Some libraries, library organizations, and library managements believe they can “manage” their collections better by first digitizing historic collections of books and other paper and ink information sources and then weeding their collections of these materials. Such projects will reduce the number of copies held in the aggregate by all libraries (Lavoie, Schonfeld, Schottlaender, Yano). One problem that these projects often overlook is the subtle (and not so subtle) differences between the legal standing of paper and digital objects with regard to access and use. Too often, creators of digital objects attempt to impose copyright restrictions on the digital objects even if the originals were in the public domain. Additionally, digital objects are often encumbered with licenses and technological restrictions that limit how they can be used and who can use them. The digital objects are often just not as accessible or as usable as the original print. How bad would it be if we threw away our print collections in favor of digital collections that are less accessible and less usable?
Randal C. Picker, who is Leffmann Professor of Commercial Law and Senior Fellow at the The Computation Institute of the University of Chicago and Argonne National Laboratory University of Chicago Law School, has written a paper and created a presentation on just this issue.
- Picker, Randal. 2013. Access and the Public Domain. Rochester, NY: University of Chicago Institute for Law & Economics. Coase-Sandor Institute For Law And Economics Working Paper No. 631.
- Picker: Access and the Public Domain (Fordham IP Talk), YouTube (Apr 6, 2013).”This is a version of a talk that I gave at the Fordham IP Conference on April 5, 2013. It is based on my paper Access and the Public Domain, which was published in the San Diego Law Review.”
In the paper, he considers how legal issues affect digitization projects such as The Internet Archive, JSTOR, Google Book Search, HathiTrust, and THOMAS.
His take-aways from the presentation are:
- Access rights and use rights are different animals and operate in different legal settings.
- Even though the public domain is coming online, the financing models for the projects will result in efforts to restrict use ina variety of ways.
- Those efforts will be situated at the intersection of technology controls, contract, terms of use, copyright and the CFAA (Computer Fraud and Abuse Act).
- Perhaps a truly public public domain, something like the DPLA perhaps, is required to avoid the path of non-copyright control over the public domain.
Hat Tip: ARL Policy Notes.
Endnotes
Lavoie, Brian F., Constance Malpas, and J.D. Shipengrover. 2012. Print Management at “Mega-scale”: a Regional Perspective on Print Book Collections in North America. Dublin, OH: OCLC Research. http://www.oclc.org/research/publications/library/2012/2012-05.pdf (Accessed July 19, 2012).
Schonfeld, Roger C., and Ross Housewright. 2009. 28 What to Withdraw: Print Collections Management in the Wake of Digitization. Ithaka S+R. http://www.sr.ithaka.org/research-publications/what-withdraw-print-collections-management-wake-digitization.
Schottlaender, Brian E.C. et al. 2004. 82 Collection Management Strategies In A Digital Environment, A Project Of The Collection Management Initiative Of The University Of California Libraries, Final Report to the Andrew W. Mellon Foundation. University of California, Office of the President, Office of Systemwide Library Planning. http://www.ucop.edu/cmi/finalreport/index.html.
Yano, Candace Arai, Z.J. Max Shen, and Stephen Chan. 2008. Optimizing the Number of Copies for Print Preservation of Research Journals. Berkeley, CA: University of California Berkeley, Industrial Engineering & Operations Research. http://www.ieor.berkeley.edu/~shen/webpapers/V.8.pdf.
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This is perfect timing as the Library of Congress just announced yesterday that they’re seeking “no cost” digitization proposals: “Opportunity Knocks: Library of Congress Invites No-cost Digitization Proposals”. As Picker notes so clearly and concisely in his talk and paper, access rights and use rights — even of public domain materials — are tied up in copyright and contracts. And so, he comes to the conclusion — which I 100% agree with — that we need a public Public Domain.
Without an affirmative notice from the originating agency, the uncertainty about copyrights in Federal Government information often leads to unnecessary restrictions on Government Works (as defined in Section 101 of the U.S. Copyright Act). A notice would facilitate compliance by redistributors and users with 17 USC 403, Notice of Copyright: Publications Incorporating U.S. Government Works.” Entities seeking to commercialize or recoup their “sweat of the brow” investment in mass digitization often impose use restrictions or claim ownership rights in public domain and Government works. They usually want credit as” the source” and often brand the copies they distribute with watermarks. Just because someone claims an interest doesn’t make it so. Ownership of copyright is distinct from ownership of the material object. Making facsimile copies does not confer or alter ownership rights in the underlying protected, public domain or Government Work. Also note that the redistributor or supplier of such works has no rights under the Digital Millennium Copyright Act (Title 17 USC 1201) to prohibit circumvention of technological protection measures that simply control access to digital public domain or Government Works. In such cases, it is lawful for users to circumvent the technological protection measure because the prohibition does not apply to materials that are not protected under Title 17. See: Federal Register/Vol. 77, No. 208/Friday, October 26, 2012/ Docket No. 2011-7. p. 65271. Library of Congress. U.S. Copyright Office. Exemptions to Prohibition on Circumvention of Copyright Protected Systems for Access Control Technologies. (IV) Classes Considered But Not Recommended. (A) Literary Works in the Public Domain-Digital Access. http://www.copyright.gov/fedreg/2012/77fr65260.pdf