Values Conflict in the Digital Environment: Librarians Versu
Posted: Sat Dec 23, 2017 5:22 am
Part 1 of 4
Values Conflict in the Digital Environment: Librarians Versus Copyright Holders
by Laura N. Gasaway *
NOTICE: THIS WORK MAY BE PROTECTED BY COPYRIGHT
INTRODUCTION
Librarians share many values with creators and publishers of copyrighted works, but their interests and values sometimes conflict. Additionally, the core values of each group sometimes conflict with the goals of copyright law. While these conflicts have existed for centuries, they are escalating in the rapidly expanding digital environment, and the debate between the two groups is becoming increasingly acrimonious. Members of both groups often misunderstand copyright law and engage in overstatement, sometimes fairly gross overstatement.
Librarians and content providers share a great many core values, and work symbiotically to promote common goals. Without publishers and producers, librarians would have little to offer their users because there would be no works of literature, no reference works, no videotapes and no databases. Without librarians, publishers would lack a valuable resource to make their works available, to publicize their works, to teach patrons how to use their works, and to preserve their works for posterity. Librarians, publishers, and producers share many core values about works of literature, the value of these works, and the importance of preserving them for future generations. Although librarians and authors often disagree on issues involving digital media, both parties realize the importance and value of information to people in the digital age, and both believe that information should be trustworthy and incorruptible. Both groups believe that publishers play a valuable role in making available to the public works containing information. The editorial work, the management of the peer reviewing process, and the distribution role played by publishers is crucial to the production of quality works, and both groups believe that publishers should be fairly compensated for these contributions.
Despite sharing many common goals and values, significant disagreement exists between librarians and content producers and publishers. Librarians tend to view information as a necessary public good, such as food, shelter, and warmth; that should be made available at a reasonable cost. Commercial producers and publishers of copyrighted works, however, tend to view their works as private property that can be commercialized. Thus, the economic goals of producers and publishers often conflict with the social goals of librarians. From the perspective of the librarian community, publishers often appear to maximize profits at the expense of research and scholarship. Librarians, however, are less concerned about profit than they are about what they view as the higher-minded goal of providing high quality information to people. Conflicting values make it difficult for these groups to compromise and negotiate with each other, and each feels that its existence is somehow threatened by the other. The core value conflicts also negatively impact the debate about what role copyright law should play in resolving competing interests between publishers and librarians. This fundamental distinction between the way creators and publishers, on one hand, and librarians, on the other hand, view and value information has existed as long as public libraries have, but it has not prevented the two groups from working together in the past to create and distribute information. The evolution of the digital world, however, highlights these opposing values and appears to exacerbate the differences.
Popular sentiment sometimes supports the values of content providers and sometimes supports the librarians' values. For example, American society admires and supports capitalistic notions of developing products and then selling them to maximize profits for the entity or individuals who paid for the development and production of that product. Naturally, this position supports the views of the publishers and producers of copyrighted works. On the other hand, society also believes that public access to information and the existence of free public libraries is important -- or even essential -- in a democratic society. This supports the librarians' values.
The Constitution acknowledges the competing interests between these groups in the Copyright Clause: "The Congress shall have Power ... To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”[1] By "Science" the Framers meant all disciplines of learning, and thus promoting learning is a goal of copyright. Content providers view the Constitution's Copyright Clause as ensuring protection for their works and focus on the "exclusive Right," while librarians focus on the social good of promoting learning among the public and focus on the mandate to "promote the Progress of Science." The delicate balance between competing interests called for by the Constitution, however, may now be at risk, according to at least one commentator:
As a librarian, I certainly know much more about librarians' values than I do about publishers and producers' values, but I am also a teacher of intellectual property law, and I recognize that both groups have important goals and missions. In discussing the values of the two groups, I do not mean at all to imply that right and wrong values exist. When one is discussing values, there is no right or wrong, but only differences. Additionally, I run the risk of over-generalizing when ascribing values to each group. Clearly, not all librarians have adopted the values I assign to them.
Although both groups clearly have values in addition to the ones identified here, this article is limited to a discussion of the primary values that relate to copyright. The core values of authors and publishers that relate to copyright include: (1) compensation for the creation and production of their works; (2) ability to control their works; (3) authentication and recognition of their works; (4) broad marketing of their works; (5) promoting strong intellectual property rights; and (6) viewing, the fair use doctrine as an affirmative defense to copyright infringement. [3] Librarians' core values regarding copyright law include: (1) recognition of public libraries as educational institutions; (2) providing information to the people; (3) providing information on all sides of an issue; (4) promotion of the rights of users of copyrighted works; (5) ability to identify and locate information, (6) recognition of the importance of the public domain as a repository of information; and (7) viewing the fair use doctrine as a right of a person to use a copyrighted work. [4] Societal values relating to libraries, publishers and producers and copyright include: (1) the importance of an educated population; (2) support for entrepreneurship; (3) access to public libraries; (4) the importance of the public domain; and (5) public access to information.
Value differences clearly have affected discussions and negotiations regarding copyright. Since the early 1990s, [5] disagreements between publishers and librarians have seemed increasingly acrimonious to me, and I began to wonder why. What has changed to increase the decibel level in the debate? There may be no easy answer, but, at least in part, conflicting values contribute to the disagreement and create a siege mentality on both sides. Likewise, there may be no simple solution to the disagreements that will soothe the debate between librarians and copyright holders. By recognizing the depth and strength of these values, perhaps the parties can avoid causing further schisms and entrenchment in positions that prevent agreements to solve problems conjointly.
I. CONTRASTING CORE VALUES
A. PUBLISHERS AND PRODUCERS OF COPYRIGHTED WORKS
Publishers and producers are not all alike. Similarities exist among the various types of copyright holders, but their interests are not all the same. Music copyright holders differ from traditional print publishers; videogame owners differ from photographers. Moreover, even within a class of copyright holders, differences may exist. For example, traditional publishers may operate for-profit or as a nonprofit organization, such as a society or professional association. A common goal of all publishers and producers is making their works available to the public, and doing so now requires using both traditional media and recently created digital media to distribute their works. [6] It is evident, however, that something has changed due to the growing presence of digital distribution technology, which makes copying much easier and cheaper, so that core values of the copyright holder community are threatened regardless of whether the copyright holders operate as commercial or nonprofit entities. This threat implicates another stated goal of publishers -- to encourage and promote strong intellectual property rights worldwide.[7]
The right to control reproduction is said to be the hallmark of copyright, and copyright entrepreneurs expect to be compensated when their works are reproduced. [8] Reproduction is more common and easier to achieve in the digital world than in the analog world, especially if one considers transient copies made by computers. When libraries reproduce copies and give them away, publishers believe that they should be compensated for the copies. [9] This expectation is not new in the digital environment. Authors have been aware for many years that libraries make reproductions, but have generally tolerated this practice without objection, viewing it as a de minimis infringement. Today in the digital age, however, instead of talking about infringing reproductions, copyright holders use terms like "theft" and "piracy" to describe the practice; [10] such words leave little room for debate or for considerations of exemptions such as fair use. [11] From the perspective of content providers, what has changed is not only the quantity of reproductions that may be made through electronic means, but the quality of the reproductions. The ability to produce copies from a digital work with no degradation of quality is a significant matter to publishers and producers, because it permits unlimited reproduction of information, whereas previously, the extent of reproductions was naturally limited by the means of reproduction. [12] Perfect copies were not possible until the advent of computer technology, so this is a new concern.
Publishers and producers value the ability to control their works in the marketplace. [13] Fear of loss of control now appears to be much stronger on the part of copyright holders than it has been previously. Is the increased fear justified? Perhaps it is, since loss of control easily can result in total destruction of the value of the work. The volatility of the legal environment also probably contributes to this fear, since publishers and producers cannot depend on the courts to restore that control. Once control is lost, it is lost permanently. Technology presents copyright owners with an opportunity to exert greater control over their works than ever before, since not only access to the works, but also the use of works can be controlled. [14] Concomitantly, however, detecting infringement may be more difficult. One response to the latter problem might be to prevent all copying rather than finding ways to permit lawful reproduction.
Publishers value works that they can authenticate, thus ensuring that the content they originally provided remains unaltered. [15] The fluidity of the digital environment raises concerns on the part of publishers and producers that persons will gain access to their works and then alter the works in a way that reflects negatively on the publisher. Content providers also value the ability to market and protect their works in the digital world. The digital environment permits the sale of access to increasingly smaller bits of information, which makes new marketing strategies possible. Publishers also value the ability to market their works broadly and to explore new markets. [16] Eventually, a pay-per-view distribution system in which each consumer can purchase exactly the information he or she desires may be possible in the digital world, as publishers and producers point out. Such a pay-per-view distribution system would allegedly be incredibly inexpensive for users who can purchase small bits of information as opposed to having to pay for access to the entire work. The envisioned low cost pay-per-view distribution system, however, has clearly not yet been developed, and whether it ever will be is questionable. Another change relating to marketing in the digital world licensing is increasingly recognized as a way to protect intellectual property rights, and licenses are becoming more encompassing and broader. [17] Publishers are beginning to value their control over rights and permissions as an income stream as they never have before. [18] Finally, a core copyright value for publishers and producers is the notion that fair use is only a defense to copyright infringement, and it is not a right of users of copyrighted works.[19]
Based on some of these values, radical public statements made by publishers are understandable, but they raise considerable concern on the part of librarians. Examples of such statements are that in the digital world pay-per-view will be preferable to sales of copies as a way to recoup the cost of creating a copyrighted work, and that interlibrary loans should be eliminated in the digital environment. [20]
B. LIBRARIAN VALUES
Librarians also have deeply held core values, some of which have never been questioned. Statements made by publishers and producers sometimes strike at the heart of these values. Many of these values come from what may be called the public library ethos; librarians as a group tend to share these values whether they work in the nonprofit sector or in the for-profit environment. [21] The education and training of librarians inculcates some of these values, which have been exhibited in debates and considerations about copyright.
What are some of the core values held by librarians? [22] One core value is that public libraries are educational institutions. This core value, held for at least 125 years, potentially conflicts with the Copyright Act, in which public libraries are considered nonprofit libraries, but not educational institutions. To librarians, however, libraries, archives, and museums serve such an important educational function that even when asked today, librarians often say that public libraries are educational institutions. Throughout the Copyright Act, however, phrases like "libraries and nonprofit educational institutions" are used, making it clear that the two are distinguishable. Thus, the exemptions available only to schools and other educational institutions are not available to libraries generally. True, libraries in nonprofit educational institutions straddle the divide, but other types of libraries do not benefit from the exemptions for educational institutions.[23]
The most important core value for librarians is "information to the people." Public libraries are a shared intellectual resource maintained at public expense to provide resources that will be shared. Libraries purchase works and make them available at no charge to any user of that library, which is permitted by the Copyright Act under the first sale doctrine. [24] This may conflict with publishers' goals, but section 108 of the 1976 Copyright Act, [25] called the library exemption, makes clear that the exclusive rights of copyright holders are limited to permit many standard library activities to occur without the need to seek permission from the copyright holder.
Public libraries as institutions question authority by providing information on various sides of an issue. [26] Often it would be easier and less stressful on library staff if the library provided information that supported only the dominant beliefs in a community. From earliest times, however, public libraries have steadfastly provided information on multiple sides of a matter to permit library patrons to educate themselves and make up their own minds about issues. Sometimes individual publishers have suggested that libraries purchase only their materials rather than both theirs and those of a competitor. Even publishers of legal materials have been guilty of this in private conversations with law librarians.
As part of the value of information to the people, libraries promote the rights of users under copyright. Librarians also support the right to read, the right of access to ideas, etc., and they view the role of librarians as advocates for users who often too, are silent about their needs and wants, or who may not even know what they need. Libraries are valuable to society because they provide access to information to the economically disadvantaged and to other "have nots." They provide an equalizing influence that can serve to reduce the differences between rich and poor when it comes to information. Librarians believe that users have the right to browse in the digital environment just as they do in the analog world. Browsing, is a way of selecting what information is needed, but this clearly conflicts with the content providers notion of paying for access. [27]
The Copyright Act itself recognizes some of these values in the section 108 exemption. For example, libraries may lawfully reproduce copies of portions of works, such as an article from a journal issue to satisfy a request from a user. [28] If the library to which the request is made does not hold the requested item, under the exemption, that library may satisfy the request by obtaining a reproduction of the article through interlibrary loan activities. [29] Librarians also believe that section 108 and the fair use doctrine permit them to provide library service to distant learners for whom the library is their primary library. Finally, in order to facilitate teaching, and learning, librarians see the library as an extension of the classroom with the creation and maintenance of reserve collections, including electronic reserves under the section 107 fair use provision.
Although librarians do not necessarily believe that information should be free, they do believe that once a library has subscribed to, or licensed for, access to a work, users of the library should have unfettered access to it. Some librarians would probably further argue that the location of the user is irrelevant. For example, if the user is an enrolled student of the university, whether she is physically located on campus or not should be immaterial; the critical issue is whether she is an enrolled student. Restrictions in license agreements that limit users to physical presence on the campus or restrict the ability of a library to use the work for interlibrary loan conflict with this value.
Another librarian core value is that users of libraries should be able to locate information -- i.e., identify that it exists and where. The role of librarians is to assist and teach users to locate information. This depends on standard indexing, and abstracting services as well as Internet search engines. Traditionally, indexing and abstracting services have been provided by third parties and not by the entities that held copyright in the work. For example, the H.W. Wilson Company began its indexing in 1901 with the first Readers Guide to Periodical Literature that included only 20 periodicals that were recognized as “acceptable” by the literary and academic communities. [30] The theory of indexing changed over the years with the addition of indexes such as Index Medicus that evolved into the online service, Medline, but nonetheless, third parties conducted indexing. These organizations may have been for-profit (H.W. Wilson Company), nonprofit (Public Affairs Information Service), or even a Government agency, such as the National Library of Medicine, which produces Medline. Even if the indexer was a commercial entity, it was still a third party that did not hold the copyright in the content.
Today, publishers are adopting new digital object identifiers (DOIs) to attach to digital information and to link it through indexing. The DOI index would be linked to the full-text of the work. In theory, this sounds great, since the DOI will stay with the object regardless of whether the publisher sells the digital work, etc., but some concerns about DOIs exist. With DOIs content providers would not only control the indexing, but also access to the indexing and through the index access to the digital object itself. All of this would be available to users only through licensing arrangements. Publishers state that this would be a great boon to researchers, [31] but this is true only if researchers have access to that publisher's digital materials or to a consortium of publishers' systems that are licensed. If a scholar wants to cite an article using a DOI, it would become an inaccessible reference to anyone who does not have access to one of the publishers' systems in the consortium. No longer would neutral third parties provide the indexing and abstracting services one can use to determine the existence of a work even if the library does not subscribe to the journal or proceeding, in which the work appears. [32]
Perhaps the most important manifestation of the core value of information to the people is the importance of the public domain. Librarians believe that having unrestricted access to non-copyrighted works is crucial for research and scholarship. Copyright law should not restrict public domain works in any way, and users of libraries should be encouraged to make wide and frequent use of public domain works. Further, U.S. government-produced works should be free of copyright and widely available.
Even though librarians likely hold other core values related to copyright, the last one critical to mention is fair use. To librarians, fair use is a user's right and not just a defense to copyright infringement. Further, librarians believe that not only individuals but also libraries have fair use rights, based on the library exemption in section 108(f)(4), which states that “nothing, shall affect the right of fair use.” The word used in the statute is "right" and not "privilege;" thus, it is easy to see why librarians maintain that fair use is a right, not just a defense to infringement. Whether fair use is a defense to copyright infringement or is a right has long been debated, with librarians and publishers and producers weighing in on different sides. Recently, the National Research Council recognized this divide in a report published in early 2000, The Digital Dilemma, Intellectual Property in the Information Age. It highlights this disagreement in relation to private copying, but does not resolve the dispute. [33]
In recent years a number of professional library organizations have developed policy statements that reflect and restate some of these core values. The American Library Association is currently drafting a statement of core values. [34] In the latest draft of the statement, four of the eight values identified relate to copyright. The first of these concerns is the connection of people to ideas. The other core values flow from that. "We guide the seeker in defining and refining the search; we foster intellectual inquiry; we nurture communication in all forms and formats.” [35] A second core value is the unfettered access to recorded knowledge, information and creative works. "We recognize access to ideas across time and across cultures is fundamental to society and to civilization.” [36] Learning in all its contexts is the third value. "We aid people to become independent lifelong learners by selecting and offering materials that support the differing needs of all learners, and that entertain and delight the human spirit.” [37] The fourth value that relates to copyright concerns preservation of the human record. "The cultural memory of humankind and its many families, its stories, it expertise, its history, and its evolved wisdom must be preserved so it may illuminate the present and make the future possible.” [38]
The Association of Research Libraries (ARL) has developed several documents that state core librarian values without so identifying them. Fair Use in the Electronic Age: Serving the Public Interest was adopted in the mid-1990s. [39] It details what the public should have a right to expect to do without incurring copyright liability:
• to read, listen to or view publicly marketed copyright material privately, on site or remotely;
• to browse through publicly marketed copyrighted material;
• to experiment with variations of copyrighted materials for fair use purposes, while preserving the integrity of the original;
• to make or have made for them a first Generation copy for personal use of an article or other small part of a publicly marketed copyrighted work or a work in a library's collection for such purpose as study, scholarship or research; and
• to make transitory copies if ephemeral or incidental to a lawful use and if retained only temporarily. [40]
Additionally, the ARL document posits that nonprofit libraries should be able to undertake certain activities, such as using electronic means to preserve copyrighted materials and to provide copies through interlibrary loan, on the part of their clientele without infringing, copyright. Further, libraries should not be liable for the actions of their users after they post the appropriate notices on unsupervised reproduction equipment. [41]
In 1994 the ARL adopted Intellectual Property: An Association of Research Libraries Statement of Principles, a statement in response to the White Paper[42] that affirms the rights and responsibilities of the research library community in copyright. The most important of these rights is that copyright exists for the public good, and concomitantly, fair use must be preserved in the developing information infrastructure. It also stated that licensing agreements should not be allowed to abrogate either fair use or the library exemptions provided in the Copyright Act. It recognized that librarians and educators have an obligation to educate the users of information from their collections about their rights and responsibilities under intellectual property laws. The statement opines that federal government works should remain free of copyright restrictions. Finally, it states that the information infrastructure must be formulated to permit compensation to authors for the success of their creative works and to provide fair return on investment for copyright holders.[43]
In 1999 the ARL restated some of these values in a document called its Keystone Principles, [44] which has some impact on core values. The most important of these is a slight change over earlier statements: now access to information is identified as a public good. [45] This recognizes that academic authors and institutions or public institutions often create information, and the public interest is served by having this information available. The ARL believes that commercial enterprises have disrupted the public availability of such information through pricing policies, licensing restrictions, and the like. [46]
C. SOCIETAL VALUES CONCERNING LIBRARIES AND COPYRIGHT
Probably the core value that members of the public hold most dear in this area is the importance of an educated populace. The U.S. Constitution is a charter for self-government, and only an educated populace can self-govern well. [47] Libraries play a crucial role in creating an educated citizenry through literacy and reading programs, and simply by making information widely available to the general public. Thus, it follows that the public value of education may be furthered by the availability of free public libraries. Another value the public holds is the importance of the public domain. While copyrighted works play a key role in “promoting the progress of science and the useful arts," [48] public domain works provide much of the intellectual commons that members of society share. Evidence of a contrary view might be found in the recent reduction of the public domain by the retroactive extension of the already long term of copyright by an additional 20 years. [49] Additionally, it is clear that American society recognizes the importance of public libraries and public access to information. There is considerable public support for libraries. In mid-1998, a Gallup poll showed that 67% of Americans visited a public library within the last year, 54% checked out a book, and 21% checked out other materials, like a CD or a video. [50] "In the continuing struggle to establish and maintain democratic values, free public libraries are essential for providing information and knowledge.”[51] There is also a civic aim: the free public library offers citizens a way to become informed and educated citizens.[52]
II. HOW DID LIBRARIANS' CORE VALUES DEVELOP?
A. HISTORY OF PUBLIC LIBRARIES
As the first major urban public library in the United States, the Boston Public Library was opened to the citizens of Boston in 1854 in rented space on the bottom floor of a school on Boylston Street. The idea for a public library actually had begun 30 years earlier with a proposal to unite some of the city's privately owned libraries. In 1839 Alexandre Vattemare proposed that the great cities of the world exchange cultural items such as books, works of art, etc. He also suggested that the cities build libraries and museums so that the public could then view the collected cultural artifacts. [53] Vattemare visited Boston in 1841 and proposed a merger of 15 private libraries. Not surprisingly, most of these libraries were less than enthusiastic, but in 1847 he persuaded Boston officials to build a public library. [54] The city council succeeded in negotiating a $50,000 loan from a London bank with which it created a book fund. Three years after the 1854 opening, the Boston Public Library moved into its own building with space to house 240,000 volumes. [55] By 1875 the public library movement was well underway; 188 libraries had been established across the country, and more were planned. Public libraries were considered to be educational institutions [56]. The belief behind public support for public libraries is expressed in an 18th century Rationalist view of American Democracy, "that every person should have an equal chance to fulfill his abilities; that every man can and will do so if given the chance; that the individual shall be free to develop his inclinations and capacities; and that society will progress as the enlightenment of its citizens advances.” [57] Librarians viewed themselves as missionaries of literature, and began to assist schools. The general view was that public libraries were poised to help the country solve various social problems. [58] In the last decade of the 19th century librarians wanted to elevate society and raise the levels of knowledge, goodness and wisdom. [59] Libraries then and now are considered to be a public good, [60] and [p]ublic libraries, like public schools, came to be accepted as public responsibilities, civic goods benefiting the entire society and thus worthy of pubic support. [61]
As the library historian Patrick Williams described librarians at the close of the 19th century and into the 20th century, librarians were inspired: "[t]hey idealized the library as messianic, as an agency of national salvation. They saw themselves as missionaries enlivened by the library spirit.” [62] They continued to insist that public libraries were educational institutions. The Library Spirit was compared to the spirit that built the great European cathedrals. The spirit was one of service, and brought books and learning to towns and hamlets, as well as cities. Libraries were altruistic in nature, and everything seemed to be working. By 1896 there were 971 public libraries with 1000 volumes or more; by 1903 there were 2,283. [63] Between 1906 and 1915 Andrew Carnegie donated money from his personal fortune to build over 639 library buildings in cooperation with local governments. Governments also became more active in library development and building. Books were distributed in traveling libraries to rural areas. Public libraries in cities and towns placed books in public schools, firehouses and police stations. [64]
Public libraries' missionary service also included immigrants. [65] Libraries viewed this Americanization effort as a service to the immigrant community; it was their patriotic duty and a role that librarians willingly accepted, apparently with little question. [66] It seems to have been a goal of public libraries to work with immigrants. Libraries apparently viewed themselves as civilizing influences, and services to immigrants were viewed as a social obligation. [67] Public libraries provided books to immigrants, sometimes in the immigrant's own language, lectures on a variety of topics such as health, food, American law, etc. They offered classes on English, and immigrants were taught manners and how to behave. [68] What was taught was often described as the “American way of life.” [69]
By 1915 the missionary era was coining to an end [70] and was being replaced by the new rage, adult reading courses. From 1920-48 public libraries were involved in the adult education movement. Adult education was not a new idea, but it was newly emphasized by government at this time. There had been earlier lecture series that were aimed at educating adults, like the Lyceum and Chautauqua series in addition to local lectures held at public libraries. [71] After the two World Wars, however, much had changed in society. Although public libraries had made significant contributions to individual lives, they had not been greatly successful in educating the masses. [72] In the 1950s the American Libraries Association (ALA) and others thought that the Library Services Act [73] would contribute significantly to creating equal education opportunity for rural America. [74]
After World War II, the Carnegie Corporation was consulted to see if it could determine why support for public libraries was so weak if they were indeed so necessary to a democracy. After discussions with library leaders, the ALA sent a proposal to the Brookings Institute in 1946 for a study, now referred to as the Public Library Inquiry. Sociologists and others assisted librarians in this important study. [75] The study was to be wide ranging, and to examine how well the public library served its various user populations, along with how effective it was in cultivating loyalty to the basic conceptions and ideals of the democratic way of life. [76] The Public Library Inquiry produced a number of reports that probably were infused with bias, and it assumed certain contentious values were widely shared so that its recommendations could be accepted. [77] One of the central findings came from the belief that the capability of learning was universal. This notion was dubbed as the "Library Faith," which is expressed by the syllogism that printed works have such value that reading itself is a good; reading in order to learn is moral and useful behavior, so libraries contribute value to society. The public library is important to the democratic process because of its relationship to books and reading. It provides free access to all library users of works that have value because they enhance a user's pursuit of knowledge and happiness. Further it provides sources of knowledge for the informed citizenry who are responsible for the very fate of democracy. One final goal and value of the public library is that it both preserves and organizes recorded knowledge worldwide and thus plays a critical role in cultural and social continuity. [78] The Inquiry maintained that this faith was historical and was central to the ideology of public librarianship. The ideology was the lens through which librarians viewed the world and made decisions. Further, the ideology adopted a justification that saw the public library as occupying a unique place as a state institution, which contributed in very specific ways to democratic culture. [79]
The Library Faith has its roots in the 19th century. Charles Coffin Jewett, in his 1849 report to the Regents of the Smithsonian Institution, identified two social benefits provided by public libraries: (1) a direct benefit to the ordinary American who can use the collections and services to improve practical skills, gain cultural knowledge, enhance moral strength and increase productivity, and (2) an indirect benefit to the nation in the form of greater economic productivity and a better quality of life. [80] Jewett's view is consistent with the Library Faith and describes the public library as an intellectual commons, contributed to by everyone and available to all. A part of the value of the public library comes from the very fact that it is a shared resource. [81]
The Library Faith was resurrected in the Public Library Inquiry, but this time it was armed with a strategy for action. [82] The central purpose of the Inquiry was to establish a link between democracy and free public libraries. The Public Library Inquiry offered an empirical examination of the public library in terms of what the institution had achieved and what could have been achieved when compared to its own objectives. Then, it attempted to place the public library in the broader context of American culture and politics. It was also an attempt to stimulate librarians to reexamine their professional values. [83]
The Public Library Inquiry resulted in seven books and five special reports. It was really a survey instrument, a study of public libraries that would tell librarians what to do to make their public libraries the instrument of popular education that they wanted them to be. It suggested that libraries should reinvent themselves to ensure users the "widest possible range of reliable information." [84]
Beginning with the Library Services Act in the 1950s, changes were inevitable; bookmobiles hit the road in the 1960s with service especially to rural areas, and adult education efforts continued in to the 1960s. [85] From 1965-80, activists began to push services for persons considered disadvantaged who traditionally did not much use the library. Renewed outreach beginning in 1967 indicated a significant difference in the types of works that public libraries needed to provide: movies, tape recorders, viewmasters, etc. But by 1970 outreach programs began to wane. [86]
A Strategy for Public Library Change was presented at the Public Library Association meeting in January 1972. [87] The Strategy proposed a new role for public libraries, premised on the concept that information in the form of data, facts, and ideas is essential to the flourishing of the country's citizens, which redefined the role of public libraries as information providers. [88] By the late 1970s a new emphasis on providing information to everyone had developed, which stressed that "[all] information must be available to all people in all formats purveyed through all communications channels and delivered to all levels of comprehension.” [89] This very broad role envisioned for public libraries, however, was one few would be able to meet. Nevertheless, the role of information provider is an appropriate one for libraries since “access to the accumulated information, knowledge and wisdom of humankind is essential. ... It is that function which the library performs best ... [90]
B. EDUCATION AND TRAINING OF LIBRARIANS
The education and training of librarians is based on ideals such as the Library Spirit and later the Library Faith. The first librarian education program was founded at Columbia College in January 1887 under the direction of Melvil Dewey. Classes were held across the street from the main campus, because not only did the first class admit women, but the class was also comprised of 17 women and three men. Faculty members were predominantly members of the library staff of the libraries at Columbia with some other librarians brought in as guest lecturers. Faculty members were supposed to inculcate the library spirit -- an attitude about library use and access to those collections. It was this library faith that distinguished Dewey and his generation of librarians from earlier generations whose primary goals were security and preservation of collections. [91]
The Library Faith permeated early library education and continues to this day. Librarians are trained with the public library ethos, and it carries over into their work lives. Even librarians in the for-profit sector often still operate with this library faith at work. They have often had difficulty in recognizing that the for-profit environment may significantly change the relationship between copyrighted works and the user. Librarians have tended to view all users as having rights to access and use works just as members of the public have this right. The copyright law may, however, differentiate between those users of public libraries and users of a corporate library, if the Texaco [92] case is any example.
C. LIBRARIES IN THE PRESENT DAY
Libraries have developed into well-defined social institutions that hold a collection of "knowledge representing objects." Libraries play several roles: (1) they are consumers in the economic system, (2) they participate in the political system and (3) they serve as locations of social exchange in the everyday lives of people in the community. [93]
Librarians have always been concerned with information content stored in artifact form such as books, journals and film. [94] Librarians are primarily information handlers: they acquire information, organize it, provide access to it, [95] and "serve as intermediaries between the public and the objects of cultural and intellectual authority." [96] Historically, librarians were also concerned with activities relating to the process of publishing and distributing copyrighted works, but to a much lesser degree. Their primary concern was with the collection, storage, and access to static content, rather than with the process of producing and publishing content. Today, however, much information is increasingly dynamic, and it is clear that information consists of both content itself and the process of producing and distributing it. [97]
A central tenet of librarianship is that access to information should be free. [98] Because the accumulated cultural memory is stored in libraries' collections and available for consumption by the library users, libraries facilitate information exchange among individuals and society -- knowledge contained in the library is transferred to users, for example, when they read. The result of this transfer is socialization and education, but it also facilitates solutions to personal problems and the generation of new knowledge. [99] One noted commentator says of information that "[p]ower in the information age, just like power in the bronze age, the iron age, and the ages of Enlightenment and Industrialization, flows primarily to information users and creators, and most power in the information age, just like most power in the bronze age, the iron age, and the ages of Enlightenment and Industrialization, flows to those best situated politically, economically, socially and culturally. [100] The librarians' role as teacher is also expanding as they train people to use the Internet and attempt to screen for quality content in the vast sea of digital information. Furthermore, as technology allows information to become more proprietary in the digital environment, the role of libraries is expanding to ensure freedom of access to information. Another traditional role for libraries is preservation, but preservation of new, elusive and alterable digital knowledge is just now beginning to be addressed. [101]
Librarians also fight the dominant culture by collecting materials the dominant culture does not value or approve of. Libraries bring a vast amount of material together and challenge power by facilitating access to works and by organizing the information regardless of textual format or content. Librarianship is essential in a capitalistic democracy because freedom of access to information is crucial in a democracy even though capitalism may not appreciate this necessity. [102] Librarianship facilitates reading, the chief value of which is to produce educated people who, having imbibed knowledge and values, contribute to the important process of cultural and social change and to the survival of culture by virtue of the kind of people they have become. In the information age, librarianship takes on another important role since individuals are viewed as using documents for their information content to solve particular problems, whether personal or social, in addition to generally improving society by reading. [103]
The commodification of information is a threat to the public's access to information. This is why the slogan that "information wants to be free" [104] is so attractive to librarians. What librarians really want, however, is not that information be absolutely free, but that it be only free to the user after the library has paid for access for its users. Librarians view their role as helping and providing information to those who need it; often they do not recognize that this may conflict with publishers' and producers' values. For example, to publishers, the fact that perfect copies can be reproduced from digital copies is a critical concern in evaluating the harm to the market that copying causes. Such copies are basically viewed as "originals." To librarians, however, the fact that a copy of a textual work is a perfect copy is immaterial. Librarians view what they do as providing the copy to users, and as long as the information is legible, the quality of that copy simply does not matter. [105] This is one reason why publishers and librarians are often talking at each other as opposed to reaching real understandings.
Publishers appear to be under the impression that most librarians believe information should be absolutely free. This is not an accurate portrayal of librarians' views. Since libraries were formed, they have purchased materials in order to make them available to users. Thus, the materials budget for many libraries is quite large, [106] and there is an understanding of the value of these works and the importance of the information they contain. Librarians certainly recognize that copies of books, journals and the like must be purchased, since donations are not likely to provide the balance and breadth that most seek in developing library collections to reflect all sides of an issue. Additionally, for several decades libraries have been signing licenses to make information available online to their users; there has been no thought or debate that non-public domain databases should be provided free. Librarians also recognize the investment made by database developers to collect and organize the information contained in these valuable research sources, and that there must be fair return on this investment.
What librarians staunchly advocate is that individual users should not have to pay for information obtained from their public libraries. Libraries should be able to negotiate licenses to provide access for users in their companies, academic institutions, and public libraries. They fear the threat that information will become pay-per-view and that the library will no longer be able to negotiate appropriate terms and fees to make a database available to its users. So, statements such as "information wants to be free" may simply mean free to the individual, not free to the library. If database proprietors charge too much for the license fee, then the library will not be able to purchase access for its users. This will mean that patrons with economic means will be able to afford individual access to the data while the masses will not. The idea of "information have-nots" provides a direct clash with the core values of librarians. Librarians deeply believe that information should be available to everyone who chooses to come to the library to use it, and that access by individuals should not be determined by their ability to pay. This likely originates with the idea of free public libraries and universal service.
Pointedly, this does not mean that no one should pay for the information. Indeed, the library has long agreed that it should foot the bill for access to information. It just may not be able to do so if license fees become too high or if the pay-per-view model is adopted. Libraries must have a "sum certain" in the budget -- they tried in the early 1970s simply to allow access and pay for "hits" in a database, but many libraries had to abandon this practice or even curtail it in the middle of a fiscal year when the charges reached the amount budgeted to cover use of that database. Negotiating, for a year's access, not on a per search basis, but on a flat rate permits the library greater flexibility even if it then has to narrow access to everything in the database as a way to reduce its costs.
Librarians also fear the possibility that pay-per-view will mean that their role as intermediaries will be threatened. Librarians have long assisted users with their information quests, taught them how to formulate their queries, how to conduct research more efficiently and effectively, and guided them through the complex maze of available resources. The goal is to help each user get exactly the information he needs; not too much information, and not information that is overwhelming to the user. This intermediary role is a type of information filter, not a censor. The training of librarians helps them to determine which sources are age and experience appropriate, how to best search the contents and how to help users so that they can become independent and confident researchers.
III. LIBRARIES AND DIGITAL COPYING
Many of the value differences between copyright holders and librarians are highlighted by the various exemptions to the Copyright Act. Section 108, which provides certain exemptions for libraries vis-à-vis the rights of the owner of the copyright, is particularly relevant to this discussion. In addition to the library exemptions, libraries also have fair use rights. [107]
A. ELIGIBILITY FOR THE LIBRARY EXEMPTION
Section 108(a) details the conditions under which a library or archives is eligible for the library exemption. First, the section permits making only single copies of works except for preservation purposes, when, under certain conditions, the library may make up to three copies. [108] Second, the reproduction and distribution must be made "without direct or indirect commercial advantage." [109] The meaning of this phrase has never been litigated, and the legislative history is not abundantly clear. It is in this requirement that evidence of the values conflict is evident: what does “without direct or indirect commercial advantage mean”? Publishers say that if the library is in a profit-seeking entity, the library cannot meet this criterion. Librarians do not accept this interpretation of the words of the statute. They believe the statutory language means that it is the reproduction itself that may not be used for direct or indirect commercial advantage, i.e., sold for a profit. There is additional support for this position in the legislative history discussing section 108(g)(1); the House Report states that even a library in a for-profit entity may reproduce an article for a user to use in her work as long as it is an isolated and spontaneous request. [110] Therefore, if the library provides document delivery services to its users, and, even if there is a fee charged for the service, it can argue that there is no direct or indirect commercial advantage if that fee represents only cost recovery. Instead, it is revenue neutral and there is neither a commercial advantage nor a disadvantage. However, later amendments to other sections of the Copyright Act all seem to insert the words "nonprofit" before library, which offers some evidence that legislators, at least after the passage of the 1976 Act, considered exemptions necessary for libraries to apply only to the nonprofit sector.
The third requirement is that the library's collection must be open to the public or to non-affiliated researchers doing research in a specialized field. [111] Certainly many libraries in nonprofit educational institutions as well as public libraries meet this criterion. For other libraries, this might be met even if the collection is not open to the public generally but only by appointment for qualified users, such as researchers. Libraries that are not open to any outside users have a more difficult time qualifying under this criterion. Librarians likely would argue that a library not open to outsiders but which lends any of its published materials through interlibrary loan also qualifies for this exemption; publishers likely disagree, but the matter has never been litigated. The fourth and final requirement concerns notice of copyright on copies the library reproduces.
B. NOTICE OF COPYRIGHT
Notice of copyright is a term of art in copyright law: it consists of three elements: (1) the word "copyright," the abbreviation "copr." or a "C" in a circle; (2) the year of first publication; and (3) the name of the copyright holder. [112] Under the 1909 Act, an owner lost her rights if she published a work and failed to include such notice on copies of the work and did not give actual notice of copyright. [113] The more author-friendly 1976 Copyright Act softened the automatic loss provision. An author did not lose his copyright for any accidental omissions of notice if, during the first five years after publication, only a small number of copies had been distributed without notice, and if he later tried to correct this mistake. [114] When the United States joined the Berne Convention in 1988, [115] notice of copyright was dropped as a formality, and today, placing notice on protected works is voluntary. Librarians generally regret this change in the law. Professional librarians and users depended on the notice of copyright to differentiate between works in which the owner claimed rights and those works that were in the public domain. It seems that the burden on the copyright holder was slight in comparison with what copyright notice did for the public in differentiating works in which someone claimed rights from those in the public domain.
Throughout section 108, libraries that reproduce works under the exemptions are required to put a notice of copyright on the copies they make. The policy behind this requirement is to alert users that although the library was able to make a copy of a work for them, the work is not free of copyright restraints. Within the library community, there continues to be debate over the meaning of "a notice of copyright." To the copyright holder community, notice of copyright is a term of art in the law, and most copyright lawyers believe that it meant the library should include the three traditional elements that comprise notice of copyright under section 401(b) mentioned above. Some librarians argued that a library should simply stamp photocopies and other reproductions with the American Library Association recommended statement "Notice: This work may be protected by Copyright." [116] Despite this on-going debate, the matter has never been litigated. Many libraries have religiously used a stamp containing the ALA recommended wording, while others had a stamp made with ©, _____, 19_ or 20_. Then library staff members would fill in the name of the owner and the year of publication on copies it reproduced.
The Digital Millennium Copyright Act [117] amended section 108(a)(3), which now reads: "The reproduction and distribution of the work contains a notice of copyright that appears on the copy that is reproduced, or includes a legend stating that the work may be protected by copyright if no such notice appears on the work." Thus, for libraries there no longer is any option for the content of "a notice of copyright." The library must include the notice that appears on the work. This can be done by reproducing the page that contains this notice by writing all of the information on the copy or by creating, a rubber stamp with (©, _______ (for copyright owner), _____ (for year published) and filling in the notice information as it appears on the work. The only instance in which the stamp or legend "Notice: this work may be protected by copyright" may be used now in lieu of the actual notice is when the copyright holder does not place a notice on the work. [118] This is not exactly what librarians had hoped for; librarians had sought an amendment that would alleviate the burden of including a notice of copyright when the copyright holder failed to do so. It is likely that the amendment relates more to the new copyright management information provisions [119] than it does to providing relief for librarians. Although the legislative history states that the goal was not to increase the burden on libraries, that has not been the end result. [120]
The amendment also has implications for the World Wide Web. While webpages are copyrighted, often the developer does not include a notice of copyright. Contrary to popular opinion, publishing a webpage without notice does not place the page in the public domain. When printing or reproducing webpages for users, according to the newly revised statute, librarians must either print the page containing the notice of copyright or stamp the reproduction with "Notice: This work may be protected by copyright" if there is no notice on the webpage.
Values Conflict in the Digital Environment: Librarians Versus Copyright Holders
by Laura N. Gasaway *
NOTICE: THIS WORK MAY BE PROTECTED BY COPYRIGHT
YOU ARE REQUIRED TO READ THE COPYRIGHT NOTICE AT THIS LINK BEFORE YOU READ THE FOLLOWING WORK, THAT IS AVAILABLE SOLELY FOR PRIVATE STUDY, SCHOLARSHIP OR RESEARCH PURSUANT TO 17 U.S.C. SECTION 107 AND 108. IN THE EVENT THAT THE LIBRARY DETERMINES THAT UNLAWFUL COPYING OF THIS WORK HAS OCCURRED, THE LIBRARY HAS THE RIGHT TO BLOCK THE I.P. ADDRESS AT WHICH THE UNLAWFUL COPYING APPEARED TO HAVE OCCURRED. THANK YOU FOR RESPECTING THE RIGHTS OF COPYRIGHT OWNERS.
INTRODUCTION
Librarians share many values with creators and publishers of copyrighted works, but their interests and values sometimes conflict. Additionally, the core values of each group sometimes conflict with the goals of copyright law. While these conflicts have existed for centuries, they are escalating in the rapidly expanding digital environment, and the debate between the two groups is becoming increasingly acrimonious. Members of both groups often misunderstand copyright law and engage in overstatement, sometimes fairly gross overstatement.
Librarians and content providers share a great many core values, and work symbiotically to promote common goals. Without publishers and producers, librarians would have little to offer their users because there would be no works of literature, no reference works, no videotapes and no databases. Without librarians, publishers would lack a valuable resource to make their works available, to publicize their works, to teach patrons how to use their works, and to preserve their works for posterity. Librarians, publishers, and producers share many core values about works of literature, the value of these works, and the importance of preserving them for future generations. Although librarians and authors often disagree on issues involving digital media, both parties realize the importance and value of information to people in the digital age, and both believe that information should be trustworthy and incorruptible. Both groups believe that publishers play a valuable role in making available to the public works containing information. The editorial work, the management of the peer reviewing process, and the distribution role played by publishers is crucial to the production of quality works, and both groups believe that publishers should be fairly compensated for these contributions.
Despite sharing many common goals and values, significant disagreement exists between librarians and content producers and publishers. Librarians tend to view information as a necessary public good, such as food, shelter, and warmth; that should be made available at a reasonable cost. Commercial producers and publishers of copyrighted works, however, tend to view their works as private property that can be commercialized. Thus, the economic goals of producers and publishers often conflict with the social goals of librarians. From the perspective of the librarian community, publishers often appear to maximize profits at the expense of research and scholarship. Librarians, however, are less concerned about profit than they are about what they view as the higher-minded goal of providing high quality information to people. Conflicting values make it difficult for these groups to compromise and negotiate with each other, and each feels that its existence is somehow threatened by the other. The core value conflicts also negatively impact the debate about what role copyright law should play in resolving competing interests between publishers and librarians. This fundamental distinction between the way creators and publishers, on one hand, and librarians, on the other hand, view and value information has existed as long as public libraries have, but it has not prevented the two groups from working together in the past to create and distribute information. The evolution of the digital world, however, highlights these opposing values and appears to exacerbate the differences.
Popular sentiment sometimes supports the values of content providers and sometimes supports the librarians' values. For example, American society admires and supports capitalistic notions of developing products and then selling them to maximize profits for the entity or individuals who paid for the development and production of that product. Naturally, this position supports the views of the publishers and producers of copyrighted works. On the other hand, society also believes that public access to information and the existence of free public libraries is important -- or even essential -- in a democratic society. This supports the librarians' values.
The Constitution acknowledges the competing interests between these groups in the Copyright Clause: "The Congress shall have Power ... To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”[1] By "Science" the Framers meant all disciplines of learning, and thus promoting learning is a goal of copyright. Content providers view the Constitution's Copyright Clause as ensuring protection for their works and focus on the "exclusive Right," while librarians focus on the social good of promoting learning among the public and focus on the mandate to "promote the Progress of Science." The delicate balance between competing interests called for by the Constitution, however, may now be at risk, according to at least one commentator:
If copyright is cast too narrowly, authors may have inadequate incentives to produce and disseminate creative works or may be unduly dependent on the support of state or elite patrons. If copyright extends too broadly, copyright owners will be able to exert censorial control over critical uses of existing works or may extract monopoly rents for access, thereby chilling discourse and cultural development. [2]
As a librarian, I certainly know much more about librarians' values than I do about publishers and producers' values, but I am also a teacher of intellectual property law, and I recognize that both groups have important goals and missions. In discussing the values of the two groups, I do not mean at all to imply that right and wrong values exist. When one is discussing values, there is no right or wrong, but only differences. Additionally, I run the risk of over-generalizing when ascribing values to each group. Clearly, not all librarians have adopted the values I assign to them.
Although both groups clearly have values in addition to the ones identified here, this article is limited to a discussion of the primary values that relate to copyright. The core values of authors and publishers that relate to copyright include: (1) compensation for the creation and production of their works; (2) ability to control their works; (3) authentication and recognition of their works; (4) broad marketing of their works; (5) promoting strong intellectual property rights; and (6) viewing, the fair use doctrine as an affirmative defense to copyright infringement. [3] Librarians' core values regarding copyright law include: (1) recognition of public libraries as educational institutions; (2) providing information to the people; (3) providing information on all sides of an issue; (4) promotion of the rights of users of copyrighted works; (5) ability to identify and locate information, (6) recognition of the importance of the public domain as a repository of information; and (7) viewing the fair use doctrine as a right of a person to use a copyrighted work. [4] Societal values relating to libraries, publishers and producers and copyright include: (1) the importance of an educated population; (2) support for entrepreneurship; (3) access to public libraries; (4) the importance of the public domain; and (5) public access to information.
Value differences clearly have affected discussions and negotiations regarding copyright. Since the early 1990s, [5] disagreements between publishers and librarians have seemed increasingly acrimonious to me, and I began to wonder why. What has changed to increase the decibel level in the debate? There may be no easy answer, but, at least in part, conflicting values contribute to the disagreement and create a siege mentality on both sides. Likewise, there may be no simple solution to the disagreements that will soothe the debate between librarians and copyright holders. By recognizing the depth and strength of these values, perhaps the parties can avoid causing further schisms and entrenchment in positions that prevent agreements to solve problems conjointly.
I. CONTRASTING CORE VALUES
A. PUBLISHERS AND PRODUCERS OF COPYRIGHTED WORKS
Publishers and producers are not all alike. Similarities exist among the various types of copyright holders, but their interests are not all the same. Music copyright holders differ from traditional print publishers; videogame owners differ from photographers. Moreover, even within a class of copyright holders, differences may exist. For example, traditional publishers may operate for-profit or as a nonprofit organization, such as a society or professional association. A common goal of all publishers and producers is making their works available to the public, and doing so now requires using both traditional media and recently created digital media to distribute their works. [6] It is evident, however, that something has changed due to the growing presence of digital distribution technology, which makes copying much easier and cheaper, so that core values of the copyright holder community are threatened regardless of whether the copyright holders operate as commercial or nonprofit entities. This threat implicates another stated goal of publishers -- to encourage and promote strong intellectual property rights worldwide.[7]
The right to control reproduction is said to be the hallmark of copyright, and copyright entrepreneurs expect to be compensated when their works are reproduced. [8] Reproduction is more common and easier to achieve in the digital world than in the analog world, especially if one considers transient copies made by computers. When libraries reproduce copies and give them away, publishers believe that they should be compensated for the copies. [9] This expectation is not new in the digital environment. Authors have been aware for many years that libraries make reproductions, but have generally tolerated this practice without objection, viewing it as a de minimis infringement. Today in the digital age, however, instead of talking about infringing reproductions, copyright holders use terms like "theft" and "piracy" to describe the practice; [10] such words leave little room for debate or for considerations of exemptions such as fair use. [11] From the perspective of content providers, what has changed is not only the quantity of reproductions that may be made through electronic means, but the quality of the reproductions. The ability to produce copies from a digital work with no degradation of quality is a significant matter to publishers and producers, because it permits unlimited reproduction of information, whereas previously, the extent of reproductions was naturally limited by the means of reproduction. [12] Perfect copies were not possible until the advent of computer technology, so this is a new concern.
Publishers and producers value the ability to control their works in the marketplace. [13] Fear of loss of control now appears to be much stronger on the part of copyright holders than it has been previously. Is the increased fear justified? Perhaps it is, since loss of control easily can result in total destruction of the value of the work. The volatility of the legal environment also probably contributes to this fear, since publishers and producers cannot depend on the courts to restore that control. Once control is lost, it is lost permanently. Technology presents copyright owners with an opportunity to exert greater control over their works than ever before, since not only access to the works, but also the use of works can be controlled. [14] Concomitantly, however, detecting infringement may be more difficult. One response to the latter problem might be to prevent all copying rather than finding ways to permit lawful reproduction.
Publishers value works that they can authenticate, thus ensuring that the content they originally provided remains unaltered. [15] The fluidity of the digital environment raises concerns on the part of publishers and producers that persons will gain access to their works and then alter the works in a way that reflects negatively on the publisher. Content providers also value the ability to market and protect their works in the digital world. The digital environment permits the sale of access to increasingly smaller bits of information, which makes new marketing strategies possible. Publishers also value the ability to market their works broadly and to explore new markets. [16] Eventually, a pay-per-view distribution system in which each consumer can purchase exactly the information he or she desires may be possible in the digital world, as publishers and producers point out. Such a pay-per-view distribution system would allegedly be incredibly inexpensive for users who can purchase small bits of information as opposed to having to pay for access to the entire work. The envisioned low cost pay-per-view distribution system, however, has clearly not yet been developed, and whether it ever will be is questionable. Another change relating to marketing in the digital world licensing is increasingly recognized as a way to protect intellectual property rights, and licenses are becoming more encompassing and broader. [17] Publishers are beginning to value their control over rights and permissions as an income stream as they never have before. [18] Finally, a core copyright value for publishers and producers is the notion that fair use is only a defense to copyright infringement, and it is not a right of users of copyrighted works.[19]
Based on some of these values, radical public statements made by publishers are understandable, but they raise considerable concern on the part of librarians. Examples of such statements are that in the digital world pay-per-view will be preferable to sales of copies as a way to recoup the cost of creating a copyrighted work, and that interlibrary loans should be eliminated in the digital environment. [20]
B. LIBRARIAN VALUES
Librarians also have deeply held core values, some of which have never been questioned. Statements made by publishers and producers sometimes strike at the heart of these values. Many of these values come from what may be called the public library ethos; librarians as a group tend to share these values whether they work in the nonprofit sector or in the for-profit environment. [21] The education and training of librarians inculcates some of these values, which have been exhibited in debates and considerations about copyright.
What are some of the core values held by librarians? [22] One core value is that public libraries are educational institutions. This core value, held for at least 125 years, potentially conflicts with the Copyright Act, in which public libraries are considered nonprofit libraries, but not educational institutions. To librarians, however, libraries, archives, and museums serve such an important educational function that even when asked today, librarians often say that public libraries are educational institutions. Throughout the Copyright Act, however, phrases like "libraries and nonprofit educational institutions" are used, making it clear that the two are distinguishable. Thus, the exemptions available only to schools and other educational institutions are not available to libraries generally. True, libraries in nonprofit educational institutions straddle the divide, but other types of libraries do not benefit from the exemptions for educational institutions.[23]
The most important core value for librarians is "information to the people." Public libraries are a shared intellectual resource maintained at public expense to provide resources that will be shared. Libraries purchase works and make them available at no charge to any user of that library, which is permitted by the Copyright Act under the first sale doctrine. [24] This may conflict with publishers' goals, but section 108 of the 1976 Copyright Act, [25] called the library exemption, makes clear that the exclusive rights of copyright holders are limited to permit many standard library activities to occur without the need to seek permission from the copyright holder.
Public libraries as institutions question authority by providing information on various sides of an issue. [26] Often it would be easier and less stressful on library staff if the library provided information that supported only the dominant beliefs in a community. From earliest times, however, public libraries have steadfastly provided information on multiple sides of a matter to permit library patrons to educate themselves and make up their own minds about issues. Sometimes individual publishers have suggested that libraries purchase only their materials rather than both theirs and those of a competitor. Even publishers of legal materials have been guilty of this in private conversations with law librarians.
As part of the value of information to the people, libraries promote the rights of users under copyright. Librarians also support the right to read, the right of access to ideas, etc., and they view the role of librarians as advocates for users who often too, are silent about their needs and wants, or who may not even know what they need. Libraries are valuable to society because they provide access to information to the economically disadvantaged and to other "have nots." They provide an equalizing influence that can serve to reduce the differences between rich and poor when it comes to information. Librarians believe that users have the right to browse in the digital environment just as they do in the analog world. Browsing, is a way of selecting what information is needed, but this clearly conflicts with the content providers notion of paying for access. [27]
The Copyright Act itself recognizes some of these values in the section 108 exemption. For example, libraries may lawfully reproduce copies of portions of works, such as an article from a journal issue to satisfy a request from a user. [28] If the library to which the request is made does not hold the requested item, under the exemption, that library may satisfy the request by obtaining a reproduction of the article through interlibrary loan activities. [29] Librarians also believe that section 108 and the fair use doctrine permit them to provide library service to distant learners for whom the library is their primary library. Finally, in order to facilitate teaching, and learning, librarians see the library as an extension of the classroom with the creation and maintenance of reserve collections, including electronic reserves under the section 107 fair use provision.
Although librarians do not necessarily believe that information should be free, they do believe that once a library has subscribed to, or licensed for, access to a work, users of the library should have unfettered access to it. Some librarians would probably further argue that the location of the user is irrelevant. For example, if the user is an enrolled student of the university, whether she is physically located on campus or not should be immaterial; the critical issue is whether she is an enrolled student. Restrictions in license agreements that limit users to physical presence on the campus or restrict the ability of a library to use the work for interlibrary loan conflict with this value.
Another librarian core value is that users of libraries should be able to locate information -- i.e., identify that it exists and where. The role of librarians is to assist and teach users to locate information. This depends on standard indexing, and abstracting services as well as Internet search engines. Traditionally, indexing and abstracting services have been provided by third parties and not by the entities that held copyright in the work. For example, the H.W. Wilson Company began its indexing in 1901 with the first Readers Guide to Periodical Literature that included only 20 periodicals that were recognized as “acceptable” by the literary and academic communities. [30] The theory of indexing changed over the years with the addition of indexes such as Index Medicus that evolved into the online service, Medline, but nonetheless, third parties conducted indexing. These organizations may have been for-profit (H.W. Wilson Company), nonprofit (Public Affairs Information Service), or even a Government agency, such as the National Library of Medicine, which produces Medline. Even if the indexer was a commercial entity, it was still a third party that did not hold the copyright in the content.
Today, publishers are adopting new digital object identifiers (DOIs) to attach to digital information and to link it through indexing. The DOI index would be linked to the full-text of the work. In theory, this sounds great, since the DOI will stay with the object regardless of whether the publisher sells the digital work, etc., but some concerns about DOIs exist. With DOIs content providers would not only control the indexing, but also access to the indexing and through the index access to the digital object itself. All of this would be available to users only through licensing arrangements. Publishers state that this would be a great boon to researchers, [31] but this is true only if researchers have access to that publisher's digital materials or to a consortium of publishers' systems that are licensed. If a scholar wants to cite an article using a DOI, it would become an inaccessible reference to anyone who does not have access to one of the publishers' systems in the consortium. No longer would neutral third parties provide the indexing and abstracting services one can use to determine the existence of a work even if the library does not subscribe to the journal or proceeding, in which the work appears. [32]
Perhaps the most important manifestation of the core value of information to the people is the importance of the public domain. Librarians believe that having unrestricted access to non-copyrighted works is crucial for research and scholarship. Copyright law should not restrict public domain works in any way, and users of libraries should be encouraged to make wide and frequent use of public domain works. Further, U.S. government-produced works should be free of copyright and widely available.
Even though librarians likely hold other core values related to copyright, the last one critical to mention is fair use. To librarians, fair use is a user's right and not just a defense to copyright infringement. Further, librarians believe that not only individuals but also libraries have fair use rights, based on the library exemption in section 108(f)(4), which states that “nothing, shall affect the right of fair use.” The word used in the statute is "right" and not "privilege;" thus, it is easy to see why librarians maintain that fair use is a right, not just a defense to infringement. Whether fair use is a defense to copyright infringement or is a right has long been debated, with librarians and publishers and producers weighing in on different sides. Recently, the National Research Council recognized this divide in a report published in early 2000, The Digital Dilemma, Intellectual Property in the Information Age. It highlights this disagreement in relation to private copying, but does not resolve the dispute. [33]
In recent years a number of professional library organizations have developed policy statements that reflect and restate some of these core values. The American Library Association is currently drafting a statement of core values. [34] In the latest draft of the statement, four of the eight values identified relate to copyright. The first of these concerns is the connection of people to ideas. The other core values flow from that. "We guide the seeker in defining and refining the search; we foster intellectual inquiry; we nurture communication in all forms and formats.” [35] A second core value is the unfettered access to recorded knowledge, information and creative works. "We recognize access to ideas across time and across cultures is fundamental to society and to civilization.” [36] Learning in all its contexts is the third value. "We aid people to become independent lifelong learners by selecting and offering materials that support the differing needs of all learners, and that entertain and delight the human spirit.” [37] The fourth value that relates to copyright concerns preservation of the human record. "The cultural memory of humankind and its many families, its stories, it expertise, its history, and its evolved wisdom must be preserved so it may illuminate the present and make the future possible.” [38]
The Association of Research Libraries (ARL) has developed several documents that state core librarian values without so identifying them. Fair Use in the Electronic Age: Serving the Public Interest was adopted in the mid-1990s. [39] It details what the public should have a right to expect to do without incurring copyright liability:
• to read, listen to or view publicly marketed copyright material privately, on site or remotely;
• to browse through publicly marketed copyrighted material;
• to experiment with variations of copyrighted materials for fair use purposes, while preserving the integrity of the original;
• to make or have made for them a first Generation copy for personal use of an article or other small part of a publicly marketed copyrighted work or a work in a library's collection for such purpose as study, scholarship or research; and
• to make transitory copies if ephemeral or incidental to a lawful use and if retained only temporarily. [40]
Additionally, the ARL document posits that nonprofit libraries should be able to undertake certain activities, such as using electronic means to preserve copyrighted materials and to provide copies through interlibrary loan, on the part of their clientele without infringing, copyright. Further, libraries should not be liable for the actions of their users after they post the appropriate notices on unsupervised reproduction equipment. [41]
In 1994 the ARL adopted Intellectual Property: An Association of Research Libraries Statement of Principles, a statement in response to the White Paper[42] that affirms the rights and responsibilities of the research library community in copyright. The most important of these rights is that copyright exists for the public good, and concomitantly, fair use must be preserved in the developing information infrastructure. It also stated that licensing agreements should not be allowed to abrogate either fair use or the library exemptions provided in the Copyright Act. It recognized that librarians and educators have an obligation to educate the users of information from their collections about their rights and responsibilities under intellectual property laws. The statement opines that federal government works should remain free of copyright restrictions. Finally, it states that the information infrastructure must be formulated to permit compensation to authors for the success of their creative works and to provide fair return on investment for copyright holders.[43]
In 1999 the ARL restated some of these values in a document called its Keystone Principles, [44] which has some impact on core values. The most important of these is a slight change over earlier statements: now access to information is identified as a public good. [45] This recognizes that academic authors and institutions or public institutions often create information, and the public interest is served by having this information available. The ARL believes that commercial enterprises have disrupted the public availability of such information through pricing policies, licensing restrictions, and the like. [46]
C. SOCIETAL VALUES CONCERNING LIBRARIES AND COPYRIGHT
Probably the core value that members of the public hold most dear in this area is the importance of an educated populace. The U.S. Constitution is a charter for self-government, and only an educated populace can self-govern well. [47] Libraries play a crucial role in creating an educated citizenry through literacy and reading programs, and simply by making information widely available to the general public. Thus, it follows that the public value of education may be furthered by the availability of free public libraries. Another value the public holds is the importance of the public domain. While copyrighted works play a key role in “promoting the progress of science and the useful arts," [48] public domain works provide much of the intellectual commons that members of society share. Evidence of a contrary view might be found in the recent reduction of the public domain by the retroactive extension of the already long term of copyright by an additional 20 years. [49] Additionally, it is clear that American society recognizes the importance of public libraries and public access to information. There is considerable public support for libraries. In mid-1998, a Gallup poll showed that 67% of Americans visited a public library within the last year, 54% checked out a book, and 21% checked out other materials, like a CD or a video. [50] "In the continuing struggle to establish and maintain democratic values, free public libraries are essential for providing information and knowledge.”[51] There is also a civic aim: the free public library offers citizens a way to become informed and educated citizens.[52]
II. HOW DID LIBRARIANS' CORE VALUES DEVELOP?
A. HISTORY OF PUBLIC LIBRARIES
As the first major urban public library in the United States, the Boston Public Library was opened to the citizens of Boston in 1854 in rented space on the bottom floor of a school on Boylston Street. The idea for a public library actually had begun 30 years earlier with a proposal to unite some of the city's privately owned libraries. In 1839 Alexandre Vattemare proposed that the great cities of the world exchange cultural items such as books, works of art, etc. He also suggested that the cities build libraries and museums so that the public could then view the collected cultural artifacts. [53] Vattemare visited Boston in 1841 and proposed a merger of 15 private libraries. Not surprisingly, most of these libraries were less than enthusiastic, but in 1847 he persuaded Boston officials to build a public library. [54] The city council succeeded in negotiating a $50,000 loan from a London bank with which it created a book fund. Three years after the 1854 opening, the Boston Public Library moved into its own building with space to house 240,000 volumes. [55] By 1875 the public library movement was well underway; 188 libraries had been established across the country, and more were planned. Public libraries were considered to be educational institutions [56]. The belief behind public support for public libraries is expressed in an 18th century Rationalist view of American Democracy, "that every person should have an equal chance to fulfill his abilities; that every man can and will do so if given the chance; that the individual shall be free to develop his inclinations and capacities; and that society will progress as the enlightenment of its citizens advances.” [57] Librarians viewed themselves as missionaries of literature, and began to assist schools. The general view was that public libraries were poised to help the country solve various social problems. [58] In the last decade of the 19th century librarians wanted to elevate society and raise the levels of knowledge, goodness and wisdom. [59] Libraries then and now are considered to be a public good, [60] and [p]ublic libraries, like public schools, came to be accepted as public responsibilities, civic goods benefiting the entire society and thus worthy of pubic support. [61]
As the library historian Patrick Williams described librarians at the close of the 19th century and into the 20th century, librarians were inspired: "[t]hey idealized the library as messianic, as an agency of national salvation. They saw themselves as missionaries enlivened by the library spirit.” [62] They continued to insist that public libraries were educational institutions. The Library Spirit was compared to the spirit that built the great European cathedrals. The spirit was one of service, and brought books and learning to towns and hamlets, as well as cities. Libraries were altruistic in nature, and everything seemed to be working. By 1896 there were 971 public libraries with 1000 volumes or more; by 1903 there were 2,283. [63] Between 1906 and 1915 Andrew Carnegie donated money from his personal fortune to build over 639 library buildings in cooperation with local governments. Governments also became more active in library development and building. Books were distributed in traveling libraries to rural areas. Public libraries in cities and towns placed books in public schools, firehouses and police stations. [64]
Public libraries' missionary service also included immigrants. [65] Libraries viewed this Americanization effort as a service to the immigrant community; it was their patriotic duty and a role that librarians willingly accepted, apparently with little question. [66] It seems to have been a goal of public libraries to work with immigrants. Libraries apparently viewed themselves as civilizing influences, and services to immigrants were viewed as a social obligation. [67] Public libraries provided books to immigrants, sometimes in the immigrant's own language, lectures on a variety of topics such as health, food, American law, etc. They offered classes on English, and immigrants were taught manners and how to behave. [68] What was taught was often described as the “American way of life.” [69]
By 1915 the missionary era was coining to an end [70] and was being replaced by the new rage, adult reading courses. From 1920-48 public libraries were involved in the adult education movement. Adult education was not a new idea, but it was newly emphasized by government at this time. There had been earlier lecture series that were aimed at educating adults, like the Lyceum and Chautauqua series in addition to local lectures held at public libraries. [71] After the two World Wars, however, much had changed in society. Although public libraries had made significant contributions to individual lives, they had not been greatly successful in educating the masses. [72] In the 1950s the American Libraries Association (ALA) and others thought that the Library Services Act [73] would contribute significantly to creating equal education opportunity for rural America. [74]
After World War II, the Carnegie Corporation was consulted to see if it could determine why support for public libraries was so weak if they were indeed so necessary to a democracy. After discussions with library leaders, the ALA sent a proposal to the Brookings Institute in 1946 for a study, now referred to as the Public Library Inquiry. Sociologists and others assisted librarians in this important study. [75] The study was to be wide ranging, and to examine how well the public library served its various user populations, along with how effective it was in cultivating loyalty to the basic conceptions and ideals of the democratic way of life. [76] The Public Library Inquiry produced a number of reports that probably were infused with bias, and it assumed certain contentious values were widely shared so that its recommendations could be accepted. [77] One of the central findings came from the belief that the capability of learning was universal. This notion was dubbed as the "Library Faith," which is expressed by the syllogism that printed works have such value that reading itself is a good; reading in order to learn is moral and useful behavior, so libraries contribute value to society. The public library is important to the democratic process because of its relationship to books and reading. It provides free access to all library users of works that have value because they enhance a user's pursuit of knowledge and happiness. Further it provides sources of knowledge for the informed citizenry who are responsible for the very fate of democracy. One final goal and value of the public library is that it both preserves and organizes recorded knowledge worldwide and thus plays a critical role in cultural and social continuity. [78] The Inquiry maintained that this faith was historical and was central to the ideology of public librarianship. The ideology was the lens through which librarians viewed the world and made decisions. Further, the ideology adopted a justification that saw the public library as occupying a unique place as a state institution, which contributed in very specific ways to democratic culture. [79]
The Library Faith has its roots in the 19th century. Charles Coffin Jewett, in his 1849 report to the Regents of the Smithsonian Institution, identified two social benefits provided by public libraries: (1) a direct benefit to the ordinary American who can use the collections and services to improve practical skills, gain cultural knowledge, enhance moral strength and increase productivity, and (2) an indirect benefit to the nation in the form of greater economic productivity and a better quality of life. [80] Jewett's view is consistent with the Library Faith and describes the public library as an intellectual commons, contributed to by everyone and available to all. A part of the value of the public library comes from the very fact that it is a shared resource. [81]
The Library Faith was resurrected in the Public Library Inquiry, but this time it was armed with a strategy for action. [82] The central purpose of the Inquiry was to establish a link between democracy and free public libraries. The Public Library Inquiry offered an empirical examination of the public library in terms of what the institution had achieved and what could have been achieved when compared to its own objectives. Then, it attempted to place the public library in the broader context of American culture and politics. It was also an attempt to stimulate librarians to reexamine their professional values. [83]
The Public Library Inquiry resulted in seven books and five special reports. It was really a survey instrument, a study of public libraries that would tell librarians what to do to make their public libraries the instrument of popular education that they wanted them to be. It suggested that libraries should reinvent themselves to ensure users the "widest possible range of reliable information." [84]
Beginning with the Library Services Act in the 1950s, changes were inevitable; bookmobiles hit the road in the 1960s with service especially to rural areas, and adult education efforts continued in to the 1960s. [85] From 1965-80, activists began to push services for persons considered disadvantaged who traditionally did not much use the library. Renewed outreach beginning in 1967 indicated a significant difference in the types of works that public libraries needed to provide: movies, tape recorders, viewmasters, etc. But by 1970 outreach programs began to wane. [86]
A Strategy for Public Library Change was presented at the Public Library Association meeting in January 1972. [87] The Strategy proposed a new role for public libraries, premised on the concept that information in the form of data, facts, and ideas is essential to the flourishing of the country's citizens, which redefined the role of public libraries as information providers. [88] By the late 1970s a new emphasis on providing information to everyone had developed, which stressed that "[all] information must be available to all people in all formats purveyed through all communications channels and delivered to all levels of comprehension.” [89] This very broad role envisioned for public libraries, however, was one few would be able to meet. Nevertheless, the role of information provider is an appropriate one for libraries since “access to the accumulated information, knowledge and wisdom of humankind is essential. ... It is that function which the library performs best ... [90]
B. EDUCATION AND TRAINING OF LIBRARIANS
The education and training of librarians is based on ideals such as the Library Spirit and later the Library Faith. The first librarian education program was founded at Columbia College in January 1887 under the direction of Melvil Dewey. Classes were held across the street from the main campus, because not only did the first class admit women, but the class was also comprised of 17 women and three men. Faculty members were predominantly members of the library staff of the libraries at Columbia with some other librarians brought in as guest lecturers. Faculty members were supposed to inculcate the library spirit -- an attitude about library use and access to those collections. It was this library faith that distinguished Dewey and his generation of librarians from earlier generations whose primary goals were security and preservation of collections. [91]
The Library Faith permeated early library education and continues to this day. Librarians are trained with the public library ethos, and it carries over into their work lives. Even librarians in the for-profit sector often still operate with this library faith at work. They have often had difficulty in recognizing that the for-profit environment may significantly change the relationship between copyrighted works and the user. Librarians have tended to view all users as having rights to access and use works just as members of the public have this right. The copyright law may, however, differentiate between those users of public libraries and users of a corporate library, if the Texaco [92] case is any example.
C. LIBRARIES IN THE PRESENT DAY
Libraries have developed into well-defined social institutions that hold a collection of "knowledge representing objects." Libraries play several roles: (1) they are consumers in the economic system, (2) they participate in the political system and (3) they serve as locations of social exchange in the everyday lives of people in the community. [93]
Librarians have always been concerned with information content stored in artifact form such as books, journals and film. [94] Librarians are primarily information handlers: they acquire information, organize it, provide access to it, [95] and "serve as intermediaries between the public and the objects of cultural and intellectual authority." [96] Historically, librarians were also concerned with activities relating to the process of publishing and distributing copyrighted works, but to a much lesser degree. Their primary concern was with the collection, storage, and access to static content, rather than with the process of producing and publishing content. Today, however, much information is increasingly dynamic, and it is clear that information consists of both content itself and the process of producing and distributing it. [97]
A central tenet of librarianship is that access to information should be free. [98] Because the accumulated cultural memory is stored in libraries' collections and available for consumption by the library users, libraries facilitate information exchange among individuals and society -- knowledge contained in the library is transferred to users, for example, when they read. The result of this transfer is socialization and education, but it also facilitates solutions to personal problems and the generation of new knowledge. [99] One noted commentator says of information that "[p]ower in the information age, just like power in the bronze age, the iron age, and the ages of Enlightenment and Industrialization, flows primarily to information users and creators, and most power in the information age, just like most power in the bronze age, the iron age, and the ages of Enlightenment and Industrialization, flows to those best situated politically, economically, socially and culturally. [100] The librarians' role as teacher is also expanding as they train people to use the Internet and attempt to screen for quality content in the vast sea of digital information. Furthermore, as technology allows information to become more proprietary in the digital environment, the role of libraries is expanding to ensure freedom of access to information. Another traditional role for libraries is preservation, but preservation of new, elusive and alterable digital knowledge is just now beginning to be addressed. [101]
Librarians also fight the dominant culture by collecting materials the dominant culture does not value or approve of. Libraries bring a vast amount of material together and challenge power by facilitating access to works and by organizing the information regardless of textual format or content. Librarianship is essential in a capitalistic democracy because freedom of access to information is crucial in a democracy even though capitalism may not appreciate this necessity. [102] Librarianship facilitates reading, the chief value of which is to produce educated people who, having imbibed knowledge and values, contribute to the important process of cultural and social change and to the survival of culture by virtue of the kind of people they have become. In the information age, librarianship takes on another important role since individuals are viewed as using documents for their information content to solve particular problems, whether personal or social, in addition to generally improving society by reading. [103]
The commodification of information is a threat to the public's access to information. This is why the slogan that "information wants to be free" [104] is so attractive to librarians. What librarians really want, however, is not that information be absolutely free, but that it be only free to the user after the library has paid for access for its users. Librarians view their role as helping and providing information to those who need it; often they do not recognize that this may conflict with publishers' and producers' values. For example, to publishers, the fact that perfect copies can be reproduced from digital copies is a critical concern in evaluating the harm to the market that copying causes. Such copies are basically viewed as "originals." To librarians, however, the fact that a copy of a textual work is a perfect copy is immaterial. Librarians view what they do as providing the copy to users, and as long as the information is legible, the quality of that copy simply does not matter. [105] This is one reason why publishers and librarians are often talking at each other as opposed to reaching real understandings.
Publishers appear to be under the impression that most librarians believe information should be absolutely free. This is not an accurate portrayal of librarians' views. Since libraries were formed, they have purchased materials in order to make them available to users. Thus, the materials budget for many libraries is quite large, [106] and there is an understanding of the value of these works and the importance of the information they contain. Librarians certainly recognize that copies of books, journals and the like must be purchased, since donations are not likely to provide the balance and breadth that most seek in developing library collections to reflect all sides of an issue. Additionally, for several decades libraries have been signing licenses to make information available online to their users; there has been no thought or debate that non-public domain databases should be provided free. Librarians also recognize the investment made by database developers to collect and organize the information contained in these valuable research sources, and that there must be fair return on this investment.
What librarians staunchly advocate is that individual users should not have to pay for information obtained from their public libraries. Libraries should be able to negotiate licenses to provide access for users in their companies, academic institutions, and public libraries. They fear the threat that information will become pay-per-view and that the library will no longer be able to negotiate appropriate terms and fees to make a database available to its users. So, statements such as "information wants to be free" may simply mean free to the individual, not free to the library. If database proprietors charge too much for the license fee, then the library will not be able to purchase access for its users. This will mean that patrons with economic means will be able to afford individual access to the data while the masses will not. The idea of "information have-nots" provides a direct clash with the core values of librarians. Librarians deeply believe that information should be available to everyone who chooses to come to the library to use it, and that access by individuals should not be determined by their ability to pay. This likely originates with the idea of free public libraries and universal service.
Pointedly, this does not mean that no one should pay for the information. Indeed, the library has long agreed that it should foot the bill for access to information. It just may not be able to do so if license fees become too high or if the pay-per-view model is adopted. Libraries must have a "sum certain" in the budget -- they tried in the early 1970s simply to allow access and pay for "hits" in a database, but many libraries had to abandon this practice or even curtail it in the middle of a fiscal year when the charges reached the amount budgeted to cover use of that database. Negotiating, for a year's access, not on a per search basis, but on a flat rate permits the library greater flexibility even if it then has to narrow access to everything in the database as a way to reduce its costs.
Librarians also fear the possibility that pay-per-view will mean that their role as intermediaries will be threatened. Librarians have long assisted users with their information quests, taught them how to formulate their queries, how to conduct research more efficiently and effectively, and guided them through the complex maze of available resources. The goal is to help each user get exactly the information he needs; not too much information, and not information that is overwhelming to the user. This intermediary role is a type of information filter, not a censor. The training of librarians helps them to determine which sources are age and experience appropriate, how to best search the contents and how to help users so that they can become independent and confident researchers.
III. LIBRARIES AND DIGITAL COPYING
Many of the value differences between copyright holders and librarians are highlighted by the various exemptions to the Copyright Act. Section 108, which provides certain exemptions for libraries vis-à-vis the rights of the owner of the copyright, is particularly relevant to this discussion. In addition to the library exemptions, libraries also have fair use rights. [107]
A. ELIGIBILITY FOR THE LIBRARY EXEMPTION
Section 108(a) details the conditions under which a library or archives is eligible for the library exemption. First, the section permits making only single copies of works except for preservation purposes, when, under certain conditions, the library may make up to three copies. [108] Second, the reproduction and distribution must be made "without direct or indirect commercial advantage." [109] The meaning of this phrase has never been litigated, and the legislative history is not abundantly clear. It is in this requirement that evidence of the values conflict is evident: what does “without direct or indirect commercial advantage mean”? Publishers say that if the library is in a profit-seeking entity, the library cannot meet this criterion. Librarians do not accept this interpretation of the words of the statute. They believe the statutory language means that it is the reproduction itself that may not be used for direct or indirect commercial advantage, i.e., sold for a profit. There is additional support for this position in the legislative history discussing section 108(g)(1); the House Report states that even a library in a for-profit entity may reproduce an article for a user to use in her work as long as it is an isolated and spontaneous request. [110] Therefore, if the library provides document delivery services to its users, and, even if there is a fee charged for the service, it can argue that there is no direct or indirect commercial advantage if that fee represents only cost recovery. Instead, it is revenue neutral and there is neither a commercial advantage nor a disadvantage. However, later amendments to other sections of the Copyright Act all seem to insert the words "nonprofit" before library, which offers some evidence that legislators, at least after the passage of the 1976 Act, considered exemptions necessary for libraries to apply only to the nonprofit sector.
The third requirement is that the library's collection must be open to the public or to non-affiliated researchers doing research in a specialized field. [111] Certainly many libraries in nonprofit educational institutions as well as public libraries meet this criterion. For other libraries, this might be met even if the collection is not open to the public generally but only by appointment for qualified users, such as researchers. Libraries that are not open to any outside users have a more difficult time qualifying under this criterion. Librarians likely would argue that a library not open to outsiders but which lends any of its published materials through interlibrary loan also qualifies for this exemption; publishers likely disagree, but the matter has never been litigated. The fourth and final requirement concerns notice of copyright on copies the library reproduces.
B. NOTICE OF COPYRIGHT
Notice of copyright is a term of art in copyright law: it consists of three elements: (1) the word "copyright," the abbreviation "copr." or a "C" in a circle; (2) the year of first publication; and (3) the name of the copyright holder. [112] Under the 1909 Act, an owner lost her rights if she published a work and failed to include such notice on copies of the work and did not give actual notice of copyright. [113] The more author-friendly 1976 Copyright Act softened the automatic loss provision. An author did not lose his copyright for any accidental omissions of notice if, during the first five years after publication, only a small number of copies had been distributed without notice, and if he later tried to correct this mistake. [114] When the United States joined the Berne Convention in 1988, [115] notice of copyright was dropped as a formality, and today, placing notice on protected works is voluntary. Librarians generally regret this change in the law. Professional librarians and users depended on the notice of copyright to differentiate between works in which the owner claimed rights and those works that were in the public domain. It seems that the burden on the copyright holder was slight in comparison with what copyright notice did for the public in differentiating works in which someone claimed rights from those in the public domain.
Throughout section 108, libraries that reproduce works under the exemptions are required to put a notice of copyright on the copies they make. The policy behind this requirement is to alert users that although the library was able to make a copy of a work for them, the work is not free of copyright restraints. Within the library community, there continues to be debate over the meaning of "a notice of copyright." To the copyright holder community, notice of copyright is a term of art in the law, and most copyright lawyers believe that it meant the library should include the three traditional elements that comprise notice of copyright under section 401(b) mentioned above. Some librarians argued that a library should simply stamp photocopies and other reproductions with the American Library Association recommended statement "Notice: This work may be protected by Copyright." [116] Despite this on-going debate, the matter has never been litigated. Many libraries have religiously used a stamp containing the ALA recommended wording, while others had a stamp made with ©, _____, 19_ or 20_. Then library staff members would fill in the name of the owner and the year of publication on copies it reproduced.
The Digital Millennium Copyright Act [117] amended section 108(a)(3), which now reads: "The reproduction and distribution of the work contains a notice of copyright that appears on the copy that is reproduced, or includes a legend stating that the work may be protected by copyright if no such notice appears on the work." Thus, for libraries there no longer is any option for the content of "a notice of copyright." The library must include the notice that appears on the work. This can be done by reproducing the page that contains this notice by writing all of the information on the copy or by creating, a rubber stamp with (©, _______ (for copyright owner), _____ (for year published) and filling in the notice information as it appears on the work. The only instance in which the stamp or legend "Notice: this work may be protected by copyright" may be used now in lieu of the actual notice is when the copyright holder does not place a notice on the work. [118] This is not exactly what librarians had hoped for; librarians had sought an amendment that would alleviate the burden of including a notice of copyright when the copyright holder failed to do so. It is likely that the amendment relates more to the new copyright management information provisions [119] than it does to providing relief for librarians. Although the legislative history states that the goal was not to increase the burden on libraries, that has not been the end result. [120]
The amendment also has implications for the World Wide Web. While webpages are copyrighted, often the developer does not include a notice of copyright. Contrary to popular opinion, publishing a webpage without notice does not place the page in the public domain. When printing or reproducing webpages for users, according to the newly revised statute, librarians must either print the page containing the notice of copyright or stamp the reproduction with "Notice: This work may be protected by copyright" if there is no notice on the webpage.