LIBRARIAN ACTIVITISM ON THE COPYRIGHT FRONT

August 2002

For the past few years librarians have been very active in the copyright arena. Activities have included efforts to influence legislation, filing friend of the court briefs in pending cases and generally representing the users of library services in copyright debates. Librarians and library organizations have spent countless hours working on behalf of library users everywhere. This important public service often goes unrecognized and unappreciated.

Many copyright experts believe that the balance that once existed in the copyright law has been skewed considerably toward copyright holders. The 1976 Copyright Act was a balanced statute that both guaranteed the rights of copyright holders and recognized the privilege of library users. Although some writers at the time began to fear that the balance was tilting toward the copyright owner, most agreed that the balance of interests reflected in the Act was the appropriate balance. Over the almost 25 years since the Act became effective, the statute has been amended many times. In the view of many librarians and library associations, some of these amendments have destroyed the previous balance found in the Act. These amendments negatively impact the rights of library users, and yet the users of libraries appear to remain unaware of the struggle undertaken for their sakes.

The amendments that cause the concern have been discussed in earlier columns: online service provider liability, anti-circumvention, fair use of digital works and term extension. Public statements by members of the publisher and producer communities alerted librarians to the problems that would be they would inevitably face over the next decade. These include statements that publishers wanted to eliminate interlibrary loan in the electronic environment, their desire to move to a pay-per-use system and increased publisher reliance on restrictive licensing agreements.

In response, individual librarians have drafted testimony, appeared before Congressional committees and educated themselves about copyright. Many have also worked to educate their users about copyright and the increasing problems it is causing for users of digital works. Library associations have worked together as never before to present Congressional testimony, appear before the Copyright Office at various hearings and have filed amicus (friend of the court) briefs in cases of interest to librarians, sometimes through the Digital Future Coalition (http://www.dfc.org/).

Even a partial list of these activities by library associations over the past three years is impressive. All of these activities have been discussed in earlier columns.

Congressional testimony:

1. Distance education

2. Database legislation

3. Online service provider liability

4. Term extension

Copyright Office testimony:

1. Section 104 hearings – fair use & first sale

2. Distance Education

3. Anti-circumvention

Amicus briefs filed:

1. Eldred v. Ashcroft

2. Napster v. A & M Records

3. New York Times v. Tasini

4. National Geographic Society v. Greenberg

5. Universal City Studios v. Remeirdes

6. Hyperlaw v. West Publishing

Do library users even know about the efforts made on their behalf much less appreciate them? Probably not. But, if individuals knew about these efforts, likely they would care very much. Thus, the task for librarians is to educate users about the threats to their fair use of digital works. A useful new website advocates for consumers’ fair use rights in the digital age: http://www.digitalconsumer.org/. This can be followed by a quick list of the rights of users highlighted in the library associations’ joint statement Fair Use in the Electronic Age: Serving the Public Interest http://www.arl.org/info/frn/copy/fairuse.html.

Libraries have been called creatures of the balance between copyright holders and the users of copyrighted works. It is through the first sale doctrine that libraries are able to lend their materials to users. Further, only in libraries are many works available to the public or even to specific groups of users. The goal of librarians who participate in efforts to restore balance to the copyright law is to ensure that users enjoy the same rights in the digital age as they enjoyed in the analog world. Congress and the courts have been largely unsympathetic to the plight of the users of copyrighted works to date, and thus librarian efforts must be redoubled. It will require continued diligence on the part of both individual librarians and of library associations to ensure that neither the Congress nor the courts overlook the needs and rights of library users.

It is critical that members of Special Libraries Association stay current about copyright law and legislative proposals that threaten to restrict even further the fair use of copyrighted works. When the Association calls for its members to contact their Congressional representatives, it is important to do so. The lobbies that represent copyright holders are large and well financed. Only in sheer numbers and in perseverance can the library world continue to ensure that materials are available to users on a basis that does not disadvantage the “have nots” in society. This we do in the service of the public.