What is Happening to the Books in the Salt Lake Family History Library? Part One

During the last year, while I was in Annapolis, Maryland digitizing documents at the Maryland State Archives, I had a number of conversations with people doing research at the Family History Library in Salt Lake City, Utah. The comments centered around books. Specifically, missing books from the library and that were not available online.  I have had several such conversations since returning to Provo.

Few people are aware that the FamilySearch.org website has a fairly large collection of digitized books specifically on the topic of family history. Recently, the books section of the FamilySearch.org website has had posted the following notice:

In case you can't read what it says on the image, it reads, " FamilySearch is upgrading its digital library application. Look for a new interface and enhanced features coming January 2019!" Well, this post is being written in February and there is no change to the website. The current number of digitized books in the book section is 372,472. However, we do get this cryptic message frequently when I try to open a book that I need or am interested in:

The book that I click on in this example is as follows:

Mabee, Erin M. 1995. Clear Creek Cemetery inscriptions, Camp Verde, Arizona. [Glendale, Arizona]: [E.M. Mabee].

Since that book was written in 1995 there may be a question as to whether or not the book is subject to a copyright claim. Normally, it would be subject to copyright protection automatically under the current copyright law in the United States.

Here is the issue. What has been happening at the Family History Library is that once the books are digitized they are removed from shelves and are unavailable. I have been repeatedly told that the books are actually cut so that they can be to digitized easily. Essentially, the book is now unavailable both online and from physical access in the library. Patrons are being told that the books are in a warehouse and unavailable except by special request.

According to WorldCat.org That particular book is available as follows:

Ironically, the book would have been available at the Mesa Arizona FamilySearch Library which is unfortunately no longer in existence.

There is also a serious legal issue as to whether or not a book of cemetery transcriptions could be subject to a claim of copyright. I suppose it would depend upon whether or not there was any additional information in the book such as photographs or commentary. However, the cemetery inscriptions would not be subject to a copyright claim by someone who transcribed them. If there was any possible copyright claim it would be by the person who made or created the cemetery inscription on the headstone. Yes, headstone inscriptions can be subject to copyright claims. But that is another issue.

 But there is a much larger issue. The real issue is why the Family History Library is not a library? It is true that the Family History Library is a "noncirculating" library. This means that unlike a public library the books cannot be checked out and removed from the library. But once the book is digitized it becomes a different entity. From working with the Mesa, Arizona FamilySearch Library, I am aware that before we digitized the books in the library which eventually ended up in the digital collection on FamilySearch.org, we had to obtain permission to digitize the book and put it online from the owner of the copyright. When I gave a book to the Mesa library for digitization I was asked to sign a paper saying that I own the copyright and that they had permission to put the book online. For this reason alone, there should not be an issue with copyright restrictions.

Let's assume that FamilySearch failed to get permission either to digitize the book or to put it online and make it freely available. Why then is it digitize the book or put it online in the first place? Why put it in the catalog and say that it is available online and then put up a notice that says that it is unavailable because of copyright restrictions? If the book was digitized without permission and then put into storage and is no longer available in a paper version that seems like a serious mistake.

Now let's further suppose that permission was granted but there is still some other issue. Nearly all of the books I read now are digitized and online. Additionally, nearly all of the books that I read online are subject to copyright claims. Why then can I read the book online? Hmm. In this case, we need to go to Section 108: Copyright Exceptions for Libraries and Archives of Title 17, section 108 of the U.S. Code.  This section allows libraries and archives to use copyrighted material in specific ways without permission from the copyright holder. Here are some of the provisions of that section:

Section 108 permits libraries and archives to:

• Make one copy of an item held by a library for interlibrary loan;
• Make up to three copies of a damaged, deteriorated, lost, or stolen work for the purpose of replacement. This only applies if a replacement copy is not available at a fair price;
• Make up to three copies of an unpublished work held by the library for the purpose of preservation.  If the copy is digital, it cannot be circulated outside the library;
• Reproduce, distribute, display, or perform a published  work that is in its last 20 years of copyright for the purposes of preservation, research, or scholarship if the work is not available at a fair price or subject to commercial exploitation;
• Make one copy of an entire work for a user or library who requests it if the work isn't available at a fair price.

Some of these restrictions require the library to determine the copyright status of a particular book or work. That is the big issue with the library. Clearly, the book I indicated above could be circulated in the library without any question as to its standing with regards to copyright claims.  But I'm guessing, that the book that I cited above was donated to the library by the author. At that time, permission should have been requested to digitize and distribute the book online regardless of any copyright claims.

According to my friends who have been working in the Family History Library in Salt Lake City, Utah, there are thousands of books missing and/or unavailable. For example, they are complaining that there are links in the FamilySearch Wiki that go to books that are unavailable.

The reason why this is part one of a series is that I have not yet had the opportunity to physically visit the library in Salt Lake City. When I do, I will see if there is any further information that I can obtain about the status of the books.