the more dubious claims the University of Arkansas has made regarding their “suspension” of the Washington Free Beacon (WFB) from library archives earlier this summer — after the WFB published a series of stories critical of Hillary Clinton.
Specifically, we criticized the library’s policy of forcing researchers to fill out a permission-to-publish form for public documents in a public library.
We found out recently that Peter Hirtle, a past President of the Society of American Archivists, shares our concerns about the permission to publish policy.
Hirtle says:

The Arkansas case study demonstrates that archival “permission to publish” is a practice that is both poorly understood and which can be detrimental to the donor, the repository, and the researcher. Following this standard archival procedure, as the University of Arkansas suggests, is not “good business practice…[that] makes operations run smoothly.”  It is time for repositories to get out of the “permission to publish” game and leave permissions to the copyright owner.
A close examination of the “permission to publish” policies of one typical institution demonstrates that they make little or no legal or policy sense.  They can confuse researchers (and library staff) about the nature of the repository’s rights in the material.  They can place the repository in the unenviable and unsustainable position of having to assess the legality of the researcher’s proposed use.  Requirements for compensation (either directly or in the form of complimentary copies of publications) may negate the repository’s normal defenses against a charge of copyright infringement for its copying.
A better approach would be to drop any requirement that researchers secure the repository’s permission prior to publication.  The repository would instead provide researchers with copies for private study, scholarship, or research.  If a researcher wished to use a provided copy for publication, it should be the researcher’s responsibility to determine if her use is a fair use or if permission of the copyright owner is needed.  In some cases, the repository might be the copyright owner and so the researcher would ask the repository for permission to publish. But that should be the only time that repositories are involved with permissions.

Furthermore, Hirtle also chastises the UA Library for acting like “copyright police.”
He says:

The Allen and Nutt letter also hints at yet another reason for the permission to publish form when it introduces the tracking discussion with this odd phrasing: “Disregarding any legal onus we might have to protect copyright…”  Are they disregarding this because it doesn’t exist (but then why bring it up?)?  Or are they hinting that the library does has a legal responsibility to serve as the “copyright police” and is legally obligated to prevent copyright infringement?
This would be a dangerous position for any library to argue.  In effect, it is arguing that the library may have legal liability for secondary infringement for the actions of our patrons.  The library profession has a long history of resisting calls to serve as “copyright police.”

Perhaps UA library officials will brush Hirtle’s criticisms off as “conspiratorial” and “rooted in politics,” as two UA bureaucrats did in a recent op-ed in the Arkansas Democrat-Gazette. However, a two-second perusal of Hirtle’s bio shows that he has pretty sterling credentials.
It won’t be easy to dismiss him as just another rabble-rousing blogger — but based on the way that UA behaves towards people who disagree with them, perhaps we should predict that our Fayetteville friends will continue to dismiss any criticism of their practices..

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