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Born Digital: Works here today, maybe gone tomorrow

To celebrate Copyright Week, the American Library Association will join a number of organizations to exchange ideas, information and actions about copyright reform. From Monday, January 13th until Saturday, January 18th, copyright experts will explore different aspects of copyright law on the District Dispatch.

Guest blogger: Eric Harbeson

At the 2009 Music Library Association national meeting in Chicago, Northwestern University music librarian D.J. Hoek addressed a session on the future of the CD with a previously under-explored problem. A new recording on an important classical music label had been released exclusively as a digital download. The terms of service for the download stipulated that only end users were permitted to enter into the agreement, and since libraries are not end users, they were forbidden from purchasing the recording.  Though it has received more attention (notably in the New York Times), the situation hasn’t improved in the intervening years, with the result that, 5 years after Hoek’s call to action (which appeared shortly after in American Libraries), there is a growing number of important recordings–in some cases Grammy- and Oscar-winning recordings–which are nearly or entirely absent from library catalogues nationwide.

The ramifications for libraries are not difficult to spot. Libraries’ traditional role in society, of acquiring works and then sharing them broadly with their users, continues to play a pivotal role in all serious research, and provides an important place in our quality of life, allowing for self-education, creative growth, etc.  The good that libraries do for communities, for rights holders, for education, and for society at large, is well documented.  Happily, the works available only through digital downloads are still a minority, and so the problem for libraries has been comparatively minor so far.  But there is definitely a trend toward digital-only distribution, and the forecast is dire.  A library that is not able to acquire new and relevant content is no longer able to fulfill the defining element of its mission.

There is a great deal of discussion these days about how outdated copyright laws have become, and I tend to agree.  But in this case it isn’t copyright that is the problem: were copyright the only factor in use of digitally-distributed content, our discussions about what we could do with our digital content would be no different from the rest of our copyright debates: we would could make fair uses of the content; libraries could acquire the content, and make them available on CDs or other digital devices.  We could take advantage of classroom teaching exceptions, library preservation exceptions, or exceptions for the blind or disabled.

The current iTunes terms of service require that the user agree not to “modify, rent, lease, loan, sell, distribute, or create derivative works.”  Material from iTunes can be used only for “personal, non-commercial use” by the “end user only.”  Even without such texts, a copyright holder would already have the right to control much of what the license spells out.  The rights to distribute and create derivative works are already the exclusive right of the copyright holder.  But exclusive rights are not quite entirely exclusive, and in order to balance the public’s interest with the right holder’s, Congress (often taking a lead from the courts) has carved out exceptions when the Constitutional purposes of copyright were getting lost in the shuffle.  With the increasing ubiquity of digital content distribution, however, all that careful balancing is lost, and we’re left with truly exclusive rights.

Copyright laws may be outdated, but the problem we’re seeing here is an outdated understanding of contracts.  Contract rules were designed for processes that involved two parties with equal opportunity to negotiate terms, but iTunes is a one-sided distribution, more closely resembling a sale.  This is why the notion that we aren’t buying something from iTunes (et al.) is so confusing to many of us.  We go to the iTunes store, we select our product, we’re given a big button that says “buy,” we authorize payment to our credit card, and then we have the product.  And in the process we click “okay” to a bunch of legalese, because there is no “I accept but only under these revised terms.” option (and, let’s face it, not many of us enjoy reading through 27 pages of legal jargon every time we want to buy a song).  Even though we’re agreeing to a license to use the product, it feels like a sale because it resembles a sale in every meaningful way.  It was designed to.

There are reasons why the system evolved this way, and in some cases good reasons.  But though the sanctity of contracts is one of our most revered legal principles, it needs to be re-understood so that libraries and archives are not drowned in the process. Contracts work, because two parties are given an opportunity to negotiate terms and arrive at a compromise.  One party may give away rights in exchange for concessions by the other that give them other rights, etc.  When one party is kept away from the negotiating table, an important part of the process is lost, and what emerges is a parallel copyright regime–one with all of the right holder protections, but without any of the protections of the public.

At the risk of a tautology, if libraries are going to continue to collect the most relevant content for their patrons, they need to be able to acquire it.  And even though contracts are generally the jurisdiction of the states, libraries need a federal solution that will give them the latitude to do so.  Congress was given the power to govern intellectual property laws in order to ” promote the progress of science and useful arts.”  The development of a parallel copyright regime, one that excludes the participation of libraries, is compromising that authority.

Eric Harbeson is the music special collections librarian at the University of Colorado at Boulder.  He holds master’s degrees in music from Cleveland State University, and in Library and Information Science from the University of Illinois at Urbana-Champaign.  In addition to his work with the ALA, where his is an active voice in legislative and policy matters, Eric is chair of the Music Library Association’s Legislation Committee, and has advocated on behalf of that organization on copyright and other legal issues in a variety of fora.  His research currently focuses on copyright ownership issues surrounding sound recordings, especially as they pertain to student recitals and other sound recordings produced in the daily business of educational institutions, for which he was the inaugural recipient of the American Library Associations’s Robert L. Oakley Memorial Scholarship.

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Carrie Russell

Carrie Russell is the director of the Program on Public Access to Information in the Washington Office. Her portfolio includes copyright, international copyright, accessibility, e-books, and other public policy issues. She has an MLIS from the University of Wisconsin-Milwaukee and an MA in media arts from the University of Arizona.

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