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There is a book published in 1878 (i.e. not copyrighted anymore) which is currently not available in the public domain. I would like to bring it into the public domain by making a scan of it and upload it to e.g. archive.org.

However, the only physical copy I can get of it is in my university library (to which I have lawful access). My university (in the UK) has this policy where "you are not allowed to make a scan of more than one chapter or 5% of the book". This is clearly relevant for books which are still under copyright. But I wonder whether this is also valid for books without copyright.

You might think this is an issue specific to the university regulations and the library's terms of services, and be quick to suggest "ask your university". But the point is broader. Can a provider of material set up a set of terms and services that in effect denies my capacity to bring un-copyrighted material into the public domain? I am an frequent user of archive.org and there you find many un-copyrighted books that were scanned from a copy of a university's library. This does not necessarily goes into my favour, but makes me suggest I could be entitled to do so too, even without explicit permission from the library.

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    Public domain means it may be copied. It doesn't mean that they must allow you to copy it. If you copy it anyway, obviously you are breaking the library rules, but not copyright law. – Brandin Dec 7 '17 at 14:07
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    There are very few laws that would allow you to make use of another party's private property (the book and the copier) in a way that the owner has not given you permission to use it. I'm pretty sure this isn't one of them. – Nate Eldredge Dec 7 '17 at 15:43
  • For a more certain answer, please specify the jurisdiction. – Nate Eldredge Dec 7 '17 at 15:44
  • @NateEldredge: I wouldn't be that sure. University libraries are often officially designated repositories, which might exempt them from the general rule. – MSalters Apr 19 '18 at 10:34
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More generally, the university gets to set whatever rules it wants, unless there is a law limiting what it can do. For example, in the US a government university (qua arm of government) cannot require you to have a particular religion or profess a particular creed, but a private one can. An employer could require you to be in your office from 9 to 5, even though it is legal to not be in an office from 9 to 5. The general principle is that the institution can set its own rules for operation, unless those rules violate the law.

Generally, the owner of property has the right to say how it can be used. It is quite common for universities to have variable policies regarding access to their books (e.g. "anybody can walk in and do things with the volumes, which are out in the open, except they have to have borrower's permission to take it out of the building" to "you cannot enter at all, and must have special permission to inspect the book -- nobody can take the books out of the building"). My experience is that UK libraries have a tighter rein on their holdings than do US universities (the sampling problem here is non-trivial). In some cases, the absolute control of the property owner is somewhat overridden by law, especially if the institution is a state-run university (not in the UK). Another possibility is that access to books is a contractual right (some kind of "terms of service" that you and they are bound to). Even in the case of US state universities, I cannot imagine a government having a law declaring the right to copy books to be such a fundamental right that a university cannot deny you that right.

The most likely scenario for enforcement is as a contractual matter. A complete analysis of the relationship between the individual and the institution would be way too broad for here, but here is a sample of the questions that could arise. What is the source of your right to access books? Perhaps you are employed as a faculty person: do you have a contract? Can you be fired for breaking rules: are there any limits on what acts can lead to firing? What procedures if any are specified for termination, and what avenue of internal appeal exist? The government would not overrule the institution's decision unless they didn't follow the contractually-governed procedures for termination.

Apart from the legal question, a perfectly coherent reason to prohibit scanning books whose copyright has expired is that the act of scanning them may damage the book.

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    So, unless there is a law which states that "I cannot be denied to make a copy of an un-copyrighted book owned by an institution", the university can do as it pleases? And since such law is unlikely to exist, ultimately it depends on the terms of service of the library and hence the answer is idiosyncratic to the institution in question? – abracadabra Dec 7 '17 at 21:19
  • @luchonacho Yes. The answer is idiosyncratic to the institution in question. And there could be good reasons for not allowing anyone who wants to, to handle and/or copy old books (e.g. they are fragile, and it reduces the value of the library's collection). You might want to contact a supervisor to see if you could get an exception to the general rule. – ohwilleke Dec 7 '17 at 21:51
  • So, to summarize, "the university can set whatever rules it wants so long as there isn't a law against setting that rule, and they can enforce the rules however they like provided their method of enforcement is legal, but in this case they would have no standing to bring / have brought a court case against someone for copying the book. Though they may hand out a library ban, or expulsion, or whatever". – Parthian Shot Dec 8 '17 at 21:12
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    Shorter version: "The law doesn't care whether or not you copy the book. The law also doesn't care whether or not the university expels you for copying the book." – Parthian Shot Dec 8 '17 at 21:13
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    I feel the answer should incorporate some of the ideas in the comments. As it stands, it is imprecise/incomplete. – abracadabra Dec 9 '17 at 22:23
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The book is the library's property and you should follow the library's rules when using its property.

I am not a lawyer and the following is not legal advice. That said, you can accomplish your goal as follows:

  • get 20 people or fewer to scan 5% or one chapter each, then combine results. The rule as stated applies per student.

  • take high-quality digital photographs of each page. The rule as stated applies to scans.

  • transcribe all markings yourself using pencil and paper, or by typing in one page at a time while approximating the original formatting.

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    Are you persuaded that the university would not interpret these actions as rule-breaking? We're talking about institutional policy here. – user6726 Dec 9 '17 at 15:13
  • Your understanding of the rule has missed the point. The 5%/1 chapter is to ensure any copying occurs as fair use. The scanning rule is to prevent digital uploading Less than this amount can't often be used to violate copyright; more than this amount is unlikely to have a reasonable justification. Taking hi-res images is only needed for making further copies; study of the content or the book itself would be done with permission or is achievable with even phone-based cameras. Flat out transcribing is a direct breach of copyright. – Nij Dec 10 '17 at 1:41
  • The university is protecting itself and indirectly the book users. If you're going to deliberately breach copyright in this way, save the trouble and copy 100% on your own. Deciding whether a given book is in copyright or the public domain is not trivial for many books, and those that matter are almost always still copyrighted, so a blanket policy is the only way to ensure the books aren't copied. – Nij Dec 10 '17 at 1:46
  • @Nij In the context of the current question, any copyright analysis is moot, as there is no copyright to breach. – Upnorth Dec 12 '17 at 6:17
  • They're talking about books from a university library. They claim there is no copyright issue, but this is precisely my point: the university cannot trust them to know that for sure. – Nij Dec 12 '17 at 7:49

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