What's Section 108? This is the section in the copyright law (Title 17 of the US Code) that provides exceptions for libraries. Libraries are given the right to make copies of works under certain circumstances, such as for preservation or for Inter-Library Loan. This isn't a blanket exception; there are very specific requirements that must be met before a library can make such a copy. But it is a recognition that there are times when the needs of study and scholarship are important enough that individual copies can be made even of works that are still under copyright. Unfortunately, Section 108 was drafted in 1976 when "copy" meant "photocopy" not "digital copy," and thus the Section 108 Study Group has been formed to address the possible upgrading of the library exception for the digital age.
I wrote earlier about the questions that would be addressed at this discussion, and fortunately the transcript has cleared up some of the puzzling wording of those questions. What really strikes me, however, is something very similar to what I felt while reading the 1994 hearings: it's much like the elephant and the blind men, and everyone is talking about something totally different. Just to give you a flavor, here are some quotes from around the table at the Section 108 hearings. Tell me if you think these people share any reality at all.
First, you have the publishers vs. the libraries. In general, the publishers feel that they have made materials available in digital format, and that all users should be directed to the publisher's copy. There is a general sense that libraries should not be delivering digital resources:
There's the assumption here that every book lent is a book not purchased, at least when they are best sellers. This is similar to the argument made by software companies when they tally up the cost of pirated software, as if every illegal copy replaces a sale. Undoubtedly some of the books borrowed from the library would be purchased if the library did not exist, but some other portion of those would simply not be read. And no where did any of the publishers in this discussion acknowledge the role that libraries play in preserving books that they have abandoned when their profitability falls.
ROY KAUFMAN (John Wiley and Sons): "... when we start talking about digital delivery and I’m not per se opposed to digital delivery, we need to address the fact that these documents are all available digitally from the publishers in real time. As long as it takes to set up your credit card account once and then instantly, whether you are a user from anywhere in the world or a library that might actually get it faster and cheaper because you’ve already licensed the right to it...."
DWAYNE BUTLER (University Libraries, University of Louisville): "... I know lots of people that rely on libraries that don't have the financial means to buy into the pay for view model.... To recognize that not always are we going to be able to buy those materials because all of us don't have those resources."
KAUFMAN: "So why does it come from us? Why does the fact that you can't afford to buy it mean that the publishers have to give it away for free?"
ROY KAUFMAN: "But there are libraries, ARL libraries, who have set up in violation of CONTU, because CONTU says this doesn’t apply to them, centralized document delivery platforms, which they call ILL. And they charge $15.00 to send the copy. And it is set up like a business. These exist now. And they can certainly increase the staffing as the demand increases because they’re making money on it. And competing unfairly with those who are charging copyright fees, so it’s a lot cheaper."
ALLAN ADLER: "Fairfax County Public Library System is utilizing a software system that allows them to determine with a fair amount of precision how much circulation there has been for every work that is in their collection... And the disturbing aspect of this with respect to the discussion we’ve been having now, is it shouldn’t surprise many people that what they’ve been finding is that the types of works that have significant scores for circulation are precisely the kinds of best-seller types of works that are sold by booksellers.... with some of the proposed revisions and changes under section 108. If in fact it is going to mean that some of these libraries are essentially going to become little more than competition to booksellers in being able to service what their user community defines as what they truly want to have access to...."
Here's proof that there are people on this planet who slept through the Napster era:
ALLAN ADLER (American Association of Publishers): "... a case or at least a fair argument to be made that the treatment of text-based works under the law like this is tending to lead a lot of people to believe in our Internet culture that text-based material that appears online can be taken. Whereas I think people pause, at least for a moment, before they do that with an audiovisual work or a musical work."Actually, Adler is making the point that the current Section 108 allows copying of text but not of some non-text formats. This is undoubtedly due to the fact that Section 108 addressed the photocopy era. In his view, the publishers of print materials are being penalized by Section 108.
The publishers are clearly angry, and they even get a bit threatening:
KEITH KUPFERSCHMID (Software Information Industry Assn): "we also believe that technical protection measures must be used to make sure that these copies are not abused by the people – by the patrons and the people that you’re giving these copies to. It is extremely disturbing to read comments, in particular the comments I saw from ALA and ARL that I think were published in November of last year that would object to any amendment in 108 that would require the use of technological protection measures, especially those in particular – similar to the TEACH Act. To me what that smells like is that these groups don’t – they want to benefit from the new technologies but they are not willing to take on the responsibilities that go along with it. And that is – that is exceedingly disturbing and quite frankly, if that is the endgame, if that is the position taken by the libraries, I know my association and I am sure others will take a much stronger stand opposing other amendments that might take place to 108."Some of the librarians tried to explain to Kupferschmidt that the TEACH act relates to classrooms, which is a much more controlled environment than, say, a public library. And no one talked about the costs of technological protection mechanisms and who would foot the bill for them. Adler's threat is that books and journals would come with shrink-wrap licenses, although he doesn't give any hints of what might be in those licenses. My sense is, however, that copyright law is increasingly being seen as anti-business, and that licensing is seen as the solution. What are the odds that the licenses that would be created today would make sense a century from now, when that book is still on the shelf of a library? The long view, however, is not common in the for-profit world.
ALLAN ADLER: "But the more we talk about this world, the more we have to remember you’re going to continue for a long time to be dealing in hard copy print material in terms of what your average patron is going to be seeking. Whether it’s for a public library or an academic library at an educational institution, they may very well be seeking predominantly to use those hard copy print versions. And once again, I assume that neither side wants to see this issue of the revision of 108 evolve in a way that is going to require those works too, to come with a long license agreement that lays out additional terms specific to how those works can be used."
When you get beyond the publishers v. librarians, there are some folks who can bring some interesting realities to the discussion:
MARC MAURER (National Federation of the Blind): "I, for my part, am pressing as hard as possible on getting books digitized.... The reality is that of the many thousands of books that are printed each year, a very, very tiny percentage is ever available to the population I represent... The Google people, as frightening as they may be to some, are annoying to us because although they are making these digital books available, they are presenting them in a non-usable format for blind people. I have talked to them about changing their minds about that. And one of the major things they're worried about is whether or not they're going to face copyright challenges."I'm not sure that these snippets give you an idea, but a conversation between the for-profit publishers and the library and archives people always seems to reveal that we operate under entirely different paradigms. One publisher stated that it costs libraries $30 per ILL request, but they could buy the item from the publisher site for $25, so why don't they do that and save $5? And of course the $30 is an estimate of personnel time, not of "out of pocket" costs, so there is no $5 to be saved. The same with the statement above about libraries charing $15 per transaction, as if they are making a profit. While this seems absurd to me, it's very hard to convey the reality of libraries to those who work in the for profit world. I remember one meeting where a publisher promoting e-books said: "This would be good for libraries. You would provide more service, and therefore you'd get more revenue." It took many exchanges to convince this person, who was very sympathetic to libraries, that there is no real connection between providing more service and getting more money. In fact, a library can circulate more books AND have its budget cut. That makes no sense in the commercial world.
SUSAN CARR (American Society of Media Photographers): "Our concerns are that a digital copy of a photograph is a clone and can destroy the market value for a professional, of that image. And so safeguards, special safeguards would have to be put into place..."
LOGAN LUDWIG (Medical Library Association): "I can't speak to entertainment copying because we don't do a lot of that.... But I know our researchers, who are looking at scientific information, want the closest to perfect image reproduction that they can get. And if you talk about thumbnails and those kinds of things, I personally don't want my healthcare diagnosis based on that."
WILLIAM MAHER (Society of American Archivists): "For the kinds of things that are 108(i) category materials that are held in archives, they are generally the only copy that exists... And in order for somebody ... to be able to examine a photograph of a prairie dredging machien to find out about technology in 1910, the only way they can do it is to have a copy of the work.... So it's really important for us to make those copies."
There's also a vast gap between those who produce popular materials, and those who produce academic and scientific data. This didn't come out very clearly in this discussion, but you just can't put Time-Warner and a medical imaging company in the same copyright boat, and you can't lump together a fashion photograph sold to Vogue magazine last week and an anonymous photograph of a mid-20th century historic moment. I don't know how we draw the line, but these differ so greatly in both their social and their commercial value that it seems absurd to try to create a single law that covers both. If there weren't money involved, I think we could just use common sense, but money changes everything.