OK, I think we’re talking about two different things. Apologies for any confusion.
No, they don’t have to grant access to the files they hold, even if they’re public domain works. But they also can’t sue you for copyright infringement, like the legalese in the example threatens, unless they actually hold the copyright. Whether or not you’ve agreed to the claims in their TOS doesn’t matter in that regard.
There may be other remedies outlined in any given contract. Whether those can be enforced is up to the courts.
The point is that the TOS doesn’t care whether they hold a valid copyright or not. They’re basically saying “in exchange for giving you access to our archive, you must abide by our copyright-like licensing restrictions on the works we’ve given you access to.” So no, they can’t sue you for copyright infringement for redistributing the works you obtained from them, but they can sue you for breach of contract. Of course they would have to prove that it was theirs and not something that was found elsewhere, like the Library of Congress, or at some garage sale after the fact.
This is where it becomes a slippery slope though, it allows works to be taken out of the public domain if only one person/library has a copy of it. The big question is if a contract that pinky-swears it’s not copyright but is effectively doing the same thing is enforceable. The whole point of the public domain is that once a work is out there, it’s out there, nobody can claim any rights over it. In this TOS situation the library is putting use restrictions on a work, which smells pretty rotten to me. Also that contract only applies to the person who signed it, whereas copyright applies to everyone. It seems like the work should not be able to have any terms attached to it just by virtue of it being in the public domain, i.e. all contracts become null and void.
The trademark issue mentioned above has me thinking.
On the one hand, you can buy/sell/whatever stuff with trademarked material on them all the time. E.g., you can sell that old timey Coke sign without any worries about [Colonel “Bat” Guano]having to answer to the Coca-Cola Company[/Colonel “Bat” Guano].
But on the other hand, if you go into business copying Coke signs or some such, then you’re in trouble.
So does copying the trademarked watermark create an issue? Note that I have typed Coke/Coca Cola in this thread several times. People can do this. Ditto posting a picture online of a Coke can, sign, etc.
Is reproducing an image with a watermark just like a picture of a Coke can or is it more like making a new Coke can? Seems more like the former, to me. But it would take lawyers and $ to get an official decision.
Reminds me that Sony says they have copyright on the Sistine Chapel.
IIRC in the 90’s they helped pay for a major restoration that showed that far from being a dark, somber fresco, it was vibrantly cartoonish once centuries of candle soot were removed. For paying for this transformation, they claimed rights to any resulting pictures.
First, it was not Sony who funded the restoration; it was the Nippon Television Network Corporation (NTV).
Second, NTV never claimed copyright over the work. They entered into an agreement with the Vatican in which NTV would get exclusive rights to photograph and film the ceiling for commercial purposes, and those rights ran out in the 1990s.
Third, NTV explicitly stated that they did not want to prevent tourists from taking pictures of the ceiling; their exclusive rights pertained only to excluding other commercial and professional film and photographic enterprises. Now, because it can sometimes be difficult to tell a pro from an amateur, the people who ran the Sistine Chapel erred on the side of caution and instituted a blanket ban, but that ban was never fully enforced.
Fourth, none of this really has anything to do with copyright, at least not in the context of how US law works. It is about right of access. The owner of a public domain work can still control access to the work, and can make access conditional on an agreement not to copy the work. But that doesn’t create new copyright.
Here’s a New York Times articlefrom 1990 that summarizes some of the key details. Note: I have a subscription to the Times; I hope the article is available to non-subscribers as well.
Ah. Almost posted without seeing this. It was exactly what I was going to bring up. It’s something Copyright Lawyer Leonard French talks about on his YouTube channel.
The other thing I wanted to ask is whether the claim of actual copyright invalidates that particular section of the EULA. I would expect it to at least do that much, if not invalidate the whole contract (if they don’t specifically mention it being severable).