General Principle
The mission of the Harvard Library is to advance scholarship and teaching by committing itself to the creation, application, preservation, and dissemination of knowledge. The use and reuse of digitized content for research, teaching, learning, and creative activities supports that mission. Digitized content enhances access for students and faculty to collections in Harvard's archives and libraries, and it provides a way for the Harvard Library to share its intellectual wealth with the rest of the world. In order to foster creative reuse of digitized content, Harvard Library allows free use of openly available digital reproductions of items from its collections that are not under copyright, except where other rights or restrictions apply.
Policy
Harvard Library asserts no copyright over digital reproductions of works in its collections which are in the public domain, where those digital reproductions are made openly available on Harvard Library websites. To the extent that some jurisdictions grant an additional copyright in digital reproductions of such works, Harvard Library relinquishes that copyright. When digital reproductions of public domain works are made openly available on its websites, Harvard Library does not charge for permission to use those reproductions, and it does not grant or deny permission to publish or otherwise distribute them. As a matter of good scholarly practice, Harvard Library requests that patrons using Library-provided reproductions provide appropriate citation to the source of reproductions. This policy is subject to the explanation and exclusions below.
Details
- Public domain; levels of copyright. Under this policy, the underlying work that has been digitized must be in the public domain in the United States. The same is true of any secondary representation of the underlying work that is sufficiently original to be protected by U.S. copyright law. Thus, for example, a digital reproduction of an in-copyright photograph of a public domain sculpture is not covered by this policy. Nor is a digital reproduction of a two-dimensional work (such as a page of a book) that is protected by copyright. Under this policy, Harvard Library is committing not to assert copyright in certain digital reproductions, but is not relinquishing any copyright it may hold in works or secondary representations that have been digitized. Some works that are in the public domain in the U.S. may remain in copyright in other countries. In that case, while Harvard Library will not assert foreign copyrights in the digital reproduction of such a work when the conditions of this policy are met, it is not relinquishing any foreign copyright it may hold in the underlying work or any secondary representation, and the user of the digital reproduction is responsible for obtaining any permission that is needed (whether from Harvard or a third party) to use the digital reproduction in other countries.
- Public domain determination: When possible, Harvard Library will provide information on the copyright status of works that have been digitized and are made openly available. The nature of historical collections, however, is such that copyright or other information about restrictions may be difficult or even impossible to determine. The absence of explicit information on copyright is no guarantee, therefore, that a work is in the public domain either in the U.S. or abroad. Nor can Harvard Library guarantee the accuracy of any information about copyright status that it does provide. The Library makes no express or implied warranty to others who wish to use digital reproductions of items found in its collections. Users are solely responsible for making independent legal assessments of an item's status in the arena in which it is to be used.
- Non-copyright restrictions: Some uses of public domain works may be restricted by trademark, privacy, publicity rights, donor requirements, or other such rights or restrictions. It is the user's sole responsibility to consider the possibility that such rights or restrictions may be involved and to secure any needed permissions.
- Service fees: There may be costs associated with fulfilling requests for new digitization or for the provision of digital files that are not openly available (for example, high-resolution versions of web-accessible material). Fees for such reproduction and distribution services are set by the responsible library unit.
- Openly available: This policy applies to publicly accessible digital reproductions found on Harvard Library web sites that, without restrictions, allow free downloads of digital images of public domain works. Any content that requires a user to log-in, authenticate, pay money, or agree to license terms, or that otherwise is subject to or accompanied by restrictions on access or use, is not considered openly available.
- Exceptions: The Vice President for the Harvard Library may make exceptions to this policy in particular cases where the Vice President, or her or his delegate, determines on balance that the aims of the Harvard Library would be better served by such an exception.
- Information on use: Formal requests for permissions to publish have traditionally served the purpose of providing a means for acquiring information about image use. Harvard Library may implement systems to identify and track the use of images made openly available under this policy.
- Citation and credit: Harvard Library 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.
- Fair Use: Under this policy, digitized reproductions of public domain works may be used for any purpose without first seeking permission from Harvard Library. Reproductions of many other works in the collections are also available from the Harvard Library in varying formats. Harvard Library supports fair use of its digitized reproductions that are not subject to this policy when all applicable legal criteria are met.
Harvard Marks/Name
The users of digital reproductions should not suggest or imply that Harvard Library endorses, approves of, or participated in their projects. Harvard's name should not be used in the title or the name of the product, and it should not be used as a metadata search term, website name, or web address, or be large or prominent. The use of the Harvard name or trademarks for any purpose other than standard source citation requires the prior approval of the Harvard University Trademark Program: http://trademark.harvard.edu/.
Disclaimer
The use of digital reproductions made available by the Harvard Library shall be at the user's sole risk. To the fullest extent permitted by law, Harvard disclaims all warranties of any kind (express, implied or otherwise), including but not limited to any implied warranties of merchantability, fitness for a particular use, non-infringement, and/or as to the accuracy or completeness of content or related information, in connection with such digital reproductions and your use thereof. Harvard shall not be responsible or liable for any damage that may occur due to your use of any material that Harvard Library makes openly available. As used in this paragraph, "Harvard" includes Harvard Library, Harvard University and their respective governing board members, officers, employees, agents and affiliates.
Adopted September 30, 2014
Frequently Asked Questions
What is the Harvard Library Policy on Access to Digital Reproductions of Works in the Public Domain (the "policy")?
Under the policy, Harvard Library 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 Library websites. These digital reproductions may be used by anyone for any purpose without first securing copyright permission from the Harvard Library or any other representative of Harvard University.
For the policy itself, which includes further explanation and certain exclusions, see the Harvard Library Policy on Access to Digital Reproductions of Works in the Public Domain.
What works or content are governed by Harvard Library's permission waiver?
The policy applies to digital reproductions of works found in the collections of Harvard Library, when the underlying works are in the public domain and when the digital reproductions are made openly available on Harvard Library websites.
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 Library 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 Library web site. See below for further explanations.
Is all online content available from Harvard Library 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 Library collection. Agreements with commercial partners for the digitization of Harvard collections may prevent public domain content from being openly available on a Harvard Library 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 Library websites. For purposes of the policy, content is not "openly available" if the Harvard Library 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.
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 Library 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 Library 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 Library 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 Library 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.
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." Check with the appropriate library for more information.
Does Harvard Library place any restrictions on digital reproductions subject to the policy?
No. As far as the Harvard Library is concerned, digital images which fall under the policy may be used for any purpose.
Do I need to ask for permission from Harvard Library 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 Library 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 Library.
My publisher insists I get permission letter to use the reproduction. Will you provide one?
No. Harvard Library 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 Library website is covered by the policy.
Does Harvard Library need to be credited in any way when I reproduce an image?
Harvard Library 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.
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 Library website, the policy would apply.
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 Library 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.
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 Library website, the policy would apply.
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.
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.
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 Library 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.
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
- Is it in the Public Domain? [PDF], Samuelson Law, Technology & Public Policy Clinic at the University of California, Berkeley
- US Copyright Office
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.
Last revised October 19, 2014.