The cheering echoes still throughout librarianship. Recent court decisions—such as the HathiTrust’s win over the Authors Guild—strengthen the use of the concept of “fair use” to exempt from copyright the reproduction of material, liberate the free digitization of so-called “orphan works,” and allow free public access to the results. Yet even those cheering the loudest caution that there are still no definitive rules to apply to these victories. The victories are yet evidence of the value of well-organized efforts to prevent copyright from locking up our intellectual and cultural resources. The leaders of the Library Copyright Alliance (LCA), comprised of the Association of Research Libraries, the American Library Association (ALA), and the Association of College and Research Libraries (an ALA division), deserve the cheers and the continuing support of librarians.
A huge, much more important question lurks over the entire struggle. We have to participate in the ongoing effort to decide whether the digital brave new world into which we are moving will offer people more freedom of access to information and entertainment, or confine our intellectual resources in a maze of impenetrable legal walls that could ultimately end much of the intellectual freedom we have enjoyed through the print era. Is technology liberating information, or will it allow special interests to use the law to deny access to it? Currently there are many attempts to create models for a digital information future. In most of them, the concept of a book collection is replaced by a universal online catalog of digitized works that everyone can simply tap for downloading onto their own devices. The problem is that many will not be able to afford the fees for such access. Proposed models that require us to pay for each use of our intellectual resources are far more plentiful than those that let us pay once for all of our uses of them.
In the print era, individual purchase and ownership of a work allowed the owner and borrowers to use that work in any way they wished. It could be sold, given away, lent, or locked away by the “owner.”
The inexorable march to digitization has already challenged those rights of ownership and in some proposed models it eliminates them altogether. Right now it looks like the intermediaries—vendors, publishers, wholesalers, et al.—have taken control through contracts and laws, giving them temporary power to dictate pay-per-view rules for the dissemination of digital material. I say “temporary,” because it is now clear that courts, legislatures, organizations of stakeholders and interested parties, and creators can bring pressures to bear to change the operating model.
It would be foolish to predict the result of these struggles so early in the game. It took centuries for us to develop the fragile system of copyright and custom that gave us the existing scheme for information and entertainment in physical formats. When all that information and entertainment float in a digital cloud of bits and bytes, it will be more difficult to create a set of rules for their use.
Many take comfort in the thought that the familiar physical formats, especially printed books, will continue to be around for a long time. They say the “book” will never disappear. The arrival now of technological change with accelerating speed means it is time to safeguard our values in the new paradigm.
We can predict that while it may be a long struggle, change will come faster than we expect. For those of us who believe in free, open access to the information and entertainment that make up our culture, we must work with strong groups like LCA to guarantee that the coming upheaval liberates access to our intellectual assets. Along with allies and constant vigilance, we can fight off any effort to control our intellectual legacy by those who seek to use it for monetary gain. It is our duty to ensure that as technology marches on, we use it to allow our cultural resources to be accessed more freely, not locked up in an economic prison.
John N. Berry III