Category Archives: Public Domain

Losing our focus

Today the Supreme Court issued a decision in the case of Golan v. Holder which is a significant defeat, I think, for the public domain in the United States.  Reading the opinion has made me wonder if we have really strayed from our fundamental commitments about intellectual property.

The case involved the complex and technical issue of restored copyrights in foreign works – works that were originally created and published abroad.  As part of the U.S.’s decision to join the Berne Convention and other international treaties on intellectual property, Congress enacted an amendment to the Copyright Act, now found in section 104A, that restored copyright in foreign works that had risen into the public domain in the U.S. but were still protected in their countries of origin.  The effect was to remove works from the public domain after they had already lawfully become the property of every U.S. citizen.  Several groups, including musicians, publishers and others who had relied on the ability to freely exploit these public domain works, brought a lawsuit to challenge the constitutionality of this unprecedented alteration in the terms of the copyright bargain.

Those groups lost today.  Six Justice of the Court found that the “Uruguay Round Agreements Act,” which enacted this restoration of copyrights, neither exceeded Congressional authority under the copyright and patent clause of the Constitution nor created a conflict with the guarantee of free expression found in the First Amendment.  The full decision can be found here, and there is a brief report from the Chronicle of Higher Education as well.  For me, several recent readings and discussions provided a context as I read the decision.

Last night my colleague Will Cross and I were teaching a class session on copyright for library students.  Will discussed (among other things) two aspects or principles of copyright decision making that seem relevant to today’s decision.  First was the idea that the federal courts tend to show great deference to Congress in the area of copyright.  That deference is very evident in today’s majority opinion: “This Court has no warrant to reject Congress’ rational judgment that exemplary adherence to Berne would serve the objectives of the Copyright Clause.”

The other principle Will discussed was the incentive purpose that is given as the reason, in the Constitution, for allowing Congress to enact intellectual property laws.  This purpose is pretty clearly rejected by the majority, when Justice Ginsberg writes that “Nothing in the text or history of the Copyright Clause, moreover, confines the ‘Progress of Science’ exclusively to ‘incentives for creation.’”  It is hard to see how else that clause can be read, and Justice Breyer, in his dissent, provides a compelling account of why the U.S. enacted copyright in the first place, and why it is supposed to be limited.  He goes on to note that “The statute before us, however, does not encourage anyone to produce a single new work.”

It seems clear to me, as it does to Justice Breyer, that the wording of the Constitution’s Copyright Clause was to restrain Congress and direct that laws serve a specific purpose.  The majority of the current Court, however, does not see it that way.  We really have opposing visions of copyright law at work here, and the deference to any Congressional enactment, no matter how one-sided and counter-productive to new creativity, has made the Constitutional language increasingly ineffective.  It is one of those situations where we must hope that, over time, the persuasiveness of the dissent will eventually move it to be the majority view.

I recently read an article from 1890 on “The Evolution of Copyright” by Brander Matthews.  It was written just as the Berne Convention was being formed, and its intent was to commend the new international organization to U.S. lawmakers.  Matthews is clear about how much the Berne approach, modeled on the French “natural rights” view of copyright as it is, differs from the approach taken in England and the U.S.  Clearly he hopes the U.S will change course.  For nearly a hundred years that did not happen, but perhaps now we are seeing, unfortunately in my view, the steady erosion of the instrumentalist view of copyright that has prevailed in the U.S. for some time, and is enshrined in our Constitution, in favor of a natural rights approach that favors those who already own rights even when that favoritism disadvantages those who would create new works.

To slightly change focus, however, I want to end with one note of optimism.  The past couple of weeks has seen, in my opinion, a remarkable awakening of public interest in copyright and access issues, sparked by a couple of unfortunate pieces of legislation.  There has been a lead article about open science in the New York Times, and the 24 hour shut down of Wikipedia in protest over one of these bills – the Stop Online Piracy Act — has made digital copyright a topic of national discussion.  The web site PopVox has set up a central site for comments and advocacy against the other bill, called the Research Works Act and designed to undermine efforts toward public access for publicly-funded research.  With all this attention, it is still possible to hope that public pressure, and especially concern over the functioning of the Internet, will begin to turn our national focus back toward that instrumental and incentive-based view of copyright.

The "traditional contours" of copyright

The Supreme Court on Monday granted certiorari , which is the technical language for agreeing to hear a case, in Golan v. Holder, a copyright case with potentially significant implications for the public domain in the U.S.  I wrote about this case back in 2009, when it was first decided by a federal District Court in Colorado.  The decision I approved of at that time was subsequently reversed by the 10th Circuit Court of Appeals, and now the Supreme Court has agreed to decided the issue.

This post from the Patently O blog reports on the grant of “cert” and does a pretty good job of explaining the issue.  Basically the problem is that a law passed to reconcile U.S. copyright law with the international treaties that we agreed to in 1988 and after had the effect of removing some works from the public domain.  This had virtually never happened before; until the Uruguay Round Agreements Act (URAA) of 1994, things that were in the public domain stayed there, and users could safely depend on their availability for use and reuse.  For a subset of materials, however, the URAA changed the rules pretty dramatically and, according to the petitioners, in a way that conflicts with the basic protection of free speech found in the US Constitution.  The briefs for the case, including the amicus brief filed by the Stanford Fair Use Center and the brief in opposition to cert written by the Solicitor General’s office back when Elaine Kagan was SG (which explains why she took no part in the cert decision) can be found here.

The PatentlyO post compares this case to the earlier one in which the Supreme Court decided that the 20 year extension of copyright’s term in the US was constitutional.  I think the relationship between these two cases needs to be explicated a bit.  The case about the copyright term, Eldred v. Ashcroft, was decided, at least in part, on the grounds that the Copyright Term Extension Act did not alter “the traditional contours” of copyright.  When the courts face a challenge to a law based on Constitutional grounds, one of the major decisions they make is what “level of scrutiny” to apply to that law.  For example, a law that tried to regulate speech based on its content — forbidding expressions of support for the Tea Party, for example — would get the strictest scrutiny.  No law has ever survived this kind of analysis in the Supreme Court.  In Eldred, the Court decided that copyright law per se was not in conflict with free speech principles and so an extension of its term by a finite number of years would be evaluated on the basis of an ordinary level of scrutiny.  The Court said, however, that it would apply much more rigor if it were assessing a law that altered the “traditional contours” of copyright.

In the URAA, plaintiffs believe they have found such a law, since re-protecting works that had previously been in the public domain seems like a dramatic break with the past for US copyright law.  So this case relies on the Eldred decision precisely because the plaintiffs believe that it presents the situation the Court worried about, but did not find, in Eldred.  Where the CTEA was found constitutional in Eldred, the plaintiffs hope the Court will apply the same standard to find the URAA unconstitutional in Golan.

The URAA basically said that if a foreign work had risen into the public domain in the US only because of its failure to comply with the formalities that the US used to impose for obtaining copyright protection — notice and registration — it would be restored to protection as long as it was still protected in its country of origin.  As a principle this sounds fair (if you accept that formalities should have been abolished), but in practice it has had some serious consequences for those who had been using those putative public domain works.  Lawrence Golan, for example, is a symphony conductor who has suddenly found that he must get permission to perform the works of Igor Stravinsky when, in the past, he did not have that added expense.  The Court is asked to decide whether this is such a radical change to U.S. copyright law that it conflicts with the First Amendment.

One of the best resources I know of to understand the difficulties that these “restored” copyrights can create is this article by Peter Hirtle of Cornell University, which shows how difficult it can be to determine for sure whether a work really is in the public domain in the US because of the possibility of restoration.  Often, potential users are simply unable to find the full information they would need to decide for sure if they can use or reuse a specific work.  Presumably the Supreme Court will tell us, sometime next year, whether this uncertainty has changed the copyright game so radically that it now threatens our constitutional commitment to free speech.

Curb your enthusiasm

Happy New Year to all!

Just before and after the first of the new year, I saw a flurry of e-mails and blog posts celebrating this year’s Public Domain Day.  January 1 is the day on which all the material whose copyright expired during the previous year officially rises into the public domain and becomes free for all to use and transform into new works without the need to ask anyone’s permission or consider copyright exceptions.

Unfortunately, I have seen a few messages that overreact to Public Domain Day with claims, for example, that all of the works of F. Scott Fitzgerald (who died seventy years ago, in 1940) are in the public domain.  If our copyright law was simpler and more oriented toward helping users know what is what, that might be the case.  But it is not; our law has developed into a complex web of provisions that shows no concern at all for clear and understandable rules.

The basic situation is that only unpublished works are entering the public domain in the United States right now.  No published works will become public domain in the US through the expiration of copyright until 2019 at the earliest (assuming the law does not change on this point between now and then).

This severe restraint on the benefits that Public Domain Day ought to bestow on us are nicely explained by Duke’s Center for the Study of the Public Domain on this website.

Let’s look for a minute at F. Scott.  Because he died in December of 1940, his unpublished works do enter the public domain in the United States as of 1/1/11.  His published works, however, are another story.  If a Fitzgerald work was published between 1920 and 1922, as This Side of Paradise was, for example, it is in the public domain.  But any works published in 1923 0r later, such as The Great Gatsby, are still protected.  After 1922 (and prior to 1963), a work that was published with copyright notice  and the copyright in which was renewed is given a term of 95 years from publication (the initial 28 year term plus a renewal term, after the Sonny Bono Copyright Term Extension Act, of 67 years, ).  Thus published works from this time period are protected until at least 2019; — 1923 plus 95 years equals 2018, so works published that year will rise into the public domain on 1/1/2019.  The author’s date of death does not make any difference for these works.

This distinction seems designed to confuse librarians and other users of works.  An archive of Fitzgerald manuscripts, for example, could digitize and make available those items that were never published, or that were published earlier in F. Scott’s career (like Tales of the Jazz Age).  But a manuscript of Gatsby or Tender is the Night is still subject to protection.

If this isn’t confusing enough, the situation is not merely different, but reversed, in some countries.  As this blog post explains, Canadian copyright law has a shorter term — life of the author plus fifty years — but protects unpublished works differently.  In Canada, the published works of an author who died in 1960 are now PD, while unpublished works by the same author are protected until 2049!

Determining whether or not a work is in the public domain is an unfortunately complex business.  Like so much in copyright law, that complexity itself is a discouragement to many worthwhile efforts to make the products of our culture available to future generations.

Fashioning innovation

I do not usually use this space simply to offer links to other resources without adding my own comments, but this 16 minute video by Johanna Blakely of the Norman Lear Center at USC — “Lessons from fashion’s free culture” —  is so good there is very little I can add.

Dr. Blakely discusses, in a smart and engaging way, the role that intellectual property protections play in providing incentives for creativity and innovation.  Her primary example is the fashion industry, where the lack of strong IP rights not only does not hamper creativity but seems, in Blakeley’s argument, actually to support innovation and rapid growth.  Her chart illustrating the relative income generated by creativity industries that “enjoy” strong IP protection versus those that don’t may be an oversimplification, but it does provide a strong refutation to the argument that IP protection is necessary for creative industries to thrive and for innovators to pursue their work.

The video is also an excellent lesson in how to do a fun, engaging and informative presentation.  I offer it with envy for Dr. Blakely’s skill and confidence that it will be a valuable way for readers to spend 16 minutes.  I am just disappointed that I don’t get all of the contemporary cultural references.

This one is really odd

Mark Twain once wrote in his Notebooks that “Only one thing is impossible for God: to find any sense in any copyright law on the planet.”  It has been a full century since Twain’s death in 1910 and he is just now presenting us with good evidence for the truth of his comment.

The gist of the story, which is recounted here and analyzed from an Australian point of view, is that Twain left an Autobiography when he died, along with instructions that it not be published until he had been dead for 100 years.  Twain’s purpose apparently was to avoid giving offense or committing defamation. That long-awaited publication has now taken place, and the question that interests me is whether the Autobiography has any copyright protection.

Under current US law, the copyright in an unpublished work lasts for the life of the author plus 70 years.  That term of protection for Twain’s Autobiography would have expired in 1980.  For a currently published work the term of protection is the same, so it is logically impossible to apply that term starting from the time of publication in 2010.

Perhaps we should look at Twain’s expectations in regard to copyright.  At the time he died the 1909 Copyright Act had just come into force, with a 28 year term of protection that was renewable for an additional 28 years.  This protection was dependent on publication with notice, so perhaps Twain thought that his work would be protected for 56 years after its 2010 publication.  But it is unlikely that he could have believed, critically aware of copyright as he was, that the law would not change in that long period of time.  It is even more unlikely that the thought of a copyright beginning in the 21st century and lasting 56 years was any motivating factor in Twain’s decision to write his memoirs.  So protecting his expectations, whatever they were, would not serve the fundamental purpose of granting the copyright monopoly, which is to provide an incentive for authorship.

If we accept, for the moment, an analogy between copyright and real property, perhaps we should recognize that the copyright in Twain’s Autobiography belongs in the category of intentionally abandoned property, based on his deliberate decision to suppress it past any reasonable term of protection.

I have to admit that I rather hope that someone will challenge the inevitable claim to a copyright that the Mark Twain Foundation will make in this work.  I would love to see how a court would sort out these issues.

In the meanwhile, however, I think there is a point to made here about the folly of believing that there is such a thing as a “limited” monopoly, which the Constitution requires that copyright should be.  Monopolies serve special interests by allowing prices to rise well beyond the level they would reach in a competitive market.  They are so beneficial to those interests that any boundaries imposed on them will always be pushed, tested and expanded whenever they can be.  The Mark Twain Foundation has a much stronger reason for asserting a copyright claim, even a baseless one, than any other party has in spending the money necessary to challenge it.  The result will likely be a continuing monopoly over a work that rightly belongs to the public; an inevitable but unintended consequence of granting a monopoly and then trying to control it.

About the copyright monopoly Lord Macauley said in 1842 “It is good that authors should be remunerated; and the least exceptionable way of remunerating them is by a monopoly.  Yet monopoly is an evil.  For the sake of the good we must submit to the evil but the evil ought not to last a day longer than is necessary for the purpose of securing the good.”  With the case of Twain’s Autobiography we have a clear situation where the evil Lord Macauley decried has the upper hand and is likely to persist well past any rational justification for its existence.

So who gets the money?

In my only previous foray into the issues of protection for traditional knowledge, I was quite critical of the legal regime used in Ghana to claim control and profit over the knowledge creations of indigenous peoples.  Even while criticizing the law, however, I admitted that there was a great deal of abuse that needed to be remedied, I just questioned how a remedy could be fashioned.  Now I have an opportunity to illustrate that abuse and also give concrete form to my doubts.

This short blog post, with links to other stories, tells how the Colgate company has successfully patented, in the U.S., an herbal toothpaste recipe that apparently has been used for centuries by natives of India.  Needless to say, the Indian government is not happy, and the case seems to illustrate the potential abuse of traditional knowledge that the WIPO and other groups would like to remedy.

One question, of course, is whether a patent should be available at all for this product.  This is not just an abuse of traditional knowledge but also, from a different perspective, perhaps, an abuse of the public domain.  In the U.S., as in most countries, patents are granted only for inventions deemed “novel.”  If this mixture of common herbs has been used in India for centuries, where is the novelty?  Colgate simply wants to sell to Indians something they have been making for themselves for a long time.

But this raises the second question I want to consider.  Is it possible that allowing a patent for this product will actually have a social benefit by making the toothpaste more widely available to those who want to use it?  Many Indians probably cannot be bothered to make the paste but would be willing to pay a reasonable price for a pre-made version.  If there would, in fact, be a social benefit, perhaps the patent should be allowed.  This seems to be the position of the Indian government; their object seems to be to letting an American company make the profit more than it is to the idea of profit itself.

So if a patent is to be allowed, the next step would be to find a way to protect the legitimate interests of the inventors of this traditional formula.  That is where the problems really come up, in deciding what those legitimate interests are and whose they are.

For example, are there some groups in India who should be able simply to stop the commercial exploitation of this product?  If we determine that there is social value to the commercialization, then we face a situation where protection of traditional knowledge might cause social harm.  We might opt to make such a decision out of respect for native peoples, but it is a calculus that needs careful consideration.

If we allow the commercialization, equity suggests that profits should be shared with the native peoples who developed the product.  But just who are those peoples?  Who stands in the position of representing Indians who have made this dental powder for “perhaps 1000s of years?”  The Ghanaian solution is to let the government stand in the place of the indigenous creators of traditional knowledge, and in this patent dispute it sounds like the Indian government would like to follow the same path.  To me this question of “cui bono” is the most important and problematic aspect of the debate about protecting traditional knowledge.  If we could find a way — and it will be different in nearly every situation — to actually let the indigenous creators garner some benefit from their traditional knowledge, then I am all for doing so.  But letting contemporary governments profit from knowledge passed down for centuries amongst people who occupied the same territory that that government now rules — even if, as may be the case, the descendants of those peoples do not, in the current situation, feel well represented by that government — is a very imperfect solution indeed.

Hot news, cold idea

At a meeting about public access to federally-funded research that I attended earlier in the year, a publisher strenuously asserted that it was not the role of the government to drive a business out of the market.  He was right of course, but so were a group of us who replied that neither was it the role of the government to prop up a business that otherwise could not survive.

I was reminded of this exchange when I looked at the “Discussion Draft” from the Federal Trade Commission on “support[ing] the reinvention of journalism.”  Unfortunately, the policy recommendations floated in this document have very little to do with reinventing journalism, but a lot to do with propping up the traditional business model of newspapers.  Most of the ideas put forward here, and they come not directly from the FTC but from those the FTC has discussed the issue with (a telling process of selection in itself), are about how to keep that status quo in news publishing from collapsing under its own weight and under the pressure created by new opportunities for disseminating news offered by the Internet.  Rather than looking at how journalism must change, the FTC has offered a set of proposals for how to protect the current set of badly mismanaged news organizations from the Internet.

There are lots of critiques of these proposals, including ones found here and here.  My favorite comment, from Kent Anderson of the “Scholarly Kitchen” blog, notes that the FTC does not “acknowledge how newspapers and other traditional media exploit free information tools like Facebook and Twitter to lazily learn about news through their desktops.”  So, in the great tradition of “what’s mine is mine and what’s yours is also mine,” newspapers seek to prevent others from disseminating news on the Internet while wanting to benefit from that dissemination whenever it can save them money.

Google released an extensive, and deadly accurate, critique of the FTC proposals, which can be found here.

What concerns me most about the FTC proposals and the ideas coming out of the news industry is that copyright law need to be revised to provide news organizations with additional protection.  Sometimes they suggest that fair use should be amended to exclude the possibility of a fair use of news coverage.  Worse, they often suggest, including to the FTC, a statutory version of the so-called “Hot News” doctrine.

The “Hot News” doctrine provided some protection for organizations that first reported a news event from those who would re-use the reportage, sometimes even exploiting technology to “scoop” the original reporters.  What technology, specifically?  The telegraph.  You see, the hot news doctrine dates from a 1918 Supreme Court case and has had very little traction in the modern world.  In that case, International News Service v. Associated Press, the Supreme Court upheld a injunction restraining INS from “appropriating news taken from [AP] bulletins… for the purpose of selling it to defendants clients.”  In spite of a recent attempt by AP to revive the doctrine, I want to suggest that there are at least four good reasons that “hot news” should have no place in copyright law.

First, we should recognize that the original decision by the Supreme Court was not a copyright ruling, but involved unfair trade practices.  These state law protections apply only between business competitors and would not prohibit non-profit distribution of the news by “citizen journalists” and those who post news stories to their Facebook sites.  Incorporating hot news into copyright would have the potential to do just that, expanding the protection for news way beyond what the Supreme Court authorize almost a century ago.

Second, times have changed a lot since 1918.  In the INS v. AP decision, the Supreme Court spilled a lot of ink discussing the economics of news gathering in order to justify the limited protection they were upholding.  Those economics have changed so drastically, as Anderson’s comment illustrates, that the foundations of the hot news doctrine have really been undermined.

Third, further erosion of those foundations came from the Supreme Court in 1991, when the ruled, in Feist Publications v. Rural Telephone Service, that no copyright could be obtained merely through “sweat of the brow.”  If the hot news doctrine were imported from unfair competition law into copyright, we would be importing a sweat of the brow doctrine that is at odds with the structure and underlying principles of the Copyright Act.

Finally, it is simply contrary to fundamental principles of democracy for the law to constrain ordinary citizens from talking to one another about the news of the day.  News is a unique category of information because of its importance to a democratic society.  While the opportunities to exchange information and ideas about the news that exist today can be used for good or for ill, it is not the place of the government to constrain those opportunities, even in the name of propping up newspapers’ foundering business models.

More protection for military faculty, or less?

Section 105 of the U.S. Copyright Law tells us that there can be no copyright in works of the federal government.  Almost uniquely among the nations of the world, the US government does not get to exclude others (including taxpayers) from using works created by government employees as part of their employment.  There are numerous studies about the benefits of this lack of protection; one of the most interesting are these comments by Professor James Boyle in his book The Public Domain about weather data gathered by the US government.  As Boyle points out, the social value of this freely-available data is much greater than any value that might be gained through copyright protection.

One group whose exclusion from copyright protection might strike us as unfair, however, is the faculty of the military academies (West Point, Annapolis, etc.) and government run War Colleges.  While their colleagues at other institutions hold copyright in their scholarly works (unless an institution claims work made for hire), scholars at these schools do not.  When I first read about a new bill in Congress, H.R. 5704, I innocently believed that it was an attempt to remedy that disparity, and my initial reaction was ambivalence.

I say ambivalence because my distress that material would be removed from the public domain by this legislation was balanced by a concern for fair treatment of this group of academics.  Our public domain in the US has been seriously cramped and diminished by copyright legislation over the past twenty years, and removing works that are supported by taxpayers from the realm of public accessibility just doesn’t seem right.  But neither does it seem right that this one group of scholars be treated differently than other university faculty members.  So I was prepared to read the legislation with an open mind.

My mood turned from ambivalence to horror when I read the legislation.  Inside the Trojan horse of faculty rights is hidden yet another grab for more rights and more profits by the publishing industry.  Not only will this bill not benefit military faculty members, it will put them in a far worse position than other academic authors.

The problem with this bill, as with much legislation, is in the fine print.  What seems like a marginal idea when you read the title of the bill is revealed as really lousy when you dig into the text.  Here, the language of the legislation says that faculty at the covered institutions can secure copyright protection “only for the purpose of publication by a scholarly press or journal for which such a copyright is normally a requirement.”  And then it adds the kicker — “Upon acceptance for publication of a work for which copyright protection exists by reason of subsection (a), the person holding the copyright shall transfer the copyright to the owner or publisher of the medium in which the work will be published.”

This bill is not about protecting military academy faculty.  It is about allowing publishers to garner yet more profits off of work supported by US taxpayers.  And it really mistreats the academic authors by requiring them to transfer copyright to publishers; the word “shall” in the sentence quoted above makes the transfer mandatory rather than voluntary.  If the point had merely been to give faculty authors the same flexibility enjoyed by other scholarly authors, the work “may” would have been used.  But the publishers who clearly drafted this bill don’t want to have to negotiate with these authors; they want a legal mandate to give them rights at the expense of taxpayers and the public domain.

Scholarly authors are free to negotiate the terms of publication.  They do not have to transfer copyright, or they can make that transfer contingent on the retention of certain rights.  In fact, the retention of various kinds of rights is extremely common today.  But if this bill were passed, military faculty would not have that option; they would get copyright only for the purpose of publication and they would be required to transfer that copyright.  No negotiation, no compensation or quid pro quo, just a windfall for publishers.

As this blog post about H.R. 5704 points out, this bill attempts to solve a problem that does not exist.  Publishers have known for 200 years that there is no copyright in government work.  Most publication agreements account for this by allowing authors to indicate that they are government employees and therefore have no copyright to transfer.  But this bill, with its forced transfer of rights, would give the publishers a little more leverage over scholarship by giving them, and only them, copyright control over works previously in the public domain.  It would not benefit the public or the authors of the work.  The latter, indeed, would be compelled to work for publishers for free while being paid by taxpayers; they would be in a slightly worse position vis-a-vis publishers than are all other scholarly authors.

Apparently an earlier version of this bill — which for the sake of honesty should be titled “a tax on the public and on military faculty for the benefit of private publishing firms” —  died in committee a few years ago.  Let’s hope for a similar fate this time around.

Hospitals in a Plague and the Unkindest Cut

By Will Cross

If you follow libraries and scholarly communications you’ve probably seen this phrase pop up online recently: “cutting libraries in a recession is like cutting hospitals in a plague.”  Eleanor Crumblehulme’s pithy tweet has gone viral and launched a minor publicity campaign that is making the rounds online and in libraries.  The comparison is timely, of course, because libraries across the nation are experiencing historical cuts in funding, or even being closed down due to the harsh economic conditions.

It has also caught on because it expresses a central truth: in times of economic crisis the library takes on an increasingly vital role supporting individuals and society.  Libraries always serve as what Andrew Carnegie called the “cradle of democracy” by providing free access to information and entertainment as well as social spaces for public groups to gather, discuss ideas, and plan activities.  Libraries also serve as the front lines of support for job-seekers by offering resources for job-hunting and instruction on technical skills and professional development.  All of these needs are felt especially deeply in bad economic times.

Beyond their role as “the people’s university” libraries also play a second-level role in bad economic times as drivers of innovation as recently discussed in a series of articles in Harvard magazine.  By storing, cataloging and providing access, and help with searching, libraries enable the innovations in research and technology that drive the economy.  In this sense cutting libraries could also be seen as akin to cutting laboratories seeking a cure to the plague.

Most interesting to me, however, is the way that libraries themselves are reacting to the pressures of the current economic crisis by reexamining their own policies in light of changed circumstances.  This can be seen starkly in the University of California system where two major cases have arisen that may alter the existing landscape of copyright and licensing in higher education.

The first is the well-publicized decision by UCLA to continue to stream videos despite threats from content owners.  The second is the UC system’s decision this week to boycott the publisher Nature’s journals in response to a proposed 400% increase in subscription costs, a move that UC professors so far seem to be supporting.  In each case these institutions rejected prevailing norms of copyright and licensing, based at least in part on the significant financial cost the established system would have placed on a state budget that is already in crisis.

One of the greatest impediments to changing scholarly communication practices is the inherent conservatism and risk-averse nature of large institutions.  Where the law is unclear or a journal is extremely popular libraries often feel they have no choice but to grit their teeth and pay fees that are unreasonable or may not be required by the law.  But tough economic times may change the calculus, pushing libraries towards new practices that might otherwise have seemed too risky.

Particularly when budgets are already stretched thin and universities are pressured by the government to use student fees to subsidize content-owners more libraries may follow the UC system in reopening the discussion about what fees are reasonable and how aggressively to exercise their rights as nonprofit, educational institutions protected by specific exceptions in the copyright law.

Following up on Kevin’s discussion of “opportunity” in last week’s post, it appears that these economic pressures may create a different sort of opportunity for libraries to escape economic systems and legal assumptions that limit their ability to lift up the disadvantaged and drive innovation.  As in Shakespeare’s Julius Caesar, this “unkindest cut” may upset the system but may also liberate us from a system that is already overreaching its proper powers.

Will Cross, M.A., J.D., is an intern in the Scholarly Communications Office at Duke.  He also serves as the Digital Copyright Specialist for the UNC University Libraries and is currently pursuing a Master of Science in Library Science at UNC’s School of Information and Library Science.

Literary borrowing

Pure chance recently put a copy of the “Sketch book” by Washington Irving into my hands, and I have been enjoying rereading classic stories and discovering ones that were previously unfamiliar.  In the latter category is “The Art of Book Making,” in which Irving describes a desultory trip to the British Museum and his fascination with watching putative authors as they devour earlier works in order to create their own.  I have commented before on the need for authors and other creators to have useful access to previous works in order to create new knowledge and literature.  Isaac Newton’s famous phrase about “standing on the shoulders of giants” often springs to my lips.  But I could never match the eloquence and humor of Irving’s description of, and justification for, literary borrowing — especially the image of mushrooms springing from a rotting tree trunk — so I will, for the remainder of this post, simply allow him to speak:

After all, thought I, may not this pilfering disposition be implanted in authors for wise purposes; may it not be the way in which Providence has taken care that the seeds of knowledge and wisdom shall be preserved from age to age, in spite of the inevitable decay of the works in which they were first produced? We see that nature has wisely, though whimsically, provided for the conveyance of seeds from clime to clime, in the maws of certain birds; so that animals, which, in themselves, are little better than carrion, and apparently the lawless plunderers of the orchard and the cornfield, are, in fact, nature’s carriers to disperse and perpetuate her blessings. In like manner, the beauties and fine thoughts of ancient and obsolete authors are caught up by these flights of predatory writers, and cast forth again to flourish and bear fruit in a remote and distant tract of time. Many of their works, also, undergo a kind of metempsychosis, and spring up under new forms. What was formerly a ponderous history revives in the shape of a romance—an old legend changes into a modern play—and a sober philosophical treatise furnishes the body for a whole series of bouncing and sparkling essays. Thus it is in the clearing of our American woodlands; where we burn down a forest of stately pines, a progeny of dwarf oaks start up in their place; and we never see the prostrate trunk of a tree mouldering into soil, but it gives birth to a whole tribe of fungi.

Let us not, then, lament over the decay and oblivion into which ancient writers descend; they do but submit to the great law of nature, which declares that all sublunary shapes of matter shall be limited in their duration, but which decrees, also, that their elements shall never perish. Generation after generation, both in animal and vegetable life, passes away, but the vital principle is transmitted to posterity, and the species continue to flourish. Thus, also, do authors beget authors, and having produced a numerous progeny, in a good old age they sleep with their fathers, that is to say, with the authors who preceded them—and from whom they had stolen.