[INDOLOGY] Question about manuscript ownership

[Jonathan Silk]

Dear Friends
Nothing more than a small footnote to Antonio's response: I happened to
have a long discussion with an intellectual property law specialist last
week basically about exactly this question. The upshot: under US, UK and
European law (and I cannot say about India, but I guess it can't be
fundamentally different in this respect), it is not possible to exert
copyright over two dimensional reproductions of two dimensional objects (eg
manuscripts) which themselves are not subject to copyright. What is
possible is to make contractual conditions, but you can do this only if you
are the owner, of course. So if one does something with an MS, like
photographs it, and then the MS passes into other hands, it has no legal
bearing on the photos you made. What is more, if you take photos of an MS
in a library, for instance, or in someone's home, and they impose no
contractual conditions on you, you can do whatever you like with the photos
-- but also, note, you cannot --on the basis of copyright --claim further
control of the images.  What this comes down to is that many if not most of
the claims being made for control of images of manuscripts are not legally
valid.
Nota bene: this is a different question from the following: do you want to
get into a fight with a library? The British Library in my view illegally
puts conditions on manuscripts they own. But if you annoy them, I'm sure
they are perfectly capable of mishandling your next request... I hasten to
say this is not so far my experience, but I did write to them asking them
the legal grounds upon which they were imposing conditions on me and their
response was not warm and fuzzy.
It reminds me of a joke from my childhood: We're the telephone company; we
don't care, we don't have to.

Jonathan

On Wed, Oct 31, 2018 at 6:34 AM Antonio Ferreira-Jardim via INDOLOGY <
indology at list.indology.info> wrote:

> Hi Clemency,
>
> The photographs are the intellectual property of the researcher and can
> use them as they see fit - unless the terms of sale of the manuscript to
> the museum contained restraint of use clauses - which may or may not be
> legally enforceable in an Indian court.
>
> Kind regards,
> Antonio
> UQ
> Australia
>
> On Wed., 31 Oct. 2018, 3:25 pm Clemency Montelle via INDOLOGY, <
> indology at list.indology.info> wrote:
>
>> Dear colleagues,
>>
>> A researcher purchased an original Sanskrit manuscript, date of copying
>> unknown, from a dealer in India, and made photocopies of it.  The original
>> manuscript was then donated to a manuscript library in India. (The
>> manuscript never left India so there is no conflict with the 1972
>> Antiquities and Art Treasures Act's export restrictions.) The researcher
>> now wants to use some of the photocopied images of the manuscript---which
>> were made while the researcher owned the manuscript---in a publication.
>>
>> Who needs to give permission for the use of those photocopied images?
>> The researcher (and past owner of the original manuscript) who made and
>> owns the photocopies, the manuscript library which is the present owner of
>> the original manuscript, or both?
>>
>> Thanks to any insight anyone might have in this particularly complicated
>> question!
>>
>> Best wishes,
>> Clemency
>>
>> ----
>>
>> Dr. Clemency Montelle
>>
>> Associate Professor
>>
>> School of Mathematics and Statistics
>>
>> University of Canterbury | Te Whare Wananga o Waitaha
>>
>> Private Bag 4800, Christchurch 8140
>>
>> NEW ZEALAND
>>
>> http://www.math.canterbury.ac.nz/~c.montelle/
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-- 
J. Silk
Leiden University
Leiden University Institute for Area Studies, LIAS
Matthias de Vrieshof 3, Room 0.05b
2311 BZ Leiden
The Netherlands

copies of my publications may be found at
https://leidenuniv.academia.edu/JASilk


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