At the recent DLF forum,Melanie Schlosser gave a very interesting presentation entitled “Whose Stuff Is It, Anyway? A Study of Copyright Statements on DLF-Member Digital Library Collections” I hope Schlosser publishes this as a written paper, not just slides.
Basically, Schlosser found that copyright statements on items in library digital collections were often mis-leading or outright inaccurate. Schlosser suggested that libraries have a responsibility to make these statements accurate both simply to be providing accurate information, and to further libraries mission to educate users as to their actual rights under copyright and how to recognize “copyright fraud”, when a publisher tries to mis-represent their copyright as stronger than it is.
Schlosser gave libraries the benefit of the doubt in suggesting that most of these errant copyright statements were inadvertant, or due to lack of resources (or lack of information) to assign accurate statements. I think this is probably right in most of the categories of errant statement she found, determining copyright is always a mess to deal with.
But there’s one category where in my opinion (not necessarily Schlosser’s), libraries are actually fairly intentional about copyright misdirection.
Selling what you ain’t got
That is, when libraries try to convince users that they are legally obligated to pay the library for “commercial use” of images that the library does not have a copyright (or a license) to in the first place. This seems to be a fairly common business model in special collections (and museums, for that matter, which I know even less about).
Some of these materials may be in the public domain, which would mean that someone would generally have the legal right to use the image however they want (including commercially) without permission from anyone. Other of these materials may be in copyright, but the copyright is not held (or licensed) to the library in the first place — which would generally mean that you would need someone’s permission to reproduce the work, but that someone isn’t the library, and getting permission from the library wouldn’t give you any more legal rights than you had already. (And it’s not always clear which is which, even to the library; the difficulties of figuring out copyright existence and ownership were addressed in another context in another DLF presentation.)
Yet special collections have long funded themselves by convincing commercial users that they need to pay the library to use the materials commercially. Something that isn’t actually legally enforceable, but who would pay it if you said “We’d like you pay us to use these images commercially, but you aren’t actually legally required to.” So I think this leads to statements which, while not necessarily outright lies about intellectual property ownership, are generally intentionally misleading, suggesting that the library has the power to require you to pay for commercial use (and unintentionally implying that the library has the power to authorize reproduction, which they usually do not; this seems legally dangerous to the library if there was an actual copyright holder who cared).
[Libraries could certainly charge a reproduction fee. But once reproduced and delivered, the library has no legal standing that I know of to keep the recipient from re-distributing or reproducing the delivered reproductions however they like.]
Libraries as End-User Representatives
Why is this bad? Well, there are a couple of immediate reasons. Libraries have a mission of providing accurate information. And libraries increasingly see themselves as having a mission of educating users to know their fair use (and other) rights under copyright, and recognize when publishers are trying to mislead them into not taking advantage of their rights. (I think this is a good mission). Misleading practices with special collections run at cross-purposes to these missions, detracting from the efficacy of programs meant to carry them out.
But beyond that, I think there’s a larger issue relating to libraries core missions and justifications to exist in the internet age.
There are lots of information resources available on the internet these days; it’s not like the 20th century when libraries were the biggest information game in town. But most of these information content and service providers have their own business interests, which sometimes align with but may at other times contradict the interest of information consumers — our users and patrons.
Amazon is a great discovery service, but Amazon’s goal is to get you to buy books from them or their partners, and they very intentionally maximize the ability of their website to do that. Google’s various offerings are great discovery services, but Google’s goal is to maximize ad-viewers it can sell it to advertisers, and also discourage people from using competing services.
What other info service and content providers are there acting with no motive but to serve the interests of ordinary person information consumers? <strikeout>Not much of anybody but</strikeout>Well, there’s wikipedia and other community source projects, maybe. But as far as institutions with budgets go, libraries (public, governmental, and academic) and librarians are pretty much what there is.
This is a really important role, especially in our information overload culture, right? The recent flap about the Elsevier fake journal emphasized that even more. I think it’s our historic mission — and as a guiding vision is part of our justification to funders about why we still need libraries in the age of google, amazon, etc. (Of course, you’ve got to actually follow through and do a good job with it too, a good marketting concept isn’t sufficient).
For instance, every library should have a “copyright librarian”, as some academic libraries now do, charged with educating the users about their rights and responsibilities, and helping them use their rights to get the most from the information landscape. (In the academic setting, users roles include both as authors (where they may need help standing up to giant publishers with their own interests) as well as information users/consumers).
I don’t really believe in ‘objective’ presentations, every person and institution has biases and a viewpoint. But that’s why it’s especially important to have an information institution representing the interests of users that does not have a business interest in anything but representing the interests of users.
But it would help if we didn’t have a left hand working at cross-purposes to our right. Special collections are the one place where libraries do have a business interest in something other than end-user rights, an interest in fact in trying to hoodwink information consumers into not realizing all the rights they’ve got. This is a problem. We must resist the urges that interest leads to. I realize this is tough, special collections have an established revenue model built on selling something they don’t have the right to sell in the first place. Not easy to change that. But, well, libraries in the 21st century are faced with all sorts of tough changes to our business models, that’s where we live.