Where the Giants Stand: Protecting the Public Domain in Digitization Contracts with Commercial Partners

Digital dissemination of public-domain works of historic, literary, and artistic value increases the intellectual value of those materials; repositories that license digitization rights to commercial agencies should seek the greatest possible availability for these works on the open Internet. As with copyright law, a balance must be struck between society's legitimate interest in maximizing access to and use of the work and society's equally legitimate interest in encouraging capital investment in digitization, dissemination, and long-term sustainability. This paper proposes that the open-access movement and efforts to "reclaim the public domain" provide a theoretical framework for evaluating prospective partnerships between non-profit repositories and commercial digital publishers, and recommends practical guidelines for developing digitization contracts that both uphold the value of the public domain and meet the needs of the marketplace.