Scholarly Access To Images

The Max Planck Institute for the History of Science has put out a sheet called "Best Practices for Access to Images: Recommendations for Scholarly Use and Publishing." The practices identify restrictions that have been put on access to public domain works for researchers in the humanities and talks about how scholars should be restricted in how they use images of public domain works.

In recently researching a case of Nazi looted art, I have been frustrated by non-profit institutions blocking access to copies of documents necessary to trace Nazi-art looting practices in Switzerland. One institution was the Getty blocking access to an official government report, another a German museum claiming that I had to get copyright permission from a deceased Swiss art dealer to make copies of his correspondence with the Nazi regime. Each institution was informed that the documents were for use in an impending court case.

My feeling is that any restrictions on scholarly use of public domain materials by an entity that enjoys tax-free status is presumptively a violation of the public trust, and a restriction of the public domain that conflicts with the complete preemption of copyright law. Only in certain limited cases should museum and library archives be banned from public view, and certainly not unclassified Nazi-era documents. I am sensitive to the fact that libraries and institutions cannot exist on thin air and that some financial support is necessary. If endowments and other funds do permit subsidized access, charging scholars for access should be the last resort.

In the Dastar case the court worried about mutant species of copyright laws making public domain materials unavailable forever, and was explicit that public domain meant the right to use without attribution. Didn't Bridgeman Art Library v. Corel Corp., which held that exact copies of public domain images are not protected by copyright resolve these issues?

Charging fair access fees on an equitable basis (akin to charging for photocopies) seems reasonable. But museums, now all too often acting as a multibillion-dollar theme park industry focused on building new wings and expanding their parking lots, have a tendency to want to cash in to the max on every aspect of merchandising the cultural property in their grasp. If they want to do that, they are violating their core missions and should be taxed like everyone else.

I am grateful to many amazing librarians I have known over the years. I am supportive of this type of research in the humanities. And I don't mind mentioning that the image appearing above, which is a link to the Max Plaenck website, is an image created by Rembrandt of Aristotle with the Head of Homer and that it is to be found at the Metropolitan Museum of Art. But should I be required to do so? And what if it turns out not to be a Rembrandt?