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PARISH REGISTERS:
To see or not to see? That is the question.
by Paul Gorry (What's What in Irish Genealogy)

[First published in 'Irish Roots' magazine No. 2, 1994]

To National Library readers of long standing It is a familiar scene. The red-faced library assistant is thumbing through the Catholic Directory. Before him or her is the index to the Roman Catholic parish registers on microfilm, open at a page where all the reference numbers are blacked out. On the other side of the counter stands a sorrowful or bemused or enraged visitor from San Francisco or Saskatoon or Sydney. Behind him or her is a queue or line of tetchy readers waiting to be served.

The cause of this little scene? Well, the visitor from San Francisco or Saskatoon or Sydney is on a two week holiday in Ireland hoping to pack in some intensive ancestor tracking. They have read the Bord Fáilte publicity telling them to come and look up their family history. They have read the guidebooks. They have done their home-work, found the parish their forebear was from and ascertained that the parish register is on microfilm at the National Library. They have found the National Library and obtained a reader's ticket. The library assistant has given them the index to the microfilms. They have found the parish name. But why is the reference number blacked out? The answer to this question is what causes the sorrow, bemusement or rage. What nobody told them up to this was that the records of parishes in six of the twenty-six dioceses in Ireland are not on open access at the National Library. In the case of five of these six dioceses they need a letter of permission from the relevant parish priest or his bishop. In the case of the sixth diocese, Cashel & Emly, no access is permitted.

History
A brief history of the microfilms might go some way towards explaining this frustrating situation. In the 1950s the Library was allowed to commence filming Roman Catholic parish registers. These records of baptisms, marriages and in some cases, deaths were copied only up to 1880 and apparently for reasons of confidentiality they were not to be made available to the general public without written permission from the parish priest. By the early 1980s the most recent records on microfilm were over 100 years old and some had been placed on open access by the relevant bishops. As the matter of confidentiality was by then negligible the Chief Herald of Ireland, Mr Donal Begley, requested the other bishops to make these centrally located records openly available to the growing number of interested parties both from within Ireland and visiting from abroad. Within a few years all but six dioceses were on open access.
In the early l990s another diocese was 'opened', leaving only Ardagh & Clonmacnois, Cloyne, Down & Connor, Kerry and Limerick requiring permission. However, in August 1991 the Archbishop of Cashel, Dr Dermot Clifford, informed the National Library that he was rescinding his predecessor's grant of open access to the registers of Cashel & Emly, that he was claiming ownership of the registers for the archbishop and the respective parish priests, that they were declaring copyright in the registers and that the Tipperary Heritage Unit would be given exclusive rights to providing information from them. He further warned of legal action against the Library or any other outlet which provided such information without his permission. The Library's Director, Dr Pat Donlon, seemingly took legal advice on the matter, but in the absence of a clear-cut answer she withdrew the microfilms of Cashel & Emly in 1992. These microfilms are no longer available to researchers, even with the permission of the relevant parish priest. In fact, it is reported that, at Dr Clifford's request, the parish priests of that diocese assigned the alleged copyright in the registers to him.
The most alarming thing about the Cashel & Emly situation is that the records had been opened in the 1980s by the then Archbishop, Dr Morris, and were closed by his successor. This reversal, if it has legal substance, means that the records of all dioceses may be opened or closed at the whim of the relevant bishop or archbishop.
The whole matter of closed access is difficult to understand for those on the ground, so it must be utterly baffling for tourists who have been encouraged to spend their annual holiday tracing their Irish ancestry. It is shrouded in layers of canon, civil and copy-right law. The situation is further obscured by the existence of local centres which have been indexing parish registers in recent years. Because of this dimension some of the bishops seem themselves to be confused as to what genealogists want.

Irish Family History Foundation
Like most people in Ireland, the clergy paid little attention to ancestral research until the 1980s. Twenty years ago, before the television series Roots coined the catch-phrase used in the title of this magazine and literally made it a household word, ancestral research was generally looked on in Ireland as an odd pursuit. Today just about every parish in the country is contemplating the economic potential of 'heritage', which can mean historical sites, the Irish language, traditional crafts or 'digging up your roots'. What happened in the intervening years with regard to the 'roots' sector of 'heritage tourism' was that youth training schemes provided funding to allow local organisations to develop locally based historical records. These organisations came together to form what is now the Irish Family History Foundation. Through successful lobbying of the Roman Catholic bishops, the Department of the Taoiseach, Bord Fáilte and the authorities in Northern Ireland they got official backing for the Irish Genealogical Project (now Irish Genealogy Ltd.), a nationwide network of indexing centres to provide a commercial research service at a local level.
What has this to do with microfilms at the National Library? Firstly, it made the bishops aware of the drawing power of these records for tourism. Some bishops felt it was better for the local economy to have tourists or overseas correspondents deal with the indexing centres rather than allowing them to look at copies of the records in Dublin or in Mormon libraries in their own countries. This is not to suggest that the indexing centres sought advantage at the family historians' expense. However, the bishops are not genealogists and it is difficult to explain to people outside genealogy that inveterate ancestor-addicts actually enjoy looking at the original records themselves. The bishops in question seemingly feel that results are a substitute for the pleasure of searching.
This new awareness of ancestral research encouraged some of the hierarchy to go a step further and set up diocesan indexing centres for local development. This was done successfully in Armagh. It was also done under Dr Morris in Cashel & Emly and the present diocesan indexing centre there is the Tipperary Heritage Unit. A similar venture is under way in Kerry and this is having a definite bearing on the microfilms. In preparing this article I wrote to each of the 'closed' dioceses for clarification of their stance. Responding on behalf of the Bishop of Kerry, Rev. Gearoid Walsh stated that open access at the National Library was not possible 'because a company has been established recently for research purposes with use of the parish records of the diocese as source material. Obviously, to agree to your request would undermine the company which has been established with the blessing of Bishop O'Suilleabhain'.
It is perhaps worth noting that the registers of Armagh diocese have been on open access for several years at the Public Record Office of Northern Ireland (PROM) as well as at the National Library, and this has not hindered the development of its diocesan indexing project, which is now merged with the local authority centre under the title Armagh Ancestry. If the Bishop of Kerry's only reason for limiting access to the records at the National Library is to protect the new company in his diocese, he would have more to worry about in Albert Casey's O'Kief, Coshe Mang, etc. This multi-volumned collection is available in libraries in many parts of the world (including Dublin) and contains transcripts of the registers of a large number of Kerry parishes.

Ownership
The suggestion of ownership of the registers raised by Archbishop Clifford and that of using them as 'source material' for a research, company, as in the case of Kerry, raises the question as to their actual ownership under canon and civil law. No one would dispute the fact that the parish priest is the legal custodian of the original registers. In this capacity he is entrusted by canon law with their safe keeping during his tenure. But does this make him the owner? And, if so, does it entitle him to assign any associated rights to his bishop? Can a bishop claim ownership of parochial or diocesan property? It appears that the answer to all these questions is Yes. Monsignor Stenson, Chancellor of Dublin Archdiocese, is an acknowledged authority on canon law. He says that parish registers are diocesan property and that the bishop would be the owner during his term of office. He would, therefore, be entitled to make use of them in whatever way he saw fit. He would be further entitled to seek to have this ownership enshrined in civil law. Of course, there is no question of the registers being his personal property and none of the bishops are in any way claiming such a right.
Some bishops are still concerned about the issue of confidentiality and have given themselves added anxiety by the thought that they could be sued for errors appearing in the registers. This latter worry appears to be a by-product of confidentiality and the notion of copyright. It is difficult to imagine any court upholding a claim against a bishop for an error made in a baptismal entry over a century ago.
Illegitimacy is one issue that has given the bishops reason to be cautious about granting open access to the registers in the past. However, it is hardly as much of a 'skeleton in the cupboard' nowadays as it was in the l960s and the most recent baptisms on microfilm are those of people who would now be in their one hundred and fourteenth year. The bishops are perhaps being a bit too protective of these historical documents when anyone can walk into the General Register Office and obtain the birth record of anyone else born in the Republic. If confidentiality is, as it appears to be, the main reason why the Bishop of Down & Connor wishes his records to remain on restricted access in Dublin, it is anomalous that they are completely open at PRONI in Belfast, which is in the heart of his diocese. PRONI appear to have acquired the microfilms from the National Library without the attendant restrictions.

Copyright
The idea of copyright is something that was first suggested in relation to parish registers and their indexes in the late 1980s. At that time the Irish Family History Co-Operative (now the Irish Family History Foundation) was co-ordinating the efforts of the various local organisations which were sponsoring projects of parish register indexation funded by youth training schemes. In order to give the indexing centres some control over the indexes thus created and to allay the bishops' fears concerning confidentiality, agreements were signed between both sides. The prototype appears to have been between the Offaly Historical Society and the Bishop of Meath. Michael Byrne, then prominent in both the Offaly Society and the IFH Co-Op, was instrumental in having this agreement signed. As legal opinion was obtained on this agreement and as Mr Byrne is himself in the legal profession, it was generally assumed that the principle of copyright in the registers and the indexes had been established in this agreement. However, Mr Byrne states that 'when we obtained opinion on the bishop's agreement ourselves, it did not deal with the question of copyright in the registers and was more to do with opinion on the terms of the agreement as regards indexing etc'.
That agreement, and those which followed with other bishops sought to give the centres exclusive rights to index registers. They were not meant to hinder access to the registers themselves or to microfilm copies at the National Library or elsewhere. However, the notion of declaring copyright in parish registers seems to have developed from the beginning. The bishops seem to have become hyper-sensitive to legal matters and this has given rise to yet another issue. A number of indexing centres will not conduct searches in their indexes without the client signing a form pledging not to publish the findings. The reason is apparently that this is part of the agreement with the bishop. One such form demands the client's assurance that they seek their services 'solely to obtain information about my family heritage'. This effectively precludes professional genealogists or people working on one name studies from applying. No doubt the bishops have hypothetical legal entanglements in mind when they make such stipulations, but it is hard to envisage them in context of practical research.
While Archbishop Clifford is of the opinion that he holds copyright in the registers in Cashel & Emly and the matter has not been challenged by the National Library or any of the other institutions which have either microfilm copies of or indexes to those records, the Tipperary Heritage Unit continues to be the 'only Centre having authorised access' to them. The THU is the centre that was set up by the former archbishop, Dr Morris. It is the diocesan indexing centre, though it continues to be subsidised by youth training schemes. But despite having the arch-bishop's backing the THU has not been designated the official Research Centre for South Tipperary by the Irish Family History Foundation. That position is held by Bru Born Heritage Centre, which was developed under the guardianship of Labhrás O Murchú, Chairman of the IFHF, and his wife Una. Bru Born is marketed in Bord Fáilte literature as having a full genealogical service despite the archbishop's assertion that the THU has exclusive access to the Roman Catholic registers for Cashel & Emly. Both Archbishop Clifford and Mr 0 Murchú declined to comment on the issue. It cannot, therefore, be determined whether the archbishop's closure of the records was related to THU being by-passed in favour of Bru Born.

Legal Position
With rather wild assumptions being made about the relevance or otherwise of copyright, legal opinion is important. Muireann O Briain, SC, states that 'Copyright is a right which belongs to the creator of an original work. It is the right given by statute to an author/creator to control the use of his work'. Her opinion is that parish registers do not fall into the category of works entitled to copyright protection as they exist for the purposes of maintaining records in compliance with canon law and they are not 'the work of one person or of joint authorship'.
Ms O Briain continues: '... the parish registers are not compositions, they are a recording of names and facts; neither are they compilations, because they have not been collected and put together, but merely recorded. Nor did the completing of the registers involve any skill on the part of the recorder in compiling them, apart from the skill of being able to write. No judgement came to bear in their preparation or in the pattern or sequence of their recording'. It is her view, therefore, that there is no copyright in the registers.
If, on the other hand, they were adjudged to be entitled to copyright protection, that protection would subsist for fifty years after the year of their publication. But even in the event of their being copyright, 'anyone using the registers or copies of them for the purpose of research would not be infringing any copyright in the works'. This is because the copyright law provides that no 'fair dealing' with a literary work for the purposes of 'research' constitutes an infringement.
At the end of the day, it is only genuine researchers who are at all interested in these records. Yet they are frustrated by narrow views of tourism or by the idea that there are characters eager to dig up the dirt on other people's remote ancestors. Meanwhile, the National Library must continue to turn away enthusiastic visitors. These people are unlikely to be singing the praises of Ireland when they return home.

ADDENDUM:
Since this article was written in 1994, restrictions on access to parish registers at the National Library have been removed except in relation to the dioceses of Kerry and Cashel & Emly. For Kerry it is still necessary to apply to the Bishop for permission. This is merely a formality and it may be done by fax, with the letter of permission being faxed by the diocesan office to the National Library. In regard to Cashel & Emly no one has been granted permission to view the microfilm copies at the National Library. Back in 1994 the then Director of the National Library was expected to act on the legal advice given by Muireann O Briain, SC. Unfortunately, no visible move was ever made. Ms. O Briain's opinion has never been tested.