Thursday, October 27, 2011

Occupy Copyright

I've been mulling this post over ever since Occupy Wall Street and its various local spinoffs got started, but I first wanted to make sure what I did end up saying was more thoughtful than opportunistic (also, Real Life came at me this month with a one-two punch that I'm still a bit staggered from and trying to process, but more about that when I'm at liberty to discuss it!). I'm pleased to see, however, that I'm not the first librarian to connect the dots between the causes fueling the OWS movement and the pressures currently facing libraries.

In the Library With a Lead Pipe gives a great rundown of those colleagues who are out there occupying librarianship in various clever and thought-provoking ways, from trying to overthrow the "Doing More With Less" mindset to demanding an occupation of scholarly literature and/or knowledge. I've already addressed the former issue here in my previous blog post, but today I'd like to take the latter point and drive it off the proverbial cliff by suggesting that we occupy nothing less than copyright itself.

How would we begin to do such a thing? Occupying Copyright is equal parts advocacy and action, and revolves around the following key precepts:

Libraries are meant to coexist with copyright, not stand in opposition to it. I don't know how we ended up in this sad situation where librarians are being equated in some circles with illegal file sharers and the Authors' Guild is suing a nonprofit attempt to make orphaned and out of print works more widely available to readers and researchers, but here we are. It wasn't always this way, you know. When Congress crafted a series of special exceptions for libraries to the U.S. Copyright Code back in the 1970's it was to acknowledge the vital relationship between copyrighted materials and the institutions which collected them for the purpose of advancing human knowledge and not merely the bottom line. Just as copyright itself was once envisioned as a productive force in its original limited incarnation, libraries answered the fair question of who was going to provide reasonable access to this vast proliferation of books and other media to those who couldn't possibly afford to buy it all.

Fair Use must be vigorously asserted in order to preserve it. For too long libraries and librarians have been cowed into accepting an ever-diminishing horizon as their legal right, either at the behest of a risk-averse general counsel or as the result of actual lawsuits- such as the Georgia State Copyright Case, which threatens to severely limit the exercise of Fair Use in higher education. In its original formulation, Fair Use was supposed to put the burden of proof on the offended party whose copyright was allegedly violated, but on a playing field where Big Content can effectively lawyer up until the end of time even the large universities are leery of pushing their luck. Couple this everpresent looming threat with a digital revolution that is pushing the for-profit sector inexorably towards a pay per view content delivery model (either a la carte or in subscription format, like Netflix) and it's all too easy for libraries to resort to coughing up licensing fees for what might otherwise be construed as Fair Use. Rather than accept this "better safe than sorry" mentality, librarians should be educating both themselves and their patrons in how to make their own Fair Use determinations and encouraging the lawful occupation of Fair Use whenever possible.

First Sale should apply to all forms of media- print, electronic, or whatever comes next. The doctrine of First Sale has served as the bedrock of libraries since time immemorial, but technological change, the triumph of End User Licensing Agreements, and recent legal developments are threatening to whittle this fundamental right down into a mere sliver of itself. This is a more difficult issue for individual librarians to occupy, but we can and should be agitating on behalf of our patrons for broader licensing terms from ebook and journal vendors, as well as lobbying Congress to carve out a new set of copyright exceptions that would trump digital licensing for non-profit educational and research purposes. At the recent Interlending and Document Supply Conference in Chicago, one of the presenters only half-jokingly suggested that librarians should form their own PAC, as even a modestly-funded political action committee is capable of wielding significant influence if they are able to stay tightly focused on a small set of key issues. Is it time to consider occupying the lobbying process in order to make these kinds of demands heard?

Libraries exist because copyright exists, but this is by no means a one-way relationship, as not only do libraries buy multiple copies of popular items, but they will also invest in more esoteric materials that the invisible hand of the market might otherwise allow to fail. They also purchase- at no small expense, mind you- the published fruit of the research process in the forms of scholarly monographs and academic journals, materials that simply would not have a market if not for libraries. Libraries also promote books, authors, and the cause of literacy. If we are currently losing the rhetorical battle, perhaps librarians need to open a new kind of charm offensive.


(Pic from Logo Designer Blog, where you can download the image as a free poster!)


marc said...

I completely agree. As a professor, I get very frustrated to see how institutions bend over backwards to avoid being subject to (unfair) litigation. Not that it isn't understandable, given the number of frivolous copyright suits that are filed every day.

Anonymous said...

The article is factually bankrupt and dishonest.

As to Google and the Hathi Trust being sued, the author lies outright. They are being sued over massive infringement. If Google, the Trust, and other would-be pirates took "real" Orphan works (that are actually in the public domain) rather than stealing in-copyright work, no one would care.

Tom said...

Dear Anonymous,

Thank you for your comments, but it is you who are incorrect about the Authors' Guild lawsuit against the HathiTrust and five universities. The AG is suing Hathi et al to impound seven million Google scans in order to block the scheduled release of select orphan works to authorized library users at each university which holds said items.

Much has been written about the (dubious) merits of this lawsuit elsewhere- check out Kevin Smith's excellent summary at

Your language of course says everything- I never thought I'd see the day when librarians would be branded as "would-be pirates" who are guilty of "stealing" in-copyright works. But there you have it.

The exceptions carved out for libraries in U.S. Copyright are just as vital as authors' rights themselves, and it is extremely disingenuous to declare one party in violation of the law when the courts are only just beginning to figure out which set of rights ends the other begins.