:: Digital Libraries Columns


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 They have not been altered in content, so please keep in mind some of this content will be out of date. :: Digital Libraries Columns

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

   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

   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.


   ALA information on DMCA


   ALA information on UCITA


   "David Boies: The Wired Interview"


   "Copyright and Intellectual Property Rights"


   "The Digital Dilemma"


   "The Heavenly Jukebox"


   National Academy Press


   "The Next Economy of Ideas"


   "Peer-to-Peer Networks: Promise & Peril"


   Public Library of Science


   Web4Lib discussion of the topic