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Won’t Get Fooled Again: Day 32

All right, all right. Readers won’t let me get away with the single comment in the last blog entry I had about the article in the New York Review of Books — and I think this feeds into the long-standing conversation I have been having with J A Jacobs. Simply put: I do not think libraries, as institutions, have any role in claiming a “public use” provision within the infrastructure of copyright. In other words, print and paper technology gave libraries a “gap” between those who owned the information and those who want to use it. While library circulation did not threaten the sale of the same material through the private market, information producers were quite comfortable in letting the libraries enjoy the “free ride” of offering their information products without any compensation for the free use. It was good public relations and a “feel good” partnership.

The mass digitization of the information changed that relationship.

I really think what the google technology does, and what the research libraries agreed to when they chose to work with google four years ago to find an “economical” way to digitize their collections, is create a private market version of “public lending right.”

See you on Day 33.

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6 Comments

  1. jrjacobs says:

    I’m not really sure I get what you’re saying John. Are you saying that [w:fair use] and [w:First sale doctrine] — the main sections of copyright law on which libraries are built — are not valid in the digital world? Are you saying that there should be a royalty rights organization for books similar to ASCAP, BMI, SESAC, and SoundExchange? Are you really advocating the destruction of libraries? I think you need to clarify because you’ve completely lost me.

  2. dcornwall says:

    Hi John,

    When I read:

    “I do not think libraries, as institutions, have any role in claiming a “public use” provision within the infrastructure of copyright.”

    I looked at the post of Jim’s you linked to and the papers that Jim linked to. I did not find an instance of “public use.” Could you clarify what you mean by “public use” and why you feel libraries have no role in claiming it?

    Also, since your series is about government information, I don’t see where copyright plays a role. As we both know, most federally produced information is in the public domain. Where does your description of copyright interact with your vision for government information?

    Finally, the suggestion that private publishers “tolerated” a free ride because of a gap between publishers and people who wanted the information doesn’t make sense to me.

    According to the copy of the Constitution available through GPO Access, the copyright clause says:

    “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;”

    The Constitution was not principally concerned with publisher profit, but rather with promoting progress in science and arts. Neither did they intend for publishers to have eternal exclusive control because the copyrights were to be for “limited times.” If the Founders intended perpetual control, they would have left out the “for limited times.” part.

    It was probably for the same purpose of promoting progress over profit that the courts first recognized the First Sale Doctrine back in 1908. It doesn’t seem like a matter of technology and market limitation to me. Because the markets were hurt by the first sale doctrine even in a predominately print age.

    ————————————

    "And besides all that, what we need is a decentralized, distributed system of depositing electronic files to local libraries willing to host them." — Daniel Cornwall, tipping his hat to Cato the Elder for the original quote.

  3. shuler says:

    Sigh. As a librarian with a quarter century of practice I do not advocate the destruction of libraries. Don’t paint my observations with such a broad ideological brush.

    I am making an economic argument rather than a legal one — technology and the control of the intellectual product’s commercial value is substantially different in a digital environment, and as a result — changes the librarian/publisher/user relationship.

    Let me give a simple example. In the paper and print universe of most libraries a quarter century ago (at least those institutions that had a fairly liberal public use policy) any one could go into the library pick up the book, magazine, pamphlet and peruse them without interference or paying a fee. Limitations might come when they want to borrow the item directly, or if they wanted to make photocopies. And certainly much of copyright law prevents the user from copying the work wholesale (or in part) and claiming it as their own or making money from this duplication without paying the rightful copyright owner their due. Fast forward to 2009, walk into most academic libraries, or some public libraries, and you will be required to prove that you are a paying member of the community (tuition, taxes, fees, etc.) to have access to the digital material. Many of the contracts libraries strike with private vendors specifically forbid general use of their services by these “outsiders.”

    Can I imagine a royalty scheme similar to ASCAP, BMI, SESAC for books? Yes. In a fashion, this is what Public Lending Right essentially does; it is what the Google legal agreement does with the digitization of paper books — both schemes redistribute collected fees from users among the creators of the work. Does this mean I advocate the destruction of libraries? Hardly.

    And though copyright is indeed a small issue for much Federal government information, it is still very much in play for local, state, regional, vast acres of legal data, international, and foreign national information sources. So, I do think it is a legitimate perspective to consider when discussing government information. More so, if you want to follow the technological arguments that advocate a federal government that distributes its information in open-source formats primarily, allowing third-party entities to repackage the goods and sell them to the public. I understand we are living in a digital utopia that is somewhat robust with disinterested non-profits who place a different kind of value system on how the infrastructure is built and sustained. But I also have experienced other periods of time when those same good natured organizers were savaged and pushed out of the marketplace by some serious profit-making entities.

    See you on Day 34.

  4. jrjacobs says:

    sigh indeed.

    copyright and licensing are 2 different legal entities (and the legal IS the economic) and should not be confused — nor should the [w:public lending right] be part of the discussion as it is not currently active law in the US.

    We’ve seen a serious erosion of libraries because of the shift from copyright/first sale to contract/licensing of access. but as with copyright, licensing is not a static system or a system to which we must only be reactive but a system in contention and flux. Rather than simply obeying copyright or licensing, librarians have the right nay duty to push those areas so as to shape them in a way that protects the public domain and right of information access. Google is certainly not going to do that for us. Librarians are the only ones who are going to do it.

    Librarians didn’t do that when journals first came online; instead they abrogated their right in the field to publishers/vendors. If we don’t push back now with digital content, we will find ourselves in the same spot — the spot we already find ourselves in in terms of expensive licensing with no guarantees of future access. The google book deal shifts book access from the copyright realm to the licensing realm (a very bad thing IMHO) but it does not preclude other entities from entering into that space, nor basing access on copyright/first sale where it should be. Indeed I can imagine some org like the internet archive / open content alliance doing just that.

    Libraries can and should be proactive in a couple of ways: they can create and preserve local digital collections and make them available under very unrestrictive structures. And they can push back on publishers to demand perpetual access rights to digital content. Some libraries are doing both and doing them successfully.

    I feel strongly that the future of the FDLP should be about both services AND collections (which Jim so eloquently argues in his Against the Grain article). In my mind, working toward that will not only help the field of govt information but positively affect libraries and citizens as a whole. Govt information librarians working hard at both services AND collections will go a long way toward showing their administrations the validity of that perspective and will go a long way in carving out a sustainable role for libraries. Only that future will be a bulwark against extreme economic and legal forces that only care about access insofar as it is tied to economic gain.

    I’m sorry but I don’t believe that your perspective will do that.

  5. shuler says:

    Dan, Jim, James: find my response to your comments here. I say we act on on Dan’s earlier comment last time we clashed over these perspectives and move on to the next item on the agenda…

  6. dcornwall says:

    Hi John,

    I read through your reply twice, but didn’t see an answer to the question that I put to you:

    “Simply put: I do not think libraries, as institutions, have any role in claiming a “public use” provision within the infrastructure of copyright.”

    I looked at the post of Jim’s you linked to and the papers that Jim linked to. I did not find an instance of “public use.” Could you clarify what you mean by “public use” and why you feel libraries have no role in claiming it?

    The one part I think I understand is that by “public use” you really mean “fair use.” That would make your quote read:

    “Simply put: I do not think libraries, as institutions, have any role in claiming a “fair use” provision within the infrastructure of copyright.”

    But I’d still like to know what this sentence means to you. If possible, could you include an example of a library claiming a “fair use” provision that you do not feel applies to it?

    ————————————

    "And besides all that, what we need is a decentralized, distributed system of depositing electronic files to local libraries willing to host them." — Daniel Cornwall, tipping his hat to Cato the Elder for the original quote.

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