Being a lawyerbrarian, I often have conversations with people about how the law works. Fairly often, those conversations are frustrating, discouraging, or downright disheartening for all involved. Here’s a hypothetical rendering of one such conversation:
J. Random Librarian: When federal employees produce documents, there’s no copyright in them, right?
Copyright Librarian: Most of the time, that’s right.
JRL: So, when there are articles in an online journal a hypothetical library subscribes to, written by hypothetical federal employees, the library can just, hypothetically, give people access to those articles, right?
CL: Are we talking about hypothetical people-not-affiliated-with-the-library?
JRL: Well what? The articles are public domain! The authors never gave copyright to the journal publisher, because there never was a copyright in them to begin with, so it’s not like the journal publisher owns a copyright anyone’d be violating!
CL: All absolutely 100% correct. [ pause ] However, there’s this little thing called contract law…
—several frustrating-for-all-involved minutes later—
CL: Sooo. If the hypothetical library contract specifies who can access the electronic journal through the subscription, then providing access to people who are not part of the group specified in the contract, would, hypothetically, be a contract violation. But because contracts are only binding on the parties who agree to them, if those same hypothetical unaffiliated individuals got hold of legitimate copies of the articles in some way where they didn’t have to agree to any contract with the publisher, they could make as many copies as they wanted! Because there is no copyright to worry about, and they would not be subject to any contract restrictions.
JRL: But if the only access to these hypothetical articles is through institutional subscriptions, doesn’t that effectively remove them from the public domain? That’s just wrong!
CL: Unfortunately, the law in the U.S. is pretty big on letting people contract away most kinds of rights…
JRL: But the hypothetical people who need access to this article are employees of the same government agency as the people who wrote the paper in the first place!
CL: OMG. The hypothetical agency doesn’t have its own copies??? This is pretty ridiculous and not the right outcome, but the hypothetical library still probably can’t give access to the hypothetical people-who-are-not-part-of-their-subscription-model! Aagh!!!
Thank goodness lawyering not the only, or even the primary, part of my job.