Future of the Library- Libraries and the Fate of Digital Content

In a conference on technological change and intellectual property at Ohio State University College of Law earlier this spring, Ann Bartow (Univ. of South Carolina School of Law) compared the intellectual property challenges libraries face to those of Napster. The more libraries provide remote access to resources owned or linked, the greater the resemblance to Napster's directory-guided sharing of music files among its users. If our institutions were to be placed under

Napster-like legal restrictions, there would be no protection for us or our users in providing and using electronic resources. So Bartow proposed something simple and bold: federal legislation to recognize libraries formally as our main conduit to the information commons where unfettered access can be had—irrespective of the other restrictions under which commercial and noncommercial intellectual property can be used outside of the library domain. Bartow suggests this status for libraries could be implemented by statute as a "Library Use" corollary to the Fair Use section of our copyright law (Section 107, Title 17).

Startling and provocative as the Napster analogy and this proposal may seem, it is not as if currents of thought haven't moved already in this direction. This past year, Daniel Chudnov's LJ article "Docster: The Future of Document Delivery?" (LJ 8/00, p. 60) applied the Napster analogy to a technologically enabled version of interlibrary loan (ILL) that would improve service for our users and ourselves and could be sanctioned responsibly under something like Bartow's legislative solution. Also accessible on the net, now in its second iteration, is H.M. Gladney's "Digital Preservation Archiving and Copyright: Problem Description and Legislative Proposal" (www.almaden.ibm.com/u/gladney/ArchCopy.htm)—which offers a more modest statutory solution to protecting library archives' right to maintain digitally published information regardless of what happens elsewhere to the material in the commercial market. Finally, we have the National Academy of Sciences report, "The Digital Dilemma: Intellectual Property in the Information Age," which offers the following recommendation: "Congress should enact legislation to permit copying of digital information for archival purposes, whether the copy is in the same format or migrated to a new format." The forces at work in the current state of intellectual property compel us to return to the central principle of our modern copyright law: balance in aid of its primary purpose.

Since the 1976 updating of U.S. copyright law, we have tried, however imperfectly, to codify a balance by addressing the original purpose of the Constitutional clause from which our intellectual property legislation derives: to provide incentive for creators to share with society so that the latter can benefit in all of the various ways we might term "progress." The securing of the creator's or copyright holder's right to a form of quasi-property in the products of creativity is a means to this end. But the philosophical basis of this instrumental idea does not consider "writings and discoveries"—which have sensibly come to include every creative expression that can be copyrighted and patented—as "real property" to which the creator/owner and heirs have a "natural" right forever. Despite a cultural tendency to think in these terms anyway, the Copyright Act of 1976 codified the notions of certain exemptions for library functions (including ILL) in its own section (108) and for its and other users through the section on "fair use" (107).

But other provisions of the law and its practice had been pushing in the opposite direction even before 1976. The 1909 revision of copyright law coined the "work for hire" doctrine, by which publishers/employers rather than authors may become the copyright holder. Whatever the doctrine's useful application, over time it became the dominant mode of producing, disseminating, and maintaining intellectual property during the 20th century. Thus, corporate copyright owners gradually assumed the status of "authors" as well, and the tendency to regard intellectual property (a term that, over time replaced "writings and discoveries") as real property, especially that owned by abstract "corporate persons" was a natural progression.

More recently, the Copyright Term Extension Act (CTEA) of 1998, which provides conformity with intellectual property law in the international arena and benefits for corporate authors, does little if anything for incentives to human creators—especially with respect to works that would have entered or were already in the public domain, free for use, until CTEA's advent.

The Digital Millennium Copyright Act (DMCA), also enacted in 1998, offers minor advantages for libraries, mostly in terms of making digital archival copies. However, it is more restrictive of content use and access to digital resources than has been the case in the more traditional realms of paper and film. Currently, Congress is considering legislation that may allow educational institutions, at least, breathing room to practice distance education more readily under the DMCA. As of this writing, S.487, the Technology, Education and Copyright Harmonization Act, or TEACH, is a probable candidate for Senate approval.

In other intellectual property legal spheres, the signs of enclosure are manifest. Pending database legislation may not only cover the sorts of research labor that isn't sufficiently creative to be copyrightable but also endanger access to public domain works and facts in the process (H.R. 354, Collections of Information Antipiracy Act). The influence of major corporate players on the Internet may help restrict the acquisition and use of domain names, and even the use of trademark names that have other meanings as well (Playboy Enterprises has already litigated on behalf of its own more than once).

In contract law, the Uniform Computer Information Transactions Act (UCITA), in play in state legislatures, could end up establishing contract law more advantageous to software producers than to consumers of all types, including libraries and corporations. Further, the once seemingly sacrosanct tradition of linking to openly accessible resources on the Internet is also at risk, put in peril by a series of still-unfolding legal decisions in the case against publishers of DVD decryption code that allegedly violates a provision of the DMCA.

Taken alone, all of this does not bode well for libraries challenged to adapt to providing resources for their various communities. Something like a statutory exemption, a cultural medal of honor, seems temptingly attractive: a simple solution to cut through the evolving, unfavorable complexities of intellectual property law. But foreboding as such adverse legal developments may seem for libraries, there is, arguably, greater potential harm if they are allowed to proceed unfettered, transforming intellectual property into permanent property.

If one is sufficiently open-eared to the public exchanges on the controversy over Napster—is it theft or a sharing right?—you can hear a multitude of issues in play: resentment against the monetization of living cultural communication in the form of music, yet a certain lack of respect for artists as well as the music industry, its rationalization often secondary to the net-conditioned desire to consume omnivorously and excuse the habit. Pervasive marketing of the music industry has had a large role in fostering the Napster response. "Any time, anywhere" may be a library ideal for providing resources. But in our own caretaking of the cultural commons, this credo is governed by values and obligations that address the contributions and needs of all partners in the equation—producer, user, and facilitator.

Recently a music industry representative at the annual convention of the National Association of Recording Merchandisers (NARM) proclaimed, "Music isn't a product anymore. It's a service" (reported in Sound & Vision, 6/01). This statement echoes one attitude that is held in common by consumers and producers (but not artists) in the dispute and is the source of the problem. When art is a service, it becomes thought of as a utility. That is to the benefit of the utility supplier, who wants as much of it purchased in a habitual manner as possible.

On the other hand, the utility consumer, having come to depend on the habit, wants it to flow just as continuously, too—but, wherever possible, without incurring cost should technology and opportunity be able to assist. Meanwhile, the artist is caught in the middle, where his/her contribution may receive only marginal recognition at best, though it is apparent to the artist, at least, that what is being produced is no "utility" to be taken for granted at all.

These observations may or may not go down easily in some quarters. Intellectual property derives from inventive communication within society, and on its own has no absolute market or other value. That is why such human creations can never be monetized completely, except by an arbitrary force of legislative will and why resistance is always ready to spring to the fore.

If the current scenario continues to unfold with no change in course, the resultant picture doesn't look bright for libraries. But it's not the whole picture by any stretch.

The same digital and networked technologies that have brought us an abundance of creative expression and resources have led to some inventive strategies and potential for freeing them from excessive market control and even adding to their number resources offered freely from the outset. Following are a few of these countervailing developments.

The proliferation of databases with public access. As anyone who has spent much time on the web knows, authoritative resources of all types have been making their appearance at an accelerated rate. In my own domain of interest, film and nonprint media, for instance, the Internet Moving Image Archive (www.moviearchive.org) offers high-quality video files of "ephemeral" short films from the Prelinger Archives. This collection of short subjects from our social, cultural, and commercial past is part of a larger ongoing effort, the Internet Archive (www.archive.org), which intends "to create a public library for researchers, historians, and scholars." This purpose might apply as easily to more extensive and traditional resources, especially scholarly and scientific research.

Government-affiliated enterprises such as PubMed (www.ncbi.nlm.nih.gov/PubMed) and PubSCIENCE (pubsci.osti.gov) offer searchable citations of research literature often linked to full text provided at participating publisher web sites. The NEC Research Institute's ResearchIndex: The NECI Scientific Literature Digital Library (researchindex.com or .org) openly provides its own and third-party content for noncommercial purposes in a comparable way. Further, some individual scholarly and research publishers as well as aggregators are becoming more agreeable to offering select back files, preprints, and other collections in an open and cost-free manner. These activities are based upon freely accessible resources, which counters the movement toward protective database legislation mentioned earlier.

Content designed to be shared. A new movement, OpenContent (www.opencontent.org), so far very small and academic but with intriguing potential, parallels the "open source" software movement (which developed Linux, among many other products). OpenContent does something similar for materials more likely to be subject to copyright than to patenting: in short, "just about anything that isn't executable." A survey of the OpenContent site reveals the very modest but evolving diversity of educational materials available under this concept.

OpenContent applies a licensing scheme similar to that of open source software's General Public License. The OpenContent License sets terms of content use that seem to draw on the advantages of materials available under both copyright and public domain conditions. It's a hybrid scheme that allows the almost unrestricted dissemination of OpenContent creations (for commercial as well as other purposes), their modification and improvement by the original and subsequent creators over time, and the tracking of contributions for proper credit—not to mention the continued availability of the creation in all of its published forms.

Clearly, this movement is most directly rooted in the communicative and communal aspects of intellectual property. Much OpenContent material is academic in nature, and the impulse to share in this community crops up elsewhere as well. Recently MIT, forgoing its own plans for formal distance education, announced its intention to make available on the Internet course materials for unrestricted access by anyone. While this move may have serendipitous PR benefits for MIT's formal programs of study, it certainly enlarges access to often authoritative information for self-motivated and occasional learners everywhere. Whether such a move will become a trend remains to be seen, but it represents a strategy somewhat complementary to that of OpenContent.

Guerrilla actions: coercive, subversive, and preventative. A movement that intends to reach beyond freely available but privately owned resources is the Public Library of Science (PLS) (www.publiclibraryofscience.org). This organization's ultimate goal is "the establishment of international online public libraries of science that contain the complete text of all published scientific articles in searchable and interlinked formats." Having produced an ambitious manifesto, the scientific members of PLS, including Nobel laureates, are dissatisfied with the slow pace of efforts such as PubMed and are preparing a September 2001 boycott to back their cause. As of that date, PLS signatories vow only to publish in journals that have agreed to free distribution rights to their research content through PubMed and similar vehicles within six months of initial publication.

Moving into the world of proliferating patents that many claim are unjustified and stifle innovation, a handful of strategies have been emerging:

The Internet enterprise BountyQuest (www.bountyquest.com) targets dubious commercially used patents, then offers a reward to its network of scientists, students, and patent law experts to uncover prior research literature that can overturn them. A present challenge to Amazon.com's "1-click shopping" business method patent is also the result of its endeavors.

A commercial enterprise, IP.com (www.ip.com), has befriended smaller corporate intellectual property producers and even open source software innovators. IP.com provides a professional documentation service that enhances legal protection for innovative technology disclosures, both complex and simple, that have not gone through the patent process but may be subject to infringement by others that do.

The latest development in this sort of "defensive publishing" takes the process a step further. IP.com has collaborated with the open-source software advocacy group Foresight Institute, in a venture called PriorArt.org (www.priorart.org). For innovators who want to keep their work in the public domain, PriorArt.org will establish an authoritative database that it expects to be accessed by patent offices worldwide during their literature searches, thus claiming to help "to stem the tide of bad patents." Retroactive and proactive strategies like these operate as a moderating influence on the headlong pace of intellectual property generation and acquisition by major market forces.

In a networked environment where deliberately free resources gradually proliferate and resistance to the rest—organized or maverick, legal or quasi-illegal and individual—manifests itself, it is nevertheless unlikely that we'll see an all-or-nothing revolution. The proverbial eggs will never end up in one basket or another. We're back to balance, in practical as well as legal reality.

Consider journal publication. What we need is an optimal and flexible means of disseminating the literature to fulfill its various purposes in research, formal teaching, and general public information. A totally controlled and pay-per-use solution to resource distribution in private hands, even backed by adequate technology to deliver it and modestly priced, will not cover all the broad spectrum of need tied to human idiosyncrasy and spontaneity.

What we'll live with instead is a mixture of resources across the spectrum—from freely usable to selectively purchased and accessed—that have to be tied together in a responsible way that respects ownership and need, within the most seamless interface possible for our communities. For resources that are more often free and covered by intellectual property law other than copyright—those tending toward information in nature—this process is likely to evolve more smoothly. For resources of traditional creative expression—literature, music, film, and art of all other stripes—the going is likely to be rougher and slower to achieve the same effect and at greater licensing cost unless more user-favorable trends in copyright law begin to prevail.

The signal importance of Napster, regardless of its legality, is its potential as a new means of creative product distribution through new formations of the creative and consuming communities. The ownership, distribution, and control system of the music and other industries long in place for these products, however, can still claim some virtues of their own and will be hard-pressed to relinquish their own future. As a result of the adaptations they'll make to new methods of distribution, a hybrid system of resource provision will need to evolve ever more clearly.

The challenges libraries face, in terms of offering relevant information services, will be to apply every advantage of new technology to pull together wonderful resources from disparate origins and conditions of use. Standards such as OpenURL and Digital Object Identifier (DOI), dynamic content linking tools such as SFX (www.sfxit.com) and the advent of the more sophisticated "semantic web," and standardized but customizable user interfaces such as MetaLib (www.exlibris.co.il/MetaLib) will target and reach online content maintained under different conditions with increasing dependability and convenience to users of every skill level, making the most of the resources we can have in abundance and those we selectively choose to budget.

The publications that libraries produce and store locally to meet their unique community needs can become part of the same process and interface. Motion visual materials, whose proponents like myself so often claim to receive indifferent cataloging treatment for their intellectual access, will benefit from retrieval tools as well.

The University of Kansas has been developing VISION—the Video Indexing for Search Over Networks—a system for digitizing, compressing, storing, indexing, searching, and retrieving video and audio information down to segmented content level—a far cry from the too-general access for video programming that we've often lived with in the past (www.ittc.ukans.edu/~sgauch/DVLS.html).

When Napster is tamed, rehabilitated into a business model—its slogan now almost famously ironic, "Millions of Napster users can't be wrong"—some writing may be visible on the wall. Of course millions of users can be wrong, by the dictates of established law and social values. But if so, their wrongdoing has the merit of highlighting a larger social wrongdoing. It is doubtful that "information wants to be free," an insight that John Perry Barlow attributed to Stewart Brand—but it certainly needs to be freer and eventually free outright as it enters a public cultural commons.

Libraries have played and must continue to play a vital role in seeing that the intellectual capital of society does not evaporate uselessly as they satisfy community needs and foster individual empowerment and expression. The Ohio State intellectual property conference drove another major point home that complements and extends this thought and should spur us to continuous action: copyright law must change and adapt to evolving technology and society, or it will surely be replaced by a comprehensive regime of more restrictive contract law, both national (such as UCITA) and international (such as agreements fashioned by the World Trade Organization).

Those of us on all sides of the issue, as producers, users, and facilitators, must be willing to reshape intellectual property law to distinguish and accommodate varieties of need and use, not merely content as property plain and simple. A private citizen seeking insight for personal gratification at his/her public library, or a student needing to demonstrate mastery of subject knowledge in formal education—neither of these uses should be treated as identical to a transaction that may apply to a competitive commercial user.

As John Berry noted recently in LJ (7/00, p. 6), Thomas Jefferson made the greatest editorial act in U.S. history when he revised his list of three exemplary rights ("life, liberty, and…") to read not "property," but instead "the pursuit of happiness." The latter, a permanent feature of human society, precedes any notion and use of private property. As library practitioners who deal in connections and revelations that result from people using a kind of property more evanescent than real, we should follow Jefferson's example always.