August 29, 2014

To Share Or Not To Share? | Peer to Peer Review

In my last column, I suggested that librarians’ attachment to the traditional practice of interlibrary loan (ILL) and our desire to extend it into the ebook realm are an example of something like Stockholm Syndrome—an unhealthy and irrational affection for an onerous practice by which we were held captive during the print era. In the past, ILL was necessary because of the limitations of the print format; in the online era, we should be thinking entirely differently about what it means to “share” resources between libraries, and thinking carefully about whether and how doing so actually makes sense.

In my experience, those who argue for the ongoing necessity of something substantially like traditional ILL in the online realm generally base their arguments on the need to preserve our traditional rights under the first-sale doctrine. But I think this argument constitutes what philosophers call a “category mistake.” First-sale is about what may be done with physical copies, and its logic is based on the fact that once a copyright holder has made a single sale, there’s no injury to the rights holder if that copy is transferred, as long as the transfer doesn’t result in the creation of new copies (beyond fair use). Thus, if I buy a copy of a book and subsequently give that book as a gift to someone else, there has been a single sale and the single copy of the book is always owned by a single person. Physical format is a given of the first-sale doctrine.

In the digital realm, what is typically referred to as “sharing” is actually copying—sometimes legal and sometimes not. Understandably, the ease and ubiquity of uncontrolled copying in a networked digital environment makes copyright holders uneasy. And the fuzzy line between copying and sharing in that environment also makes the question of what it means for libraries to “share” resources much more complicated than it might seem at first blush.

When it comes to sharing print books, the good news is that our traditional ILL practices remain as legally defensible as they’ve ever been; the bad news is that they’re also just as wasteful, expensive, and slow as they’ve ever been. In the absence of effective teleportation technology, however, we’re probably stuck with traditional ILL when it comes to printed books.

For ebooks, however, our options are wide open and we should take advantage of that fact. Instead of insisting on a model that pretends there’s no meaningful difference between print books and ebooks, I suggest two different models, which are not mutually exclusive:

First-Sale Emulation Model

Under this model, the lending library foregoes access temporarily, assigning temporary access to the borrowing library. In this scenario, the publisher would have no legitimate grounds for objection, as what has been paid for is one institution’s right of access to a virtual copy, and only one institution ever has access to a copy. Nor does the tradition-minded librarian have any reason to object, since this is no more or less than what we’ve always done with printed books. The borrowing patron should be happy, since this model can result in immediate access rather than a long wait for the book to be shipped. Inconvenience is felt by patrons of the lending library, however, because (just as they did in the print environment) they temporarily lose access to one of their home library’s holdings unless the library pays for multiple copies. For very popular titles, this is a potentially serious downside. Another is the complexity (for both libraries and booksellers) of managing constantly-shifting access restrictions. Luckily, these downsides are also completely unnecessary, since another and much better model has emerged in recent years.

Microsale Model

I’ll use the term “microsale” to refer to a constellation of options currently offered by various ebook vendors. These include what Michael Levine-Clarke has called a “short-term lease” and what the ebook vendor EBL calls “short-term circulation.” Under this model, when a patron wishes to borrow an ebook not held by the library, the library is charged a smallish fee and the requesting patron gets time-limited access to the book. (How long the access, and how great the fee, are details that vary from seller to seller and may be worked out through negotiation.) Under this model, there’s no “sharing.” There is, instead, payment for local and temporary access. This is a twist on the old “buy instead of borrow” approach to ILL, under which libraries would use ILL requests as a trigger to traditional collection development.

I anticipate objections to this approach. For one thing, the microsale model actually undermines the concept of the library as a permanent collection, turning it instead into a sort of conduit through which access flows in real time, and which retains content permanently only on a selective basis. Microsales are not really sales, but rentals. Is this a problem? Only, I would argue, if you see the collection as an end in itself rather than as the means to an end.

How about the erosion of our traditional right to share resources? Again, this is a means-versus-ends question, and it goes back to the point I made at the beginning of this piece. We don’t (or shouldn’t) share because “sharing is what we do as libraries,” still less because sharing is somehow a “core value” of librarianship. Sharing is a means, not an end. We share in order to provide access, and to the degree that “sharing” actually means “copying,” it is legally and ethically complicated. To pretend that it involves only a very simple matter of letting libraries be libraries and therefore “share” is, I believe, simpleminded at best and disngenuous at worst. We live in a radically different information world from the one that gave rise to ILL.  Instead of resisting that reality, we should embrace it, rejoicing in the ways it allows us to serve our patrons better.

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Rick Anderson About Rick Anderson

Rick Anderson (rick.anderson@utah.edu) is Associate Dean for Scholarly Resources and Collections at the University of Utah’s Marriott Library. He serves on numerous editorial and advisory boards and is a regular contributor to the Scholarly Kitchen blog. His book, Buying and Contracting for Resources and Services: A How-to-Do-It Manual for Librarians, was published in 2004 by Neal-Schuman.

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Comments

  1. In addition, the first-sale emulation model is still technically copying. For one server to get something from another server, a copy must be made. Regardless of who can allow access and who can’t, copying is occurring. A library copies the content when it is purchased. The borrowing library copies it from the lending library. Even if the borrowing library is just accessing the file hosted on the lending library’s server, the end user is still technically copying it as it is viewed on the end device.
    It is troubling that in dialogue with content providers, copying is always treated as injurious rather than a plain necessity of digital content. Copying is how digital content works! My web browser downloaded a copy of this website and now I am viewing it on my screen. I download a copy of a video I watch legally on Hulu (though it is automatically deleted.

    • Rick Anderson says:

      Sure. That’s why it’s only “first-sale emulation.” Some kind of copying happens, but the real-world effect of what happens (for both the user and the rightsholder) is as if only one copy ever exists.

      You might want to be careful about generalizing too broadly about how content providers see copying. Your statement is no more true of all content providers than it would be true to say that all librarians see copyright as the enemy of access (though there are indeed some who see it that way). I’ve worked with several publishers who are both willing and eager to explore new ways of thinking about how copying, distribution, and payment can work in a networked environment, and who are putting their money where their mouths are.

  2. The collection is a means to several ends, one of which is obtaining control of what you are able to lend. A copy that the library owns will continue to exist as long as the library chooses to continue owning it. A copy that the library rents from the publisher exists until the publisher decides the work isn’t earning enough and disappears it.

    • Rick Anderson says:

      Mark, your reasoning seems circular to me. To say that collecting is a means of maintaining control of what you are able to lend is to say that the purpose of collecting is to have a collection. ILL isn’t about collecting; it’s about providing access in real time in response to a failure in the collection. The question of why and how we build collections and provide permanent (or at least relatively permanent) access is an intriguing one, though–perhaps a good topic for a future column.