Q: What is the Harvard University Herbaria Policy on Access to Digital Reproductions of Works in the Public Domain (the "Policy")?
Under the Policy, Harvard University Herbaria waives any copyright it may have in digital reproductions of works in its collections, when the underlying works are in the public domain and when the digital reproductions are made openly available on Harvard University Herbaria websites. These digital reproductions may be used by anyone for any purpose without first securing copyright permission from the Harvard University Herbaria or any other representative of Harvard University.
For the Policy itself, which includes further explanation and certain exclusions, see the Harvard University Herbaria Policy on Access to Digital Reproductions of Works in the Public Domain.
Q: What works or content are governed by Harvard University Herbaria's permission waiver?
The Policy applies to digital reproductions of works found in the collections of Harvard University Herbaria, when the underlying works are in the public domain and when the digital reproductions are made openly available on Harvard University Herbaria websites.
Q: What content is excluded from the Policy?
The Policy does not apply to digital reproductions of works that are protected by copyright. It also does not apply to secondary representations (whether analog or digital) of public domain works when the secondary representation is sufficiently original to be protected by copyright under U.S. law. For example, the Policy does not apply to a digital reproduction of an in-copyright analog photograph of a public domain sculpture, or a modern digital photograph of such a sculpture. (Harvard University Herbaria accepts the conclusion reached in Bridgeman Art Library v. Corel, 36 F. Supp. 2d 191 (S.D.N.Y. 1999), that a "slavish copy" of a two-dimensional work lacks sufficient originality for copyright protection under U.S. law.) Nor does the Policy apply to digital content that is not openly available on a Harvard University Herbaria web site. See below for further explanations.
Q: Is all online content available from Harvard University Herbaria websites subject to the Policy?
No. Some of the digital reproductions found on a site do not reproduce works in the public domain. Some of the digital reproductions found on a site may have been provided by another library and are not part of the Harvard University Herbaria collection. Agreements with commercial partners for the digitization of Harvard collections may prevent public domain content from being openly available on a Harvard University Herbaria website.
The Policy only applies to digital reproductions of works in its collections, when the underlying works are in the public domain in the U.S. and when the digital reproductions are made "openly available" on Harvard University Herbaria websites. For purposes of the Policy, content is not "openly available" if the Harvard University Herbaria website requires a user to log-in, authenticate, pay money, or agree to license terms, or if the content otherwise is subject to or accompanied by restrictions on access or use.
Q: How do I know whether online content is subject to the Policy?
You should first see whether the digital reproduction is openly available (within the meaning of the Policy) on a Harvard University Herbaria website.
Next, determine whether the underlying work is in the public domain in the United States. In some cases, there may be an indication in the record for the item indicating its public domain status. In other cases, you will have to make that determination on your own. Some resources to help you are provided at the end of this document.
Lastly, check if the digital reproduction – and any intermediate representation (such as a photograph) – is merely a slavish copy of the original work, rather than being an original creative work in its own right.
If all conditions are met (i.e., the reproduction is openly available from a Harvard University Herbaria website; the underlying work is in the public domain in the U.S.; and the digital reproduction and any intermediate representation are merely "slavish copies"), then the Policy applies.
Note that while the Harvard University Herbaria may waive any copyright it may have in certain digital reproductions of public domain works and may provide information about its understanding of copyright status, you are solely responsible for making independent legal assessments of an item's status in the arena in which it is to be used. The Herbaria makes no express or implied warranty as to the public domain status of items found in its collections, or as to the accuracy of any information it may provide about copyright or public domain status.
Q: Are high-resolution, publication-quality images available?
Often high-resolution images are available. Some may be available for download from the website itself. While Harvard does not charge for use of digital images it makes openly available, whether they are high- or low-resolution, the Policy notes that "[t]here may be costs associated with fulfilling requests for new digitization or for the provision of digital files that are not openly available."
Q: Does Harvard University Herbaria place any restrictions on digital reproductions subject to the Policy?
No. As far as the Harvard University Herbaria is concerned, digital images which fall under the Policy may be used for any purpose.
Q: May I use such digital images for academic or classroom projects?
Q: Do I need to ask for permission from Harvard University Herbaria to reproduce or publish such digital images?
No, if a digital image is covered by the Policy, you do not need to ask for permission from Harvard University Herbaria to reproduce or use it. All uses of such images, including reproduction and distribution, are permitted without further application, authorization, or any fees to the Harvard University Herbaria.
Q: My publisher insists I get permission letter to use the reproduction. Will you provide one?
No. Harvard University Herbaria will neither grant nor deny permission to use digital content covered by the Policy. Tell your publisher that it is not necessary to ask for permission to use public domain works. Provide it with a copy of Harvard's Policy if it still has concerns.
Other parts of this FAQ give guidance on when digital content on a Harvard University Herbaria website is covered by the Policy.
Q: Does Harvard University Herbaria need to be credited in any way when I reproduce an image?
Harvard University Herbaria requests as a matter of good scholarly practice that appropriate citations be provided to the source of digital reproductions that are used in any media. Source libraries and archives often provide preferred forms of attribution, citation, or credit in the metadata for a digital reproduction.
Q: Does the policy apply to a book first published in the United States prior to 1923?
Yes, assuming that it was published with the authorization of the copyright holder. Such a book is in the public domain in the United States. In that case, if the digital reproduction of the book is openly available on a Harvard University Herbaria website, the Policy would apply.
Q: What if I want to use the digital reproduction outside of the United States? Would the policy apply?
When the underlying work is in the public domain in the United States and the other conditions of the Policy are met, Harvard University Herbaria waives any copyright it may have in the digital reproduction, regardless of where it is used. Note, however, that the underlying work may still be protected by copyright in a different country. You may still need to get permission from the copyright owner in order to use the digital reproduction. (This is true whether the holder of foreign copyright in the underlying work is a third party or Harvard.) You are solely responsible for making that determination and securing all necessary permissions.
Q: Would the Policy apply to a digital reproduction of a photograph of something when both the subject of the photograph and the photograph itself are in the public domain?
Yes. When both the underlying work and the photograph of that work are in the public domain, and when the digital image is openly available from a Harvard University Herbaria website, the Policy would apply.
Q: What if the digital image is a digital copy of an analog photograph of a three-dimensional public domain work (such as a sculpture)? Would the Policy apply?
Probably not. In most cases, the analog photograph itself would have enough creativity to warrant its own copyright. Hence, unless the copyright in the photograph had expired, the secondary representation of the underlying work would not be in the public domain, and the Policy would not apply.
Q: What if the digital content is a digital photograph of a three-dimensional public domain work? Would the Policy apply?
Probably not. Again, in most cases, the digital photograph itself would have enough creativity to warrant its own copyright. The secondary representation of the underlying work would not be in the public domain, and the Policy would not apply.
Q: Does the policy apply to works in which Harvard owns the copyright (for example, Harvard administrative records, or a book published by Harvard University Press)?
No. This content is not in the public domain, so the Policy does not apply. Moreover, though Harvard University Herbaria is committing under the Policy not to assert copyright in certain digital reproductions, it is not relinquishing any copyright Harvard may hold in works that have been digitized.
Q: Where can I find more information about what is included in the public domain?
The following resources may be helpful:
- Copyright Term and the Public Domain in the United States (Cornell Copyright Information Center) http://copyright.cornell.edu/resources/publicdomain.cfm
- Is it in the Public Domain? (Samuelson Law, Technology & Public Policy Clinic at the University of California, Berkeley) http://www.law.berkeley.edu/17178.htm
- US Copyright Office http://www.copyright.gov/
This FAQ is based in part on Yale University's FAQ: Open Access to Digital Representations of Works in the Public Domain from Museum, Library, and Archive Collections at Yale University.