December 2001
Recent reports that Patricia Schroeder, president of the Association of American Publishers, referred to librarians as “the enemy” came as quite a shock to many librarians. Maybe I am jaded, but I found it neither shocking nor even surprising. The copyright debate has become increasingly acrimonious over recent years, and it is likely to continue to be so.
Librarians (on one side) and publishers and other producers of copyrighted works (on the other side) have very different core values. The differences often play out in discussions about copyright. These conflicting core values make it likely that disputes will continue to occur and that each group will view the other with suspicion, refusing to acknowledge that the other’s position might even have some merit.[1] This certainly is unfortunate since librarians and publishers share an interest in making works available to the public. Moreover, the success of each group is actually quite dependent on the other. These values conflicts likely are responsible of the increasing acrimony in the copyright debate, especially over digital works.
It is impossible not to over generalize in any discussion of values, and I do recognize that there are differences among librarians, but much of the difference is based on the type of library in which the person works. There are also significant differences between types of publishers and producers. For example, there are nonprofit and association publishers as well as university presses that share a number of interests with commercial publishers, but all of their interests are not the same. With this recognition of differences among publishers, the values being ascribed to them as a group relate primarily to commercial publishers. The extent to which noncommercial publishers share these values varies.
Publishers and producers value being paid for the copyrighted works they produce and distribute. When libraries reproduce copies of their works and give them away to users, this conflicts with a core value of publishers – compensation for their products. The law recognizes that some reproduction by libraries is exempted or is a fair use, however. Today, instead of referring to such activity as infringement, increasingly publishers call it “theft” or “piracy,” which leaves little room for concepts such as fair use that relate to copyright infringement. The ability to reproduce perfect copies from a digital work exacerbates publisher concern about reproduction of their works.
Another core value of copyright holders is the ability to control their works in the marketplace. Certainly, in the digital world detecting infringement maybe more difficult. Therefore, publishers and others are turning to technological means to protect their works rather than relying on traditional copyright. Publishers and producers also value the integrity of their works and seek to ensure that the original work is not altered to reflect negatively on the producer. Publishers value licensing as a way to control their works but also see license fees as a valuable income stream. They also value the ability to market their works broadly and to explore new markets and new formats. Finally, a core value for publishers is that fair use is only a defense to copyright infringement and not a users’ right.
Librarians likewise have deeply held core values. One overarching value may be described as the “public library ethos” and even corporate librarians often share this value since librarian education and training is based on this ethos. A part of this is the belief that public libraries are educational institutions. While this may be true in the broad sense, under the Copyright Act, public libraries are nonprofit libraries and not nonprofit educational institutions. The second core value may be summed up as “information to the people.” Public libraries are a shared intellectual resource maintained at public expense and copyrighted works generally should be made available to users at no charge to the user. The first sale doctrine[2] enables libraries to lend materials free of charge or even for a fee. Librarians support the rights of users of copyrighted materials which includes the right to read, the right of access to ideas and the right to browse. Librarians view themselves as advocates for users in the copyright debates.
The existence of a robust public domain is another critically important core value for libraries. Finally, librarians believe that fair use is a right and not simply a defense to copyright infringement. The Copyright Act actually supports this view in § 108(f)(4) which states that ….“nothing shall affect the right of fair use….” (emphasis added).
Society itself actually supports some of the core values of both groups. The most important core value for society in the copyright area probably is the value of an educated populace, and libraries play a vital role in creating an educated citizenry through both literacy and reading programs, but also by making information available to users. Society supports the value of public libraries and public access to information. On the other hand, society values entrepreneurship and respects the ability to create a product and market it to the public. At the same time, the society values the existence of the public domain since those works provide much of the intellectual commons that we all share as citizens. Free public access and commercialization of information certainly are opposing values.
The values conflict between librarians and publishers is evident. The core values that each group holds perhaps help explain some of the statements they make in the copyright debates. The conflict also demonstrates why each group sometimes overreacts to statements of the other group – those statements strike at the heart of a deeply held value. In addition to this conflict, often librarians and indeed even publishers do not understand the copyright law. Both are guilty of misstating the law and overstatements about the horrors that will ensue in the digital world if their own core-value laden position is not recognized and given primacy.
Where does this lead? This very values conflict often shapes the debate about the proper role of fair use guidelines, whether the Act should be amended and whether the original balance the Act struck between producers of copyrighted works and users is correct. Further, it affects which cases are cited to support given positions while other cases that take an opposite or even slightly different position are ignored.
It is too bad that discussions between librarians and copyright holders have become marked with animosity and mutual distrust. By working together often agreements can be reached, but the very nature of negotiation is compromise, which means that neither side will get all that it wants. Can we live with that? Either we will live with compromise or we will continue to battle before Congress, the Copyright Office and the courts. Copyright holders will increasingly turn to technological controls and restrictive licensing provisions to control access to and use of their works. Librarians will chafe at the restrictions their users have to endure and at the complaints they receive from their users because of these restrictions. And both groups will continue to view the other as untrustworthy, at a minimum, or, at worst, as enemies.
[1] The material for this column came from an article I wrote which was published late this spring (despite the 2000 date), Values Conflict in the Digital Environment: Librarians Versus Copyright Holders, 24 Columbia-VLA J.L. & Arts 115 (2000).
[2] See Copyright Corner, Information Outlook, May, 2001.