This is the second in a series of posts in which we explain the the reasons behind our recent recommendations for strengthening Title 44 of the U.S. Code.
Three of our recommendations suggest strengthening the language of Title 44 in order to ensure free public access to government information.
Retain and enhance Free use by the General Public.
Modernize §1911 to retain free access and to reflect the broader scope of Public Information. Sample text: "Depository libraries shall make all Public Information obtained through the depository program available for the free use of the general public."
Prohibit fees for govinfo.gov.
Change wording of §4102 to remove “fee” and replace with same “free” language as Chapter 19. Sample wording: “The directory and the system shall be made available to the general public without charge.
Make all digital government information free.
Modify §1708 to: allow GPO to sell paper (including print-on-demand, and microformated) documents to retailers at a wholesale price; mandate that GPO offer to FDLP libraries as selectable items all print/POD documents that it offers for sale to retailers; prohibit GPO from selling ebooks, PDFs and other digital formats.
The current law addresses fees and free access in three different sections of Title 44.
Section 1911 requires FDLP libraries to make government publications available for the free use of the general public.
Section 1708 allows GPO to sell government publications either directly or through "book dealers." In the past, GPO maintained its own brick-and-mortar bookstores, and still maintains the GPO bookstore Website.
Our recommendation to change §1911 would simply modernize the text of the law to include digital information deposited in FDLP libraries. It makes it clear that FDLP libraries are required to make all government information that they receive through the depository system — including digital information — available for free to the general public. It retains the essential phrase “general public” thus ensuring that the FDLP is for everyone, not just the constituents of individual libraries.
Our recommendation for §4102; would ensure that govinfo.gov and its successors are always made available for free to the public. Currently, §4102 explicitly allows GPO to charge for access to the contents of govinfo.gov and even to the metadata that describes those documents (the “directory”). Our recommendation would remove the wording that allows charging for this service, would require GPO to offer this service for free, and would add the phrase “general public” to make Chapter 41 and GPO conform to the same requirement that FDLP libraries have in Chapter 19. This would give GPO’s current policy of free access the force of law. It would correct the uncertainty in the current law that allows GPO to decide to charge for online access. It provides additional protection for free access because even Congress could not make GPO charge for access without changing Title 44 again. This also fixes a problem in the current wording of the law that allows GPO to charge for access while also requiring it to provide free access to FDLP libraries. (This fee/free bifurcation was ultimately shown to be untenable when in the early to mid-1990s GPO charged fees for access but later dropped their subscription fees.1 )
Our recommendation to change §1708 would allow GPO to continue to sell paper and ink and other so-called “tangible” publications wholesale to retailers so that the retailers could sell them directly to the public. It would, however, prohibit GPO from commercializing any digital government information. Today, GPO sells ebooks (many of which are available without charge on the web2) through resellers such as Amazon and Barnes & Noble (Vance-Cooks). While it makes some sense for GPO to sell paper-and-ink books, it makes neither commercial nor policy sense to offer free digital documents for sale. Our recommended change would allow GPO to distribute digital documents for free through commercial vendors.
Effects of these changes
Making these changes would have several positive effects.
- It ensures that all US government digital public information will be available for free to the general public by getting rid of conflicting, out-of-date wording that allows GPO to sell this information.
- It makes free-access to digital government information the law, thus making it impossible for GPO to impose fees with a policy change.
- It modernizes the law so that government information deposited in FDLP libraries through Chapter 19 and government information provided online by GPO through Chapter 41 are treated the same way: both are provided free to the general public.
- It modernizes the language of Chapter 19 to ensure that FDLP libraries that build collections of digital FDLP information will offer those collections for free to the general public.
- When GPO launched the first incarnation of govinfo.gov, “GPO Access,” it charged the public for access while providing free access (as required by §4102) to FDLP libraries. This model failed and was abandoned after less than two years (GPO Press Release: “GPO Access Services Free as of December 1, 1995” and Relyea), ↵
- See, for example, Public Papers of the Presidents of the United States, Barack Obama, 2009, Book 1 for sale at Barnes & Nobel and free at GPO.gov. ↵
- Jacobs, James A. and James R. Jacobs. 2017. This is not a drill. The future of Title 44 and the depository library program hang in the balance. Free Government Information (July 27, 2017). ↵
- Relyea, Harold C. 2001. Public Printing Reform: Issues and Actions, CRS report 98-687. Washington, D.C.: Library of Congress. Congressional Research Service. April 5, 2001 ↵
- Vance-Cooks, Davita. 2017. Remarks before the Committee on House Administration U.S. House of Representatives On Transforming GPO for the 21st Century and Beyond: Part 2. (July 18, 2017). ↵
James A. Jacobs, University of California San Diego
James R. Jacobs, Stanford University
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