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Discussing DLC’s Title 44 Recommendations. Thoughts and questions

Depository Library Council (DLC) released its recommendations for Title 44 reform yesterday.

  • Title 44 Reform Recommendations from the DLC (October 03 2017) [PDF file].

These recommendations will be at the center of discussions at the upcoming Fall 2017 Depository Library Conference. The entire Monday afternoon session (October 16) will be devoted to a discussion of Title 44 with Depository Library Council (DLC).

A context for discussion

When we proposed changes to Title 44, we suggest that any recommendation for such change should address at least one of the following four principles.

  1. privacy
  2. free access and use
  3. preservation
  4. modernizing the scope of the FDLP

As we head into discussions of Title 44 at the upcoming DLC meeting, we suggest that attendees evaluate any Title 44 changes being recommended by turning those principles into questions:

    Does this recommendation…

  • protect the privacy of users?
  • help ensure long-term, free public access and use of government information?
  • help ensure the long-term preservation of government information?
  • modernize the scope of the FDLP for the digital age?

Analysis of DLC recommendations

§1901: Redefine “Government publication” so that government information in all formats will be incorporated into the Federal Depository Library Program.

  • This is a good suggestion that addresses principle 4, but it could be strengthened.
  • We believe that DLC made a small error in a second, related, recommendation (page 4) that suggests that §3502 and §4101 be ammended so that “publication” is defined to include all formats of information. DLC says that this "parallels our recommendation to amend §1901." We believe that what DLC meant to suggest is that both §1901 and §4101 should reflect the existing wording of §3502. We re-read all the publicly available comments and could not find any suggestion to change §3502.
  • We and others (Stanford, Harvard, University of CA, GODORT, and Digital Library Federation (DLF)) suggested that the definition of "public information" used in §3502 be adopted into §1901 and §4101. We suggest that it is essential that the definition here be updated, not just to include digital and future formats, but also to embrace the fact that public information is no longer distributed only as "publications." By incorporating the terminology of "public information" already embedded in §3502, the scope of the FDLP would better match how information is packaged in the digital age. It would include, for example, multi-part PDFs, audio-video presentations, and databases. It would also make it explicit that the scope of the FDLP would not be constrained by the form, format, circumstances, or methods of disclosure or dissemination.
  • As we have suggested, using the existing definition of §3520 and the categories of information defined in OMB Circular A-130 would also provide a clear demarcation between "Records" (which contain the "transactions of public business") and public information (which has been disclosed, disseminated, or otherwise made available to the public).

§1904: Ensures that FDLP libraries can select "publications" rather than "classes" of publications and select in any format (including digital).

  • This, too, addresses principle 4. We suggest that two clarifications are needed. First, it should reflect the definition in §1901 (see above) and not limit selection to "publications."

  • Second this recommendation should make it clear that, when a depository library selects digital information, a copy of that digital information will be deposited into the library's own digital collection. (See DLC's recommendation for §1911 and §1912, below, which makes this clear.)

§1909: Remove the "10,000 books" collection size requirement and replace it with a requirement that a library "have physical and/or electronic collections sufficient to indicate organizational capacity to successfully participate in the FDLP."

  • This does not directly address any of the four principles. As written, it seems to be designed only to accommodate GPO's All or Mostly Online Federal Depository Libraries policy. While such pseudo-"collections" may serve a useful service function, they are not technically depositories because nothing is deposited in them.
  • We suggest that a recommendation that was less vague about the requirements for a digital FDLP library could modernize the current requirement. Suggested wording: Change §1909 to require a depository library a) to hold at least 10,000 books or their digital equivalent, and b) demonstrate the organizational capacity to successfully participate in the FDLP. In addition, Title 44 should also define “depository library” as a library that accepts deposit of federal government public information in physical or digital formats. This would address principles 2, 3 and 4 and would help ensure long-term free access and use as well as the preservation of digital government information (see recommendation for §1911 and §1912 below).

§1911: Would permit selective depositories that are not served by a regional depository to dispose of government publications after retaining them for five years.

  • This is a bad recommendation. It would reduce access and preservation by allowing more of the FDLP Historical Collections to be discarded in states not served by a regional depository — in other words in states where the need for tangible access is greatest. It is clearly meant to fix the problem created by GPO's Regional Discard Policy. That policy is designed to provide "flexibility" to a few Regional depositories, but it does so by reducing the flexibility of Selective depositories. (DLC explicitly describes this reduction in flexibility as the reason for this recommendation.) Fixing a bad policy with an equally bad policy does not fix the problem, it magnifies it.

§§ 1911 and 1912: Would allow Regional depositories to hold authenticated digital copies of government publications instead of paper copies.

  • This addressess principles 2 and 3. It is a reasonable recommendation that also addresses the space needs of Regionals. It is important to note that DLC clearly states that, in order to withdraw a paper copy, the Regional would have to "hold" a digital copy, not just point to a copy held by GPO. This is an important distinction. (Although GPO’s broken regional discard policy does not contain this requirement, adding this requirement here could prompt GPO to fix that policy.) DLC even explains the advantages of this as encouraging wider distribution of authenticated electronic copies. This would help "ensure their survival over time" and help ensure access "should a technical failure or government shutdown render GPO’s authenticated electronic copies unavailable." Bravo!

§4101 and §4102: Affirm that the public shall have no-fee access to electronic government information.

  • This is a good recommendation that addresses principle 2.

§4101: Add provisions governing privacy.

  • This is a good recommendation that addresses principle 1. We would like to see a more specific recommendation that specifically prohibits the use of technologies that track individual user activity and prohibits the use of third-party web measurement and customization technologies. We explain the need for these changes in an earlier post.

The Missing Recommendations

DLC describes its “methodology” as identifying widely-held and distinctive ideas that were submitted to it and that appeared on discussion venues such as Govdoc-L and FGI. It describes its recommendations as reflecting a “considerable measure of consensus within the community.” It did not rank its recommendations or indicate which were widely-held and which were “distinctive.” Neither did it indicate if it got recommendations that it did not pass on to GPO.

We have not identified every public recommendation that DLC left out, but we would like to highlight two that we noticed.

The National Bibliography

In it’s recommendations, the Government Documents Round Table (GODORT) noted that preservation must include description as well as conservation. It recommended that §1710 and §1711 should be ammended to authorize the preparation and maintenance of a national bibliography of federal information as defined in §1901.

We agree with GODORT’s recommendation. Building the National Bibliography is essential to principle 2, 3, and 4.

Make all digital government information free

Our recommendation supporting free access included the suggestion that we "Make all digital government information free." Specifically, we suggested that section §1708 be modified:

  • to mandate that GPO offer to FDLP libraries as selectable items all print/POD documents that it offers for sale to retailers, and
  • to prohibit GPO from selling ebooks, PDFs and other digital formats.

This may seem like a small point in the context of so many big issues, but we believe it is both a matter of principle and practicality to close the existing loopholes that allow GPO to sell digital government information.

This was brought home to us just this week, when GPO announced the launch of a "newly designed, user-friendly" U.S. Government Online Bookstore which sells freely-available ebooks.

Here are two examples of items for sale:

  • U.S. Army Psychiatry in the Vietnam War: New Challenges in Extended Counterinsurgency Warfare. The ebook is $9.99 in GPO Bookstore and free from army.mil as listed in GPO's Catalog of Government Publications which has a PURL that points to GPO's "permanent acccess" copy.

  • NASA's First 50 Years: Historical Perspectives; NASA 50 Anniversary Proceedings. The ebook is $14.99 in GPO's bookstore, but is free from NASA in ebook (epub and mobi) and PDF formats. GPO’s lists this book in its Catalog of Government Publications and uses a PURL to point to GPO's permanent access copy of the PDF. But GPO does not provide this book for free in either ebook format (which are more functional for hand-held e-book readers like the Kindle). GPO should not be using this “freemium” strategy of offering a less-functional version of a product for free while selling the more functional version.

We know of no justification for this commercialization of free public information. While it makes some sense for GPO to sell paper-and-ink books, it makes neither commercial nor policy sense to charge money for digital documents — particularly when they are already freely available! GPO tried charging for free information back in 1994 with "GPO Access" (the first version of what we now know as govinfo.gov). The policy failed then and it will fail again. As long as we are modernizing Title 44, let's make all digital government information free!

Summary

There are some good recommendations for improving Title 44 on the table. We know the public comments also included some bad ideas. Some of these are simply unnecessary (e.g., no change is needed to Title 44 to allow digitizing the Historical Collection). Some seem aimed at short-term tactics rather than long-term principles. Some would actually harm one or more of the four principles.

We look forward to a lively discussion at DLC. See you there!

Authors:
James A. Jacobs, University of California San Diego
James R. Jacobs, Stanford University

CC BY-NC-SA 4.0 This work is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International License.


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