Library Journal "Digital Libraries" Columns 1997-2007, Roy Tennant
Please note: these columns are an archive of my Library Journal column from 1997-2007. They have not been altered in content, so please keep in mind some of this content will be out of date.
The Copyright War
Copyright as we presently know it is dead. To be specific, copyright law as it currently stands is not only unenforceable, it is widely perceived by the general public as overly protective of publishers and, to a lesser extent, creators. Thus, even as copyright law is strengthened in the legislatures and the courts, it is dead to many in our society. Check the newspaper. Millions of Napster-loving people have violated existing copyright law not only with impunity but also with no sense of wrongdoing (see "The Heavenly Jukebox" for some history). But this isn't just about Napster and MP3 files anymore, it's about any digital content--and since nearly all content can be digitized, that's just about everything. Copyright law is supposed to seek a balance between protecting the right of creators to be compensated for their work--thereby encouraging more creations--and the rights of the public to gain access to it. The public right of "fair use" counterbalances the rights of the author and/or publisher to receive just recompense. (See Jeff Clark's article, p. 44-47.) Publishers don't get it Copyright law has seen several major revisions just in the last 20 years. New technologies such as audiocassette recorders and VCRs have sent the content industries into courts and legislatures to retain or enhance the rights that they thought these technologies would destroy. In fact, those technologies have enhanced their capacity to make money from intellectual content. The Internet doesn't appear to be different. Still, the content industries have followed historic precedent, trying to lobby and sue to protect their rights. Publishers are almost uniformly afraid that their revenue stream will dry up when their content is available for free on the Internet. Those who actually create the content (authors, artists, etc.) are more divided. More than 25,000 musical groups--generally newer ones shut out of the big-label bottleneck--are happy to have their music available via Napster. Meanwhile, publishers such as National Academy Press have offered many full-text titles available online for free. Such access actually increases sales of the print counterpart. Now scientists have demanded that journal articles be made available for free online six months after publication. Dubbed the "Public Library of Science," their manifesto states, "We believe that the permanent, archival record of scientific research and ideas should neither be owned nor controlled by publishers, but should belong to the public, and should be made freely available." Few publishers seem to understand that simply because a certain journal article, book, or song can be freely downloaded doesn't mean that the very same people won't ever want to buy it. They may have already bought it, or they may want to sample it before buying it. Or they may want it in the particular format or way in which you publish it (in a nicely published volume, or with liner notes, etc.). People will pay for convenience, service, and quality guarantees. New technologies=more money David Boies, the lawyer who took on Microsoft on behalf of the Department of Justice, cites both cable television and VCRs as technologies that increased revenues for the very industries that feared they would destroy their business (see "David Boies: The Wired Interview"). But perhaps no one has argued this point more forcefully than John Perry Barlow in his Wired article "The Next Economy of Ideas." "When you're selling [products], there is an undeniable relationship between scarcity and value," he writes. "But in an economy of [ideas], the inverse applies. There is a relationship between familiarity and value. For ideas, fame is fortune." Starving authors and artists know this only too well. You need exposure to create value, and the more exposure the better. You should be so lucky that people distribute your work far and wide for free. Indeed, people now have the technical capability to share content easily and anonymously with others--or access the content that others provide. I explained this in an earlier column ("Peer-to-Peer Networks: Promise & Peril," LJ 9/15/00, p. 28ff.). With Gnutella, or Free-Net, or other true peer-to-peer technologies, it's possible to share whatever you happen to have with anyone within range of your computer. And to do so anonymously, without fear of reprisal. Is this morally bankrupt? Perhaps, but consider this: the simple right to loan a book that you bought is now gone in the digital world, thanks to new legal protections sought by content providers. The National Research Council report entitled "The Digital Dilemma: Intellectual Property in the Information Age" puts it this way: "The information infrastructure has...the potential to demolish a careful balancing of public good and private interest that has emerged from the evolution of U.S. intellectual property law over the past 200 years." Let's recap. Publishers think that widespread digital distribution of their content for free will destroy their economic base. Meanwhile, evidence suggests the opposite. Creators benefit greatly from increased exposure, and they will see no revenue decline unless their publishers do. The only factor left in the equation is the public at large. Would they be any worse off if intellectual property were easier to locate, review, and buy? Publishers fight back But that isn't our problem--it's that publishers will fight hard to deny others the right to distribute their content for free. In a sidebar to the "Heavenly Jukebox," international copyright expert P. Bernt Hugenholtz puts it this way: In the old days of analog media (say, five years ago) the copyright monopoly was limited to acts of exploitation. In the digital environment, because acts of usage necessarily involve some sort of digital copying, the monopoly has expanded to include every conceivable act of transmitting, viewing, receiving, or simply using a copyrighted work. We see this in the Digital Millennium Copyright Act (DMCA) and in the Uniform Computer Information Transactions Act (UCITA). Libraries, the world's best protectors of copyright, will continue to uphold the letter and the spirit of the law--mostly from our sheer terror of being sued--even as it becomes more and more restrictive and our professional associations protest. As Rich Wiggins, senior information technologist in the Computer Laboratory at Michigan State University, wrote in a Web4Lib posting, "What worries me is a world in which millions ignore copyright, so it's dead for them, but libraries and librarians honor copyright judiciously." Some disagree. Walt Crawford, commentator and information architect at the Research Libraries Group, Inc. (RLG), argued on Web4Lib that my position "overstates and oversimplifies the case considerably." However, he basically agrees that copyright law must be changed, mostly to regain the lost balance regarding digital information: "Copyright isn't dead--but (as law) it isn't a set of stone tablets either." Other Web4Lib contributors acknowledge that laws regarding digital copyright are too restrictive, and that many of the public at large get away with ignoring copyright. Will we be irrelevant? Meanwhile, the general public will increasingly consider us not only irrelevant (since they can download so much from the Internet) but also as a barrier to information access. To fight that, we will need to fight for the digital equivalents of the doctrines of "first sale" and "fair use" as if our lives depended on it. (See "Copyright and Intellectual Property Rights," LJ 8/99, p. 34ff. for an explanation of these doctrines, and check the Web4Lib discussion.) To some degree, our professional lives depend on copyright. If we allow publishers to restrict our rights to the information we have purchased so completely that we are unable to provide basic library services, we will have failed in our ability to fulfill our missions. Widespread civil disobedience may be our only ethical option. LINK LIST ALA information on DMCA www.ala.org/washoff/dmca.html ALA information on UCITA www.ala.org/washoff/ucita/ "David Boies: The Wired Interview" www.wired.com/wired/archive/8.10/boies.html "Copyright and Intellectual Property Rights" www.libraryjournal.com/articles/infotech/digitallibraries/19990801 _4925.asp "The Digital Dilemma" www.nap.edu/books/0309064996/html "The Heavenly Jukebox" www.theatlantic.com/issues/2000/09/mann.htm National Academy Press www.nap.edu "The Next Economy of Ideas" www.wired.com/wired/archive/8.10/download.html "Peer-to-Peer Networks: Promise & Peril" www.libraryjournal.com/articles/infotech/digitallibraries/20000915 _16192.asp Public Library of Science www.publiclibraryofscience.org Web4Lib discussion of the topic sunsite.berkeley.edu/cgi-bin/searchweb4lib.pl?query=copyright+death+computers