We Need Copyright 2.0

It’s time to put the “fair” back in “fair use”

February 1, 2012

I applaud the hard work of everyone who has tackled the thorny issues confronting libraries in the increasingly hostile ebook environment in which we find ourselves. However, I believe we are missing an essential component in any solution: copyright law reform.

At last summer’s ALA Annual Conference in New Orleans, I listened to an impassioned speech by Michael Porter, founder of libraryrenewal.org and an AL columnist, who highlighted some of the great things we are doing to try to keep up with shifting circumstances. There has been an ALA Council resolution on the issue, as well as recommendations from a presidential task force and the creation of the Digital Content in Libraries Working Group—all actions that are increasing awareness of the major issues, such as digital rights management (DRM), restrictive licensing, ebook-lending expiration dates, and the unexplained disappearance of titles from e-readers.

Don’t get me wrong: Having good relationships with publishers, authors, and everyone else in the supply chain is important. But the only way to guarantee lasting public access to the increasingly digitized intellectual wealth of the world is through the reform of copyright law. We need the creation of solid legal exemptions for libraries to break DRM and to own, circulate, and ­archive digital copies.

This is a radical view, I’m well aware. The Digital Millennium Copyright Act has done a lot to frame the DRM issue as an artists vs. pirates debate. Some might well try to lump librarians with the pirates if we took a collective stand in favor of DRM jailbreaking. But thanks to the positive public image libraries still enjoy, such labeling would backfire.

Most patrons do not believe they hurt an author’s profits by borrowing a book from the library. As long as we try to ensure patrons’ continued access to the digitized materials they seek, they won’t change their minds on this point.

There is little incentive for rights holders to negotiate with us in a future in which ownership, fair use, and first-sale doctrines have been replaced with rentals and licensing. In that future, rights holders get to make all the rules, which will benefit them instead of the public interest. Whether they do or don’t realize the marketing advantages of having their products in libraries, any ­decisions they make will be completely up to them. The recent lawsuits against Google Books Project libraries and HathiTrust may be only the start.

If we can no longer provide information to the public because of rules and fees dictated to us by the rights holders, what purpose would we serve?

A call for a new paradigm

For many years, our collective refrain has been “Not everything can be found on the internet.” While still applicable to a vast quantity of information, it is becoming less and less true every year. Perhaps our new defense should be “Not everything on the internet is free and accessible for all.” Does anything speak more to the core of our profession?

I am not a lawyer or a lobbyist, and I do not know how exactly we would reform copyright law. Maybe no one is talking about this option because it seems too daunting, but I see no other option. If we cannot secure these rights, it is not only libraries that lose but also our patrons. They will lose access to the depth and breadth of human ­knowledge. Without this kind of fundamental change in strategy, libraries will continue to fight a losing battle.

NEAL STARKEY is head technology director at the Tippecanoe County (Ind.) Public Library.



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