I used to be a regular participant in two very different online discussion groups. One is LIBLICENSE-L (a group established for the discussion of issues surrounding content licensing in libraries, but which has since drifted decisively into broader topics related to scholarly communication). The other is MLA-L, the online discussion list of the Music Library Association. On LIBLICENSE-L, I often found myself defending what seemed to me the reasonable rights and protections that the law extends to copyright holders — whereas on MLA-L, I regularly found myself arguing with musicians for the limitation of those rights, and especially in defense of fair use principles. Sometimes, as I went back and forth between the two discussion lists, I felt like a house divided against itself, constantly twisting around to try and see the other side of every issue.
I felt something similar as I read a recent opinion piece by Jennifer Howard, one of the Chronicle of Higher Education‘s especially insightful reporters, on the topic of the Hathi Trust orphan works lawsuit. (Hathi’s side of the argument is presented here, and the plaintiffs’ is here.)
In her piece, Howard referred to “a plaintive note” she had received from an author, who is feeling a bit beaten-down by the current controversies over public access to in-copyright publications. The author wondered whether he is “little more than (a cog) in the vast content machine,” one whose role is simply to “do the work that fills digital collections and then watch while it’s served up in snippets to suit researchers’ grazing habits.”
Howard is sympathetic — as I am, and as I imagine most readers would be. She goes on to suggest certain very concrete concerns that might occur to a reasonable author who discovers “that Google or some other entity (even a nonprofit, preservation-minded, university-based one) has taken your book and made digital copies of it without asking you.” If you were such an author, she suggests,
You might wish somebody had asked you first. You might like some guarantees that digital versions of your book will not turn up in a torrent available for download on the Pirate Bay site, liberated by reformers who think the current intellectual-property system is too restrictive. You might ask whether an Aaron Swartz-style hacktivist will take control of your work away from you in the name of open access.
These are not silly concerns, nor do they necessarily arise solely from a desire to preserve revenue streams. (“Plenty of authors,” Howard correctly points out, “especially in the academic world, don’t expect to make a lot of money off their work.”)
However, I do believe that authors who feel this way probably need to come to terms with two important realities:
First: Within legal limits, it’s not up to you how people use your work. In an academic setting especially, it has always been the case that scholarly information products are “served up in snippets to suit researchers’ grazing habits.” I think that part of what makes it hard for authors to accept that reality now is the fact that for centuries, it was hidden by the fact that libraries had no option except to buy those snippets in the aggregated form of books and journal issues. In research libraries — which have long been the primary customers for most serious scholarly works — books are very often used as small databases, their contents searched and interrogated rather than read in any kind of linear, sustained way. During the print era, this fact was easy to ignore: we saw students sitting at tables with big piles of books and it really looked as if the books were being read. But this was rarely the case; in fact, the higher the pile of books, the less likely that any of them was really being read in any kind of sustained, linear way. Instead, each was most likely being culled for discrete chunks of relevant information. When books could only be interrogated by means of crude indexes, the interrogation was often inefficient and not terribly effective, but it was the way books tended to get used anyway. By no means am I saying that no one read these books from cover to cover — only that beginning-to-end reading was very much a minority use. Think of how many books you consulted in college while doing class assignments and research projects, and compare that to the number of those books that you read in their entirety. I think it’s safe to say that if the latter number isn’t a very small subset of the former, then you were a very unusual (and probably not terribly effective) college student.
When I hear my librarian colleagues express concern about a shift from print to e-books, one of the concerns often expressed is that e-books lend themselves to all kinds of uses that aren’t in harmony with the authors’ intent. But I think it’s time for all of us to let go of the idea that authors’ intentions matter that much. What matters is not how authors want or expect their books to be used; what matters is how readers want to use books. Authors (whether scholarly or not) need simply to come to terms with this, I think.
Of course, the law does reserve certain kinds of control for the creator of a copyrighted work, and that leads to my second point.
Second: It’s the law, not the copyright holder, that determines what uses can be made of a copyrighted work. Here the question is neither about what authors (or their assigns) want, nor about what readers want; the question is what each ought to have, and how the law should balance the competing “oughts” of copyright holders’ and users’ rights against each other in a volatile and rapidly changing information environment. Once an author (or composer, or artist) creates an original work and releases it into the public space, how much and what kinds of control can she reasonably expect to retain over it?
Most of us seem to agree that the general outlines of current copyright law are pretty reasonable: copyright holders get limited but real control over the copying, distribution, and performance of their work, along with an exclusive right to create derivative works, for a limited period of time. But in a rapidly-evolving information environment, the general outlines that served fairly well to govern use during the print era don’t seem to function so well anymore. Copyright terms get extended by law; fair use claims come under closer scrutiny; activists make grand gestures. Hence the lawsuits, and the vitriol, and the feelings of helplessness on the part of those whose labor (let’s remember) created these documents to begin with.
I’m offering tough talk to authors here, but writing as a library administrator, I think it’s also important for us on the demand side to remember that authors’ concerns aren’t only about money, and in many cases aren’t even primarily about money. I think Howard is absolutely right when she suggests that there’s a more elemental issue here: the question of whether or not one is allowed to have any say in what becomes of the products of one’s creative work. It’s entirely natural and understandable to want to have some say. On the one hand, the law provides for that by giving copyright holders (who are, in the first instance, authors) certain exclusive rights. On the other hand, authors don’t have anything like complete authority over what can be done once their works enter the world, nor should they.
Being a librarian, especially in a research environment, always means walking a tightrope between protecting the legitimate rights of authors and publishers from abuse on the part of readers (some of whose behavior is deliberate and predatory) on the one hand, and fighting for the legitimate rights of readers on the other. In my experience, it’s sometimes hard for librarians and activists to understand that copyright is about more than just publishers making money. And in my experience, it’s also sometimes hard for creators of scholarly products to understand that copyright doesn’t quite mean the same thing as “ownership.” I wish I had more confidence that the end result of all the current legal imbroglios will be greater clarity on these issues, but I suspect things are going to get muddier before they start getting clearer.