Values Conflict in the Digital Environment:
Librarians Versus Copyright Holders

Laura N. Gasaway*

INTRODUCTION

            Librarians share many values with creators and publishers of copyrighted works, but their interests and values sometimes conflict.  Additionally, the core values of each group sometimes conflict with the goals of copyright law.  While these conflicts have existed for centuries, they are escalating in the rapidly expanding digital environment, and the debate between the two groups is becoming increasingly acrimonious.  Members of both groups often misunderstand copyright law and engage in overstatement, sometimes fairly gross overstatement.

            Librarians and content providers share a great many core values, and work symbiotically to promote common goals.  Without publishers and producers, librarians would have little to offer their users because there would be no works of literature, no reference works, no videotapes and no databases.  Without librarians, publishers would lack a valuable resource to make their works available, to publicize their works, to teach patrons how to use their works, and to preserve their works for posterity.  Librarians, publishers, and producers share many core values about works of literature, the value of these works, and the importance of preserving them for future generations.  Although librarians and authors often disagree on issues involving digital media, both parties realize the importance and value of information to people in the digital age, and both believe that information should be trustworthy and incorruptible.  Both groups believe that publishers play a valuable role in making available to the public works containing information.  The editorial work, the management of the peer reviewing process, and the distribution role played by publishers is crucial to the production of quality works, and both groups believe that publishers should be fairly compensated for these contributions.

          Despite sharing many common goals and values, significant disagreement exists between librarians and content producers and publishers.  Librarians tend to view information as a necessary public good, such as food, shelter, and warmth; that should be made available at a reasonable cost.  Commercial producers and publishers of copyrighted works, however, tend to view their works as private property that can be commercialized.  Thus, the economic goals of producers and publishers often conflict with the social goals of librarians.  From the perspective of the librarian community, publishers often appear to maximize profits at the expense of research and scholarship.  Librarians, however, are less concerned about profit than they are about what they view as the higher-minded goal of providing high quality information to people.  Conflicting values make it difficult for these groups to compromise and negotiate with each other, and each feels that its existence is somehow threatened by the other.  The core value conflicts also negatively impact the debate about what role copyright law should play in resolving competing interests between publishers and librarians.  This fundamental distinction between the way creators and publishers, on one hand, and librarians, on the other hand, view and value information has existed as long as public libraries have, but it has not prevented the two groups from working together in the past to create and distribute information.  The evolution of the digital world, however, highlights these opposing values and appears to exacerbate the differences.

            Popular sentiment sometimes supports the values of content providers and sometimes supports the librarians' values.  For example, American society admires and supports capitalistic notions of developing products and then selling them to maximize profits for the entity or individuals who paid for the development and production of that product.  Naturally, this position supports the views of the publishers and producers of copyrighted works.  On the other hand, society also believes that public access to information and the existence of free public libraries is important - or even essential - in a democratic society.  This supports the librarians' values.

            The Constitution acknowledges the competing interests between these groups in the Copyright Clause: "The Congress shall have Power ... To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”[1]  By "Science" the Framers meant all disciplines of learning, and thus promoting learning is a goal of copyright.  Content providers view the Constitution's Copyright Clause as ensuring protection for their works and focus on the "exclusive Right," while librarians focus on the social good of promoting learning among the public and focus on the mandate to "promote the Progress of Science." The delicate balance between competing interests called for by the Constitution, however, may now be at risk, according to at least one commentator:

If copyright is cast too narrowly, authors may have inadequate incentives to produce and disseminate creative works or may be unduly dependent on the support of state or elite patrons.  If copyright extends too broadly, copyright owners will be able to exert censorial control over critical uses of existing works or may extract monopoly rents for access, thereby chilling discourse and cultural development.[2]
            As a librarian, I certainly know much more about librarians' values than I do about publishers and producers' values, but I am also a teacher of intellectual property law, and I recognize that both groups have important goals and missions.  In discussing the values of the two groups, I do not mean at all to imply that right and wrong values exist.        When one is discussing values, there is no right or wrong, but only differences.  Additionally, I run the risk of over--generalizing when ascribing values to each group.  Clearly, not all librarians have adopted the values I assign to them.

            Although both groups clearly have values in addition to the ones identified here, this article is limited to a discussion of the primary values that relate to copyright.  The core values of authors and publishers that relate to copyright include: (1) compensation for the creation and production of their works; (2) ability to control their works; (3) authentication and recognition of their works; (4) broad marketing of their works; (5) promoting strong intellectual property rights; and (6) viewing, the fair use doctrine as an affirmative defense to copyright infringement.[3]  Librarians' core values regarding copyright law include: (1) recognition of public libraries as educational institutions; (2) providing information to the people; (3) providing information on all sides of an issue; (4) promotion of the rights of users of copyrighted works; (5) ability to identify and locate information, (6) recognition of the importance of the public domain as a repository of information; and (7) viewing the fair use doctrine as a right of a person to use a copyrighted work.[4]  Societal values relating to libraries, publishers and producers and copyright include: (1) the importance of an educated population; (2) support for entrepreneurship; (3) access to public libraries; (4) the importance of the public domain; and (5) public access to information.

            Value differences clearly have affected discussions and negotiations regarding copyright.  Since the early 1990s,[5] disagreements between publishers and librarians have seemed increasingly acrimonious to me, and I began to wonder why.  What has changed to increase the decibel level in the debate?  There may be no easy answer, but, at least in part, conflicting values contribute to the disagreement and create a siege mentality on both sides.  Likewise, there may be no simple solution to the disagreements that will soothe the debate between librarians and copyright holders.  By recognizing the depth and strength of these values, perhaps the parties can avoid causing further schisms and entrenchment in positions that prevent agreements to solve problems conjointly.

I.  CONTRASTING CORE VALUES

A. PUBLISHERS AND PRODUCERS OF COPYRIGHTED WORKS

          Publishers and producers are not all alike.  Similarities exist among the various types of copyright holders, but their interests are not all the same.  Music copyright holders differ from traditional print publishers; videogame owners differ from photographers.  Moreover, even within a class of copyright holders, differences may exist.  For example, traditional publishers may operate for-profit or as a nonprofit organization, such as a society or professional association.  A common goal of all publishers and producers is making their works available to the public, and doing so now requires using both traditional media and recently created digital media to distribute their works.[6]  It is evident, however, that something has changed due to the growing presence of digital distribution technology, which makes copying much easier and cheaper, so that core values of the copyright holder community are threatened regardless of whether the copyright holders operate as commercial or nonprofit entities.  This threat implicates another stated goal of publishers - to encourage and promote strong intellectual property rights worldwide.[7]

          The right to control reproduction is said to be the hallmark of copyright, and copyright entrepreneurs expect to be compensated when their works are reproduced.[8]  Reproduction is more common and easier to achieve in the digital world than in the analog world, especially if one considers transient copies made by computers.  When libraries reproduce copies and give them away, publishers believe that they should be compensated for the copies.[9]  This expectation is not new in the digital environment.  Authors have been aware for many years that libraries make reproductions, but have generally tolerated this practice without objection, viewing it as a de minimis infringement.  Todayin the digitalage, however, instead of talking about infringing reproductions, copyright holders use terms like "theft" and "piracy" to describe the practice;[10] such words leave little room for debate or for considerations of exemptions such as fair use[11]  From the perspective of content providers, what has changed is not only the quantity of reproductions that may be made through electronic means, but the quality of the reproductions.  The ability to produce copies from a digital work with no degradation of quality is a significant matter to publishers and producers, because it permits unlimited reproduction of information, whereas previously, the extent of reproductions was naturally limited by the means of reproduction.[12]   Perfect copies were not possible until the advent of computer technology, so this is a new concern.

       Publishers and producers value the ability to control their works in the marketplace.[13]   Fear of loss of control now appears to be much stronger on the part of copyright holders than it has been previously.  Is the increased fear justified?  Perhaps it is, since loss of control easily can result in total destruction of the value of the work.  The volatility of the legal environment also probably contributes to this fear, since publishers and producers cannot depend on the courts to restore that control.  Once control is lost, it is lost permanently.  Technology presents copyright owners with an opportunity to exert greater control over their works than ever before, since not only access to the works, but also the use of works can be controlled.[14]  Concomitantly, however, detecting infringement may be more difficult.  One response to the latter problem might be to prevent all copying rather than finding ways to permit lawful reproduction.

       Publishers value works that they can authenticate, thus ensuring that the content they originally provided remains unaltered.[15]   The fluidity of the digital environment raises concerns on the part of publishers and producers that persons will gain access to their works and then alter the works in a way that reflects negatively on the publisher.  Content providers also value the ability to market and protect their works in the digital world.  The digital environment permits the sale of access to increasingly smaller bits of information, which makes new marketing strategies possible.  Publishers also value the ability to market their works broadly and to explore new markets.[16]  Eventually, a pay-per-view distribution system in which each consumer can purchase exactly the information he or she desires may be possible in the digital world, as publishers and producers point out.  Such a pay-per-viewdistribution system would allegedly be incredibly inexpensive for users whocan purchase small bits of information as opposed to having to pay for access tothe entire work.  The envisioned low cost pay-per-view distribution system, however, has clearly not yet been developed, and whether it ever will be is questionable.  Another change relating to marketing in the digital world licensing is increasinglyrecognized as a way to protect intellectual property rights, and licenses are becoming more encompassing and broader.[17]  Publishers are beginning to value their control over rights and permissions as an income stream as they never have before.[18]  Finally, a core copyright value for publishers and producers is the notion that fair use is only a defense to copyright infringement, and it is not a right of users of copyrighted works.[19]

            Based on some of these values, radical public statements made by publishers are understandable, but they raise considerable concern on the part of librarians.  Examples of such statements are that in the digital world pay-per-view will be preferable to sales of copies as a way to recoup the cost of creating a copyrighted work, and that interlibrary loans should be eliminated in the digital environment.[20]

B. LIBRARIAN VALUES

                   Librarians also have deeply held core values, some of which have never been questioned.  Statements made by publishers and producers sometimes strike at the heart of these values.  Many of these values come from what may be called the public library ethos; librarians as a group tend to share these values whether they work in the nonprofit sector or in the for-profit environment.[21]  The education and training of librarians inculcates some of these values, which have been exhibited in debates and considerations about copyright.

            What are some of the core values held by librarians?[22]  One core value is that public libraries are educational institutions.  This core value, held for at least 125 years, potentially conflicts with the Copyright Act, in which public libraries are considered nonprofit libraries, but not educational institutions.  To librarians, however, libraries, archives, and museums serve such an important educational function that even when asked today, librarians often say that public libraries are educational institutions.  Throughout the Copyright Act, however, phrases like "libraries and nonprofit educational institutions" are used, making it clear that the two are distinguishable.  Thus, the exemptions available only to schools and other educational institutions are not available to libraries generally.  True, libraries in nonprofit educational institutions straddle the divide, but other types of libraries do not benefit from the exemptions for educational institutions.[23]

            The most important core value for librarians is "information to the people." Public libraries are a shared intellectual resource maintained at public expense to provide resources that will be shared.  Libraries purchase works and make them available at no charge to any user of that library, which is permitted by the Copyright Act under the first sale doctrine.[24]  This may conflict with publishers' goals, but section 108 of the 1976 Copyright Act,[25] called the library exemption, makes clear that the exclusive rights of copyright holders are limited to permit many standard library activities to occur without the need to seek permission from the copyright holder.

            Public libraries as institutions question authority by providing information on various sides of an issue.[26]  Often it would be easier and less stressful on library staff if the library provided information that supported only the dominant beliefs in a community.  From earliest times, however, public libraries have steadfastly provided information on multiple sides of a matter to permit library patrons to educate themselves and make up their own minds about issues.  Sometimes individual publishers have suggested that libraries purchase only their materials rather than both theirs and those of a competitor.  Even publishers of legal materials have been guilty of this in private conversations with law librarians.

            As part of the value of information to the people, libraries promote the rights of users under copyright.  Librarians also support the right to read, the right of access to ideas, etc., and they view the role of librarians as advocates for users who often too, are silent about their needs and wants, or who may not even know what they need.  Libraries are valuable to society because they provide access to information to the economically disadvantaged and to other "have nots."  They provide an equalizing influence that can serve to reduce the differences between rich and poor when it comes to information.  Librarians believe that users have the right to browse in the digital environment just as they do in the analog world.  Browsing, is a way of selecting what information is needed, but this clearly conflicts with the content providers notion of paying for access.[27]

            The Copyright Act itself recognizes some of these values in the section 108 exemption.  For example, libraries may lawfully reproduce copies of portions of works, such as an article from a journal issue to satisfy a request from a user.[28]  If the library to which the request is made does not hold the requested item, under the exemption, that library may satisfy the request by obtaining a reproduction of the article through interlibrary loan activities.[29]  Librarians also believe that section 108 and the fair use doctrine permit them to provide library service to distant learners for whom the library is their primary library.  Finally, in order to facilitate teaching, and learning, librarians see the library as an extension of the classroom with the creation and maintenance of reserve collections, including electronic reserves under the section 107 fair use provision.

            Although librarians do not necessarily believe that information should be free, they do believe that once a library has subscribed to, or licensed for, access to a work, users of the library should have unfettered access to it.  Some librarians would probably further argue that the location of the user is irrelevant.  For example, if the user is an enrolled student of the university, whether she is physically located on campus or not should be immaterial; the critical issue is whether she is an enrolled student.  Restrictions in license agreements that limit users to physical presence on the campus or restrict the ability of a library to use the work for interlibrary loan conflict with this value.

            Another librarian core value is that users of libraries should be able to locate information - i.e., identify that it exists and where.  The role of librarians is to assist and teach users to locate information.  This depends on standard indexing, and abstracting services as well as Internet search engines.  Traditionally, indexing and abstracting services have been provided by third parties and not by the entities that held copyright in the work.  For example, the H.W. Wilson Company began its indexing in 1901 with the first Readers Guide to Periodical Literature that included only 20 periodicals that were recognized as “acceptable” by the literary and academic communities.[30]  The theory of indexing changed over the years with the addition of indexes such as Index Medicus that evolved into the online service, Medline, but nonetheless, third parties conducted indexing.  These organizations may have been for-profit (H.W. Wilson Company), nonprofit (Public Affairs Information Service), or even a Government agency, such as the National Library of Medicine, which produces Medline.  Even if the indexer was a commercial entity, it was still a third party that did not hold the copyright in the content.

            Today, publishers are adopting new digital object identifiers (DOls) to attach to digital information and to link it through indexing.  The DOI index would be linked to the full-text of the work.  In theory, this sounds great, since the DOI will stay with the object regardless of whether the publisher sells the digital work, etc., but some concerns about DOls exist.  With DOls content providers would not only control the indexing, but also access to the indexing and through the index access to the digital object itself.  All of this would be available to users only through licensing arrangements.  Publishers state that this would be a great boon to researchers,[31] but this is true only if researchers have access to that publisher's digital materials or to a consortium of publishers' systems that are licensed.  If a scholar wants to cite an article using a DOI, it would become an inaccessible reference to anyone who does not have access to one of the publishers' systems in the consortium.  No longer would neutral third parties provide the indexing and abstracting services one can use to determine the existence of a work even if the library does not subscribe to the journal or proceeding, in which the work appears.[32]

            Perhaps the most important manifestation of the core value of information to the people is the importance of the public domain.  Librarians believe that having unrestricted access to non-copyrighted works is crucial for research and scholarship.  Copyright law should riot restrict public domain works in any way, and users of libraries should be encouraged to make wideand frequent use of public domain works.  Further, U.S. government-produced works should be free of copyright and widely available.

            Even though librarians likely hold other core values related to copyright, the last one critical to mention is fair use.  To librarians, fair use is a user's right and not just a defense to copyright infringement.  Further, librarians believe that not only individuals but also libraries have fair use rights, based on the library exemption in section 108(f)(4), which states that “nothing, shall affect the right of fair use…”  The word used in the statute is "right" and not "privilege;" thus, it is easy to see why librarians maintain that fair use is a right, not just a defense to infringement.  Whether fair use is a defense to copyright infringement or is a right has Ion- been debated, with librarians and publishers and producers weighing in on different sides.  Recently, the National Research Council recognized this divide in a report published in early 2000, The Digital Dilemma, Intellectual Property in the Information Age.  It highlights this disagreement in relation to private copying, but does not resolve the dispute.[33]

            In recent years a number of professional library organizations have developed policy statements that reflect and restate some of these core values.  The American Library Association is currently drafting a statement of core values.[34]  In the latest draft of the statement, four of the eight values identified relate to copyright. The first of these concerns is the connection   of people to ideas. The other core values flow from that.  "We guide the seeker in defining and refining the search; we foster intellectual inquiry; we nurture communication in all forms and formats.”[35]  A second core value is the unfettered access to recorded knowledge, information and creative works.  "We recognize access to ideas across time and across cultures is fundamental to society and to civilization.”[36]  Leaning in all its contexts is the third value.  "We aid people to become independent lifelong learners by selecting and offering materials that support the differing needs of all learners, and that entertain and delight the human spirit.”[37]  The fourth value that relates to copyright concerns preservation of the human record.  "The cultural memory of humankind and its many families, its stories, it expertise, its history, and its evolved wisdom must be preserved so it may illuminate the present and make the future possible.”[38]

            The Association of Research Libraries (ARL) has developed several documents that state core librarian values without so identifying them.  Fair Use in the Electronic Age: Serving the Public Interest was adopted in the mid-1990s.[39]  It details what the public should have a right to expect to do without incurring copyright liability:

to read, listen to or view publicly marketed copyright material privately, on site or remotely;

to browse through publicly marketed copyrighted material;

to experiment with variations of copyrighted materials for fair use purposes, while preserving the integrity of the original;

to make or have made for them a first Generation copy for personal use of an article or other small part of a publicly marketed copyrighted work or a work in a library's collection for such purpose as study, scholarship or research; and

to make transitory copies if ephemeral or incidental to a lawful use and if retained only temporarily.[40]

            Additionally, the ARL document posits that nonprofit libraries should be able to under-take certain activities, such as using electronic means to preserve copyrighted materials and to provide copies through interlibrary loan, on the part of their clientele without infringing, copyright.  Further, libraries should not be liable for the actions of their users after they post the appropriate notices on unsupervised reproduction equipment.[41]

            In 1994 the ARL adopted Intellectual Property: An Association of ResearchLibraries Statement of Principles, a statement in response to the White Paper[42] that affirms the rights and responsibilities of the research library community in copyright.  The most important of these rights is that copyright exists for the public good, and concomitantly, fair use must be preserved in the developing information infrastructure.  It also stated that licensing agreements should not be allowed to abrogate either fair use or the library exemptions provided in the Copyright Act.  It recognized that librarians and educators have an obligation to educate the users of information from their collections about their rights and responsibilities under intellectual property laws.  The statement opines that federal government works should remain free of copyright restrictions.  Finally, it states that the information infrastructure must be formulated to permit compensation to authors for the success of their creative works and to provide fair return on investment for copyright holders.[43]

            In 1999 the ARL restated some of these values in a document called its Keystone Principles,[44] which has some impact on core values.  The most important of these is a slight change over earlier statements:  now access to information is identified as a public good.[45]  This recognizes that academic authors and institutions or public institutions often create information, and the public interest is served by having this information available.  The ARL believes that commercial enterprises have disrupted the public availability of such information through pricing policies, licensing restrictions, and the like.[46]

C. SOCIETAL VALUES CONCERNING LIBRARIES AND COPYRIGHT

            Probably the core value that members of the public hold most dear in this area is the importance of an educated populace.  The U.S. Constitution is a charter for self-government, and only an educated populace can self-govern well.[47]  Libraries play a crucial role in creating an educated citizenry through literacy and reading programs, and simply by making information widely available to the general public.  Thus, it follows that the public value of education may be furthered by the availability of free public libraries.  Another value the public holds is the importance of the public domain.  While copyrighted works play a key role in “promoting the progress of science and the useful arts,"[48] public domain works provide much of the intellectual commons that members of society share.  Evidence of a contrary view might be found in the recent reduction of the public domain by the retroactive extension of the already long term of copyright by an additional 20 years.[49]  Additionally, it is clear that American society recognizes the importance of public libraries and public access to information.  There is considerable public support for libraries.  In mid-1998, a Gallup poll showed that 67% of Americans visited a public library within the last year, 54% checked out a book, and 21% checked out other materials, like a CD or a video.[50]  "In the continuing struggle to establish and maintain democratic values, free public libraries are essential for providing information and knowledge …”[51]  There is also a civic aim:  the free public library offers citizens a way to become informed and educated citizens.[52]
 


II.  HOW DID LIBRARIANS' CORE VALUES DEVELOP?

A. HISTORY OF PUBLIC LIBRARIES

            As the first major urban public library in the United States, the Boston Public Library was opened to the citizens of Boston in 1854 in rented space on the bottom floor of a school on Boylston Street.  The idea for a public library actually had begun 30 years earlier with a proposal to unite some of the city's privately owned libraries.  In 1839 Alexandre Vattemare proposed that the great cities of the world exchange cultural items such as books, works of art, etc.  He also suggested that the cities build libraries and museums so that the public could then view the collected cultural artifacts.[53]  Vattemare visited Boston in 1841 and proposed a merger of 15 private libraries.  Not surprisingly, most of these libraries were less than 54 enthusiastic, but in 1847 he persuaded Boston officials to build a public library.[54]  The city council succeeded in negotiating a $50,000 loan from a London bank with which it created a book fund.  Three years after the 1854 opening, the Boston Public Library moved into its own building with space to house 240,000 volumes.[55]  By 1875 the public library movement was well underway; 188 libraries had been established across the country, and more were planned.  Public libraries were considered to be educational institutions[56].  The belief behind public support for public libraries is expressed in an 18th century Rationalist view of American Democracy, "that every person should have an equal chance to fulfill his abilities; that every man can and will do so if given the chance; that the individual shall be free to develop his inclinations and capacities; and that society will progress as the enlightenment of its citizens advances.”[57]  Librarians viewed themselves as missionaries of literature, and began to assist schools.  The general view was that public libraries were poised to help the country solve various social problems.[58]  In the last decade of the 19th century librarians wanted to elevate society and raise the levels of knowledge, goodness and wisdom.[59]  Libraries then and now are considered to be a public good,[60] and [p]ublic libraries, like public schools, came to be accepted as public responsibilities, civic goods benefiting the entire society and thus worthy of pubic support.[61]

            As the library historian Patrick Williams described librarians at the close of the 19th century and into the 20th century, librarians were inspired: "[t]hey idealized the library as messianic, as an agency of national salvation.  They saw themselves as missionaries enlivened by the ‘library spirit.’”[62]  They continued to insist that public libraries were educational institutions.  The Library Spirit was compared to the spirit that built the great European cathedrals.  The spirit was one of service, and brought books and learning to towns and hamlets, as well as cities.  Libraries were altruistic in nature, and everything seemed to be working.  By 1896 there were 971 public libraries with 1000 volumes or more; by 1903 there were 2,283.[63]  Between 1906 and 1915 Andrew Carnegie donated money from his personal fortune to build over 639 library buildings in cooperation with local governments.  Governments also became more active in library development and building.  Books were distributed in traveling libraries to rural areas.  Public libraries in cities and towns placed books in public schools, firehouses and police stations.[64]

            Public libraries' missionary service also included immigrants.[65]  Libraries viewed this Americanization effort as a service to the immigrant community – it was their patriotic duty and a role that librarians willingly accepted, apparently with little question.[66]  It seems to have been a goal of public libraries to work with immigrants.  Libraries apparently viewed themselves as civilizing influences, and services to immigrants were viewed as a social obligation.[67]  Public libraries provided books to immigrants, sometimes in the immigrant's own language, lectures on a variety of topics such as health, food, American law, etc.  They offered classes on English, and immigrants were taught manners and how to behave.[68]  What was taught was often described as the “American way of life.”[69]

            By 1915 the missionary era was coining to an end[70] and was being replaced by the new rage, adult reading courses.  From 1920-48 public libraries were involved in the adult education movement.  Adult education was not a new idea, but it was newly emphasized by government at this time.  There had been earlier lecture series that were aimed at educating adults, like the Lyceum and Chautauqua series in addition to local lectures held at public libraries.[71]  After the two World Wars, however, much had changed in society.  Although public libraries had made significant contributions to individual lives, they had not been greatly successful in educating the masses.[72]  In the 1950s the American Libraries Association (ALA) and others thought that the Library Services Act[73] would contribute significantly to creating equal education opportunity for rural America.[74]

            After World War II, the Carnegie Corporation was consulted to see if it could determine why support for public libraries was so weak if they were indeed so necessary to a democracy.  After discussions with library leaders, the ALA sent a proposal to the Brookings Institute in 1946 for a study, now referred to as the Public Library Inquiry.  Sociologists and others assisted librarians in this important study.[75]  The study was to be wide ranging, and to examine how well the public library served its various user populations, along with how effective it was in cultivating loyalty to the basic conceptions and ideals of the democratic way of life.[76]  The Public Library Inquiry produced a number of reports that probably were infused with bias, and it assumed certain contentious values were widely shared so that its recommendations could be accepted.[77]  One of the central findings came from the belief that the capability of learning was universal.  This notion was dubbed as the "Library Faith," which is expressed by the syllogism that printed works have such value that reading itself is a good; reading in order to learn is moral and useful behavior, so libraries contribute value to society.  The public library is important to the democratic process because of its relationship to books and reading.  It provides free access to all library users of works that have value because they enhance a user's pursuit of knowledge and happiness.  Further it provides sources of knowledge for the informed citizenry who are responsible for the very fate of democracy.  One final goal and value of the public library is that it both preserves and organizes recorded knowledge worldwide and thus plays a critical role in cultural and social continuity.[78]  The Inquiry maintained that this faith was historical and was central to the ideology of public librarianship.  The ideology was the lens through which librarians viewed the world and made decisions.  Further, the ideology adopted a justification that saw the public library as occupying a unique place as a state institution, which contributed in very specific ways to democratic culture.[79]

            The Library Faith has its roots in the 19th century.  Charles Coffin Jewett, in his 1849 report to the Regents of the Smithsonian Institution, identified two social benefits provided by public libraries: (1) a direct benefit to the ordinary America who can use the collections and services to improve practical skills, gain cultural knowledge, enhance moral strength and increase productivity, and (2) an indirect benefit to the nation in the form of greater economic productivity and a better quality of life.[80]  Jewett's view is consistent with the Library Faith and describes the public library as an intellectual commons, contributed to by everyone and available to all.  A part of the value of the public library comes from the very fact that it is a shared resource.[81]

            The Library Faith was resurrected in the Public Library Inquiry, but this time it was armed with a strategy for action.[82]  The central purpose of the Inquiry was to establish a link between democracy and free public libraries.  The Public Library Inquiry offered an empirical examination of the pubic library in terms of what the institution had achieved and what could have been achieved when compared to its own objectives.  Then, it attempted to place the public library in the broader context of American culture and politics.  It was also an attempt to stimulate librarians to reexamine their professional values.[83]

            The Public Library Inquiry resulted in seven books and five special reports.  It was really a survey instrument, a study of public libraries that would tell librarians what to do to make their public libraries the instrument of popular education that they wanted them to be.  It suggested that libraries should reinvent themselves to ensure users the "widest possible range of reliable information."[84]

            Beginning with the Library Services Act in the 1950s, changes were inevitable; bookmobiles hit the road in the 1960s with service especially to rural areas, and adult education efforts continued in to the 1960s.[85]  From 1965-80, activists began to push services for persons considered disadvantaged who traditionally did not much use the library.  Renewed outreach beginning in 1967 indicated a significant difference in the types of works that public libraries needed to provide: movies, tape recorders, viewmasters, etc.  But by 1970 outreach programs began to wane.[86]

            A Strategy for Public Library Change was presented at the Public Library Association meeting in January 1972.[87]  The Strategy proposed a new role for public libraries, premised on the concept that information in the form of data, facts, and ideas is essential to the flourishing of the country's citizens, which redefined the role of public libraries as information providers.[88]  By the late 1970s a new emphasis on providing information to everyone had developed, which stressed that "[all] information must be available to all people in all formats purveyed through all communications channels and delivered to all levels of comprehension.”[89]  This very broad role envisioned for public libraries, however, was one few would be able to meet.  Nevertheless, the role of information provider is an appropriate one for libraries since “access to the accumulated information, knowledge and wisdom of humankind is essential. ...  It is that function which the library performs best ...[90]

B. EDUCATION AND TRAINING OF LIBRARIANS

            The education and training of librarians is based on ideals such as the Library Spirit and later the Library Faith.  The first librarian education program was founded at Columbia College in January 1887 under the direction of Melvil Dewey.  Classes were held across the street from the main campus, because not only did the first class admit women, but the class was also comprised of 17 women and three men.  Faculty members were predominantly members of the library staff of the libraries at Columbia with some other librarians brought in as guest lecturers.  Faculty members were supposed to inculcate the library spirit - an attitude about library use and access to those collections.  It was this library faith that distinguished Dewey and his generation of librarians from earlier generations whose primary goals were security and preservation of collections.[91]

            The Library Faith permeated early library education and continues to this day.  Librarians are trained with the public library ethos, and it carries over into their work lives.  Even librarians in the for-profit sector often still operate with this library faith at work.  They have often had difficulty in recognizing that the for-profit environment may significantly chance the relationship between copyrighted works and the user.  Librarians have tended to view all users as having, rights to access and use works just as members of the public have this right.  The copyright law may, however, differentiate between those users of public libraries and users of a corporate library, if the Texaco[92] case isany example.

C. LIBRARIES IN THE PRESENT DAY

            Libraries have developed into well-defined social institutions that hold a collection of "knowledge representing objects."  Libraries play several roles: (1) they are consumers in the economic system, (2) they participate in the political system and (3) they serve as locations of social exchange in the everyday lives of people in the community.[93]

            Librarians have always been concerned with information content stored in artifact form such as books, journals and film.[94]  Librarians are primarily information handlers: they acquire information, organize it, provide access to it,[95] and "serve as intermediaries between the public and the objects of cultural and intellectual authority."[96]  Historically, librarians were also concerned with activities relating to the process of publishing and distributing copyrighted works, but to a much lesser degree.  Their primary concern was with the collection, storage, and access to static content, rather than with the process of producing and publishing content.  Today, however, much information is increasingly dynamic, and it is clear that information consists of both content itself and the process of producing and distributing it.[97]

            A central tenet of librarianship is that access to information should be free.[98]  Because the accumulated cultural memory is stored in libraries' collections and available for consumption by the library users, libraries facilitate information exchange among individuals and society - knowledge contained in the library is transferred to users, for example, when they read.  The result of this transfer is socialization and education, but it also facilitates solutions to personal problems and the generation of new knowledge.[99]  One noted commentator says of information that "[p]ower in the information age, just like power in the bronze age, the iron age, and the ages of Enlightenment and Industrialization, flows primarily to information users and creators, and most power in the information age, just like most power in the bronze age, the iron age, and the ages of Enlightenment and Industrialization, flows to those best situated politically, economically, socially and culturally.[100]  The librarians' role as teacher is also expanding as they train people to use the Internet and attempt to screen for quality content in the vast sea of digital information.  Furthermore, as technology allows information to become more proprietary in the digital environment, the role of libraries is expanding to ensure freedom of access to information.  Another traditional role for libraries is preservation, but preservation of new, elusive and alterable digital knowledge is just now beginning to be addressed.[101]

            Librarians also fight the dominant culture by collecting materials the dominant culture does not value or approve of.  Libraries bring a vast amount of material together and challenge power by facilitating access to works and by organizing the information regardless of textual format or content.  Librarianship is essential in a capitalistic democracy because freedom of access to information is crucial in a democracy even though capitalism may not appreciate this necessity.[102]  Librarianship facilitates reading, the chief value of which is to produce educated people who, having imbibed knowledge and values, contribute to the important process of cultural and social change and to the survival of culture by virtue of the kind of people they have become.  In the information age, librarianship takes on another important role since individuals are viewed as using documents for their information content to solve particular problems, whether personal or social, in addition to generally improving society by reading.[103]

            The commodification of information is a threat to the public's access to information.  This is why the slogan that "information wants to be free"[104] is so attractive to librarians.  What librarians really want, however, is not that information be absolutely free, but that it be only free to the user after the library has paid for access for its users.  Librarians view their role as helping and providing information to those who need it; often they do not recognize that this may conflict with publishers' and producers' values.  For example, to publishers, the fact that perfect copies can be reproduced from digital copies is a critical concern in evaluating the harm to the market that copying causes.  Such copies are basically viewed as "originals." To librarians, however, the fact that a copy of a textual work is a perfect copy is immaterial.  Librarians view what they do as providing the copy to users, and as long as the information is legible, the quality of that copy simply does not matter.[105]  This is one reason why publishers and librarians are often talking at each other as opposed to reaching real understandings.

            Publishers appear to be under the impression that most librarians believe information should be absolutely free.  This is not an accurate portrayal of librarians' views.  Since libraries were formed, they have purchased materials in order to make them available to users.  Thus, the materials budget for many libraries is quite large,[106] and there is an understanding of the value of these works and the importance of the information they contain.  Librarians certainly recognize that copies of books, journals and the like must be purchased, since donations are not likely to provide the balance and breadth that most seek in developing library collections to reflect all sides of an issue.  Additionally, for several decades libraries have been signing licenses to make information available online to their users; there has been no thought or debate that non-public domain databases should be provided free.  Librarians also recognize the investment made by database developers to collect and organize the information contained in these valuable research sources, and that there must be fair return on this investment.

            What librarians staunchly advocate is that individual users should not have to pay for information obtained from their public libraries.  Libraries should be able to negotiate licenses to provide access for users in their companies, academic institutions, and public libraries.  They fear the threat that information will become pay-per-view and that the library will no Ionger be able to negotiate appropriate terms and fees to make a database available to its users.  So, statements such as "information wants to be free" may simply mean free to the individual, not free to the library.  If database proprietors charge too much for the license fee, then the library will not be able to purchase access for its users.  This will mean that patrons with economic means will be able to afford individual access to the data while the masses will not.  The idea of "information have-nots" provides a direct clash with the core values of librarians.  Librarians deeply believe that information should be available to everyone who chooses to come to the library to use it, and that access by individuals should not be determined by their ability to pay.  This likely originates with the idea of free public libraries and universal service.

            Pointedly, this does not mean that no one should pay for the information.  Indeed, the library has long agreed that it should foot the bill for access to information.  It just may not be able to do so if license fees become too high or if the pay-per-view model is adopted.  Libraries must have a "sum certain" in the budget - they tried in the early 1970s simply to allow access and pay for "hits" in a database, but many libraries had to abandon this practice or even curtail it in the middle of a fiscal year when the charges reached the amount budgeted to cover use of that database.  Negotiating, for a year's access, not on a per search basis, but on a flat rate permits the library greater flexibility even if it then has to narrow access to everything in the database as a way to reduce its costs.

            Librarians also fear the possibility that pay-per-view will mean that their role as intermediaries will be threatened.  Librarians have long, assisted users with their information quests, taught them how to formulate their queries, how to conduct research more efficiently and effectively, and guided them through the complex maze of available resources.  The coal is to help each user get exactly the information he needs; not too much information, and not information that is overwhelming to the user.  This intermediary role is a type of information filter, not a censor.  The training of librarians helps them to determine which sources are age and experience appropriate, how to best search the contents and how to help users so that they can become independent and confident researchers.

III.  LIBRARIES AND DIGITAL COPYING

            Many of the value differences between copyright holders and librarians are highlighted by the various exemptions to the Copyright Act.  Section 108, which provides certain exemptions for libraries vis-à-vis the rights of the owner of the copyright, is particularly relevant to this discussion.  In addition to the library exemptions, libraries also have fair use rights.[107]

A.  ELIGIBILITY FOR THE LIBRARY EXEMPTION

            Section 108(a) details the conditions under which a library or archives is eligible for the library exemption.  First, the section permits making only single copies of works except for preservation purposes, when, under certain conditions, the library may make up to three copies.[108]  Second, the reproduction and distribution must be made "without direct or indirect commercial advantage."[109]  The meaning, of this phrase has never been litigated, and the legislative history is not abundantly clear.  It is in this requirement that evidence of the values conflict is evident: what does “without direct or indirect commercial advantage mean”?  Publishers say that if the library is in a profit-seeking entity, the library cannot meet this criterion.  Librarians do not accept this interpretation of the words of the statute.  They believe the statutory language means that it is the reproduction itself that may not be used for direct or indirect commercial advantage, i.e., sold for a profit.  There is additional support for this position in the legislative history discussing section 108(g)(1); the House Report states that even a library in a for-profit entity may reproduce an article for a user to use in her work as long as it is an isolated and spontaneous request.[110]  Therefore, if the library provides document delivery services to its users, and, even if there is a fee charged for the service, it can argue that there is no direct or indirect commercial advantage if that fee represents only cost recovery.  Instead, it is revenue neutral and there is neither a commercial advantage nor a disadvantage.  However, later amendments to other sections of the Copyright Act all seem to insert the words "nonprofit" before library, which offers some evidence that legislators, at least after the passage of the 1976 Act, considered exemptions necessary for libraries to apply only to the nonprofit sector.

            The third requirement is that the library's collection must be open to the public or to non-affiliated researchers doing research in a specialized field.[111]  Certainly many libraries in nonprofit educational institutions as well as public libraries meet this criterion.  For other libraries, this might be met even if the collection is not open to the public generally but only by appointment for qualified users, such as researchers.  Libraries that are not open to any outside users have a more difficult time qualifying under this criterion.  Librarians likely would argue that a library not open to outsiders but which lends any of its published materials through interlibrary loan also qualifies for this exemption; publishers likely disagree, but the matter has never been litigated.  The fourth and final requirement concerns notice of copyright on copies the library reproduces.

B. NOTICE OF COPYRIGHT

            Notice of copyright is a term of art in copyright law: it consists of three elements: (1) the word "copyright," the abbreviation "copr." or a "C" in a circle; (2) the year of first publication; and (3) the name of the copyright holder.[112]  Under the 1909 Act, an owner lost her rights if she published a work and failed to include such notice on copies of the work and did not give actual notice of copyright.[113]  The more author-friendly 1976 Copyright Act softened the automatic loss provision.  An author did not lose his copyright for any accidental omissions of notice if, during the first five years after publication, only a small number of copies had been distributed without notice, and if he later tried to correct this mistake.[114]  When the United States joined the Berne Convention in 1988,[115] notice of copyright was dropped as a formality, and today, placing notice on protected works is voluntary.  Librarians Generally regret this chance in the law.  Professional librarians and users depended on the notice of copyright to differentiate between works in which the owner claimed rights and those works that were in the public domain.  It seems that the burden on the copyright holder was slight in comparison with what copyright notice did for the public in differentiating works in which someone claimed rights from those in the public domain.

            Throughout section 108, libraries that reproduce works under the exemptions are required to put a notice of copyright on the copies they make.  The policy behind this requirement is to alert users that although the library was able to make a copy of a work for them, the work is not free of copyright restraints.  Within the library community, there continues to be debate over the meaning of "a notice of copyright." To the copyright holder community, notice of copyright is a term of art in the law, and most copyright lawyers believe that it meant the library should include the three traditional elements that comprise notice of copyright under section 401(b) mentioned above.  Some librarians argued that a library should simply stamp photocopies and other reproductions with the American Library Association recommended statement "Notice: This work may be protected by Copyright."[116]  Despite this on-going debate, the matter has never been litigated.  Many libraries have religiously used a stamp containing the ALA recommended wording, while others had a stamp made with ©, _____, 19_ or 20_. Then library staff members would fill in the name of the owner and the year of publication on copies it reproduced.

            The Digital Millennium Copyright Act[117] amended section 108(a)(3), which now reads: "Thereproduction and distribution of the work contains a notice of copyright that appears on the copy that is reproduced, or includes a legend stating that the work may be protected by copyright if no such notice appears on the work."  Thus, for libraries there no longer is any option for the content of "a notice of copyright." The library must include the notice that appears on the work.  This can be done by reproducing the page that contains this notice by writing all of the information on the copy or by creating, a rubber stamp with (©, _______ (for copyright owner), _____ (for year published) and filling in the notice information as it appears on the work.  The only instance in which the stamp or legend "Notice: this work may be protected by copyright" may be used now in lieu of the actual notice is when the copyright holder does not place a notice on the work.[118]  This is not exactly what librarians had hoped for; librarians had sought an amendment that would alleviate the burden of including a notice of copyright when the copyright holder failed to do so.  It is likely that the amendment relates more to the new copyright management information provisions[119] than it does to providing relief for librarians.  Although the legislative history states that the goal was not to increase the burden on libraries, that has not been the end result.[120]

            The amendment also has implications for the World Wide Web.  While webpages are copyrighted, often the developer does not include a notice of copyright.  Contrary to popular opinion, publishing a webpage without notice does not place the page in the public domain.  When printing or reproducing webpages for users, according to the newly revised statute, librarians must either print the page containing the notice of copyright or stamp the reproduction with "Notice: This work may be protected by copyright" if there is no notice on the webpage.

C. PRESERVATION

            The Digital Millennium Copyright Act (DMCA) amends the preservation and replacement sections of the library exemptions.  The Sonny Bono Term Extension Act also added a new subsection to 108 that expands the preservation right.  Both of these amendments relate to digital copying by a library, which copyright holders have Iong said was not permitted.[121]

            There are two sections that relate to preservation: section 108(b), which is a true preservation section; and section 108(c), which is a replacement section for lost, damaged, deteriorating or stolen materials.  The DMCA amended these two sections making it clear that a library can, under certain circumstances, use digital means to preserve library materials.  Further, these amendments were not applicable only to digital works, but also to traditional works.  The 1976 Copyright Act always permitted libraries to reproduce works for preservation or replacement purposes if certain conditions were met.  The DMCA amended these provisions to provide for meeting national microfilm standards and to make it clear that digital means might be used for preservation, but it also added an additional restriction for works preserved digitally.

            Under the original statute, section 108(b) permitted a library to reproduce one copy of an unpublished work for preservation, security or deposit for research in another library.  Section 108(c) allowed a library to reproduce a published lost, damaged, stolen or deteriorating work after the library made a reasonable effort to obtain an unused copy at a fair price.  The statute did not define fair price but the legislative history does describe what a reasonable investigation might entail.  It would require recourse to commonly known U.S. trade sources, such as retail bookstores, jobbers, and wholesalers; contacting the copyright holder or author, if known, or using an authorized document delivery service.[122]  Both sections further required that the work either currently be in the collection of the library or if not, that it had been there at one time.  Both sections stated that a library could make a "facsimile copy" when the conditions had been met.[123]  There was disagreement about whether a digital copy could qualify as a facsimile.  Many librarians maintained that digital copies, which scanned the page and represented an exact copy of the page were facsimiles; publishers steadfastly claimed that digital copies were not facsimile copies at all.

            The DMCA really terminates the disagreement.  It expands the preservation and replacement exemptions in several ways.  First, the library is no longer limited to making only one preservation copy of a work.  Now it may make three copies, which complies with national microform standards.  Second, the word "facsimile" was omitted, and third, the statute specifically permits the copy to be in digital format.[124]  While these three changes broaden the preservation exemptions for libraries, each subsection also contains a new limitation.  If the copy that is reproduced is in digital format, the digital copy may not be "made available to the public in that format outside the premises of the library ...”[125]  This may narrow the library's rights even though a library now may make a digital copy for on-premises use.  However, the library could also then make a printed copy from that digital copy and loan the printed one since it is allowed to make up to three copies of a work.  Prior to the amendment, a library that reproduced a work under these subsections could treat the reproduction just as it did the original work.  It could lend the reproduction to users, provide it through interlibrary loan, and the like.  This new restriction may mean that if the work is preserved in digital format, it cannot be used outside the library buildings, and this is much more restrictive.  Surely what Congress must have meant was that if the reproduction was digital and was available on the library's network, then it could be used only within the premises and not on a campus network or the World Wide Web.  In using the term "digital copy" Congress may actually have narrowed the exemption for works that were originally in digital format.  For example, if the original work was a CD-ROM, which now is lost and is not available at a fair price, a library may create another CD, which also happens to be a digital copy.  But the Ianguage of the statute says that digital copies cannot be used outside the premises even if the original was a digital copy that could have been outside the premises of the library.  This is more restrictive than the previous version of the statute, and likely is not what Congress meant to accomplish by the amendment.  Did conflicting values lead to this strange result?

            The DMCA amended section 108(c) in an important way.  In addition to applying to lost, damaged, stolen or deteriorating works, the amendment added "or if the format in which the work is stored has become obsolete." The amendment then explains when a format may be considered obsolete,"...if the machine or device necessary to render perceptible a work stored in that format is no longer manufactured or is no Ionger reasonably available in the commercial marketplace."[126]  This is a great help for libraries that currently are dealing with deteriorating 78 rpm recordings, Beta format tapes, and the like.  Thus, if the equipment is still produced but is extremely expensive, a library might determine that it is no Ionger reasonably available in the commercial marketplace and thus may reproduce the work under this amendment.  This was a chance that really benefits libraries and their users where there appears either to have been no values conflict with publishers and producers or where the groups were able to reach agreement on this issue before Congress.

          Even when a work becomes lost, damaged, stolen, deteriorated or obsolete, the library may reproduce it only after it determines by reasonable investigation that an unused copy may not be obtained at a fair price.  This applies to all types of works, including audiovisual works.  A library is not required to search the used book or videotape market in order to locate a replacement volume or item.  The statute does not define key concepts such as "reasonable investigation" or "fair price." Nor is there any time limit placed on how long a librarian should search for an unused replacement.  The legislative history does provide some guidance on what constitutes a reasonable effort to locate an unused replacement, however.  According to the House Report, "The scope and nature of a reasonable investigation to determine that an unused replacement cannot be found will vary according to the circumstances of a particular situation."[127]  It goes on to state that in the ordinary course of events, a library that seeks to replace a damaged, deteriorating, lost, or stolen work would first approach U.S. trade sources such as retail bookstores, wholesalers or jobbers.  If that proves unsuccessful, then the library should contact the publisher or author, if known.  Lastly, it should contact an authorized reproduction service such as UMI.[128]

            The House Report does not define "fairprice." There are two published definitions of fair price, one from a publication of the Association of American Publishers (AAP) and another from the American Library Association.  A values conflict is clear in the contrast between these two definitions.  In 1978, the AAP appeared to posit that a fair price was basically whatever anyone charged the library.  It defined as fair price the latest suggested retail price, if the work is still available from the publisher.  If the work is not so available, the fair price was defined as the prevailing retail price, or, if the library uses an authorized reproducing service, it was defined as the price that the service charged.[129]  The ALA publication[130] uses a three-part definition of fair price.  First, a fair price is the latest retail price, if the work is still available from the publisher. (This squares with the first part of the AAP definition).  Second, the fair price of a reproduction is the cost as close as possible to the manufacturing costs plus royalty payments.  While this is more helpful in determining whether UMI or another authorized reproducing service's price is a fair price, it is not without problems either.  Authorized reproducing services simply quote a flat price to the library with no division of the charges into manufacturing costs versus royalty payments, so there is no way that a library can use this part of the definition to help it make a decision about whether a price is fair.  The third part of the ALA definition deals with the loss or damage to one volume of a multi-volume set when single volumes are not available for purchase.  The ALA states that it could be argued that paying, a full set price in order to replace one missing volume from a set is not a fair price.[131]

            What is less clear is what happens when the stolen or damaged material does not comprise an entire volume but instead is only an article or two missing from a bound periodical volume.  Surely, in this situation the librarian should be able to make a reasoned judgment about how much investigation to do and could determine that there is no fair price to replace the article missing from a bound volume.  Most librarians would then simply reproduce the article and insert the photocopy into the bound volume.[132]  Determining what constitutes a fair price is left to the judgment of the librarian since there is scant guidance in this circumstance.  Thus, librarians must use their best judgment in making the determination.  Concomitantly, librarians should ensure that they are being fair to the publisher,    which has a legitimate right to profit from its products when they are available for purchase at a fair price.

            There is another very common preservation activity practiced by many librarians of all types, which reflects a values conflict.  When a library purchases videotapes for its collection, especially very expensive tapes such as those from the American Management Association, it is common practice to duplicate the videotape so that the library has both a use copy and a preservation or master copy.  To many librarians, this supports the core value of information to the people.  The tape was purchased and it should be available to users.  If it is damaged, its availability is compromised; therefore, the reproduction makes sense.  To the copyright holder, and indeed likely under the statute, this is an infringement of their reproduction right, although one might be able to make a fair use argument for such reproduction.  Video producers may grant permission for such duplication or they may charge for the right.

            The Term Extension Act added another subsection to the Act, a new section 108(h).[133]  This section permits a library or a nonprofit educational institution, during the last 20 years of a published work's term, to reproduce, distribute, display or perform in either facsimile or digital form, a copy of a work for purposes of preservation, scholarship or research.  In order to do this, however, the library must by reasonable investigation determine that none of the following factors exists: (1) the work is subject to normal commercial exploitation; (2) a copy can be obtained at a reasonable price;[134] (3) the copyright owner provides notice that neither of the above conditions applies according to regulations promulgated by the Register of Copyrights.  Further, the exemption provided by this subsection does not apply to any subsequent uses by users other than that library.[135]  Finally, when a digital copy is made as the preservation copy, there is no restriction that it be used only within the premises of the library.

            Because of both the age of the material and the scope of the conditions that must be satisfied, this subsection is of limited value to many libraries.  It is likely that the only institutions that will take advantage of this subsection are large academic research libraries.  This subsection applies only to works that are already at least 50 years old and probably much older, depending on how long the author lives after producing the work, and thus demand for the work likely has already declined or ceased entirely.  The purpose of this amendment was to ameliorate the effect of term extension on libraries and library preservation.  Libraries and archives are grateful for the expansions of the preservation sections of the Act; however, the new limitations may make those sections unworkable for all but the largest academic and research libraries.

            Libraries view as one of their missions the preservation of the world's knowledge and cultural artifacts.  The library exemption as amended deals fairly well with preserving materials that were not originally in digital format.  Preserving electronic information is more problematic, however, and many digital works simply are not being preserved either by the publisher or by third parties such as libraries.  Even when a library signs a license agreement that gives users access to a work, the library may not have the right to preserve it in any way.  There is great concern about the impact of this on the cultural record and on what records will be available to researchers in the future.[136]

            Because digital works are generally licensed rather than sold to libraries and other users, there really is no mechanism for preservation.  Libraries are concerned because licensed works do not provide a permanent copy.  If either party terminates the license agreement, the library is left with nothing.  But when the subscription to a print journal is terminated or the journal ceases publication, the library still possesses the volumes covered by the subscription period.  This is not true for licensed digital works.  Libraries are beginning to negotiate for retention of the electronic product at the end of the license period, but this too may prove difficult as technology chances over time.  The library may be able to retain the work in electronic format, but it may not be able to access the work and use it.  Even if the library acquires the right to convert the work to newer platforms, it may just not be worth the effort to accomplish the conversion, especially for highly technical and scholarly works with a limited audience.  Law libraries have reported purchasing some CD-ROM products, which included a code that made them unreadable after a certain date.  The purchase agreement did not mention any expiration date at all, nor was there any actual notice to anyone that they would expire and become unusable.[137]  Clearly, this causes conflict between publishers and libraries.  The same is proving true of works distributed on the web.  Some journals are available on the web for only 45 days because the publisher does not view the website as an archive.  The text is simply removed from the web after a certain period.  Thus, to ensure continuing access, the library would have to print out the journal and bind it or reproduce it as a digital file.[138]

D. COPIES FOR USERS

            The sections of the Act dealing with reproducing copies for users were not amended by the DMCA.  However, many of the problems between publishers and librarians arise under sections 108(d), (e) and (g) that concern providing copies to users and relate to values conflicts.  Use of the term "document delivery" to encompass all of the activities that a library performs to provide copies in response to user requests has caused some difficulties with the publishing community primarily because of commercial document delivery services. which must pay royalties for this activity.  A library, however, may simply call all activities that provide works to users as document delivery, such as delivering the original volume, obtaining original volumes for the patron through interlibrary loan, making single copies of articles from its collection in response to a user request, getting a reproduction via interlibrary loan, obtaining copies from an authorized document delivery service[139] and providing copies at the request of external users.[140]  Because of differing values, the groups have very different views of these activities.

            Section 108(d) states that the section's exemptions from a copyright holder's rights of reproduction and distribution apply when the user requests no more than one article from a periodical issue or one chapter from a book or other collective work.[141]  The single article from a journal issue restriction has been a problem for some libraries when the user requests more than one article from an issue or even a copy of an entire symposium issue of a journal.  Libraries, however, have learned to deal with this by either restricting its copying to one article per periodical issue or by paying royalties for copying more than one article in the journal issue for an individual user.  Copies made under section 108(d) must become the property of the user and the library must have no notice that the copy will be used other than for typical fair use purposes such as private study, scholarship or research.  Additionally, the library must place on the order form and on a sign located where the orders are placed, the Register's warning:[142]

The copyright law of the United States (Title 17, United States Code) governs the making of photocopies or other reproductions of copyrighted material.  Under certain conditions specified in the law, libraries and archives are authorized to furnish a photocopy or other reproduction.  One of these specific conditions is that the photocopy or reproduction is not to be "used for any purpose other than private study, scholarship, or research." If a user makes a request for, or later uses, a photocopy or reproduction for purposes in excess of "fair use," that user may be liable for copyright infringement.  This institution reserves the right to refuse to accept a copying order if, in its judgment, fulfillment of the order would involve violation of copyright law.[143]
          Today, libraries need to consider modem ways to provide this warning in advance of providing copies to users.  For example, if the library receives the request via email or the web, then a sign at a physical location in the library is not sufficient, and instead, the library should forward an email warning before providing the copy of the article to a user or include the warning as a part of the email or web-based request system.[144]

          Section 108(g) describes further conditions relating to the reproduction for users conducted under section 108(d) and places other requirements on the library that is making the copy.  For example, the reproduction and distribution rights under this section extend to "isolated and unrelated reproduction and distribution of a single copy."[145]  This is in contrast to systematic copying described below.  The iO8(d) exemption also applies to copies of the same material on separate occasions.[146]  Therefore, the library is not required to retain internal records to determine which items someone else has requested.  The fact that over time, multiple users request a copy of the same item is not a problem.  In other words, each user is treated as an individual.

          On the other hand, the rights of reproduction and distribution granted under section 108(d) do not apply if the library or its employees is “aware or has substantial reason to believe that it is engaging in the related or concerted reproduction or distribution of multiple copies of materials described in subsection (d)."[147]  Related or concerted reproduction has never been defined by a court.  For example, if a user requests multiple articles from a journal issue and the library refuses to copy more than one article due to the restriction of one article per issue for copying under section 108(d), the user could come back each day and request another article until she has received the entire issue.  If the library were aware that it was doing such copying in contravention of the statute, it should refuse to make the copies or it should not treat those copies as exempted under the library exemption and instead pay royalties for them.

            Similarly, section 108(g)(1) does not exempt the library if it engages in systematic reproduction of single or multiple copies of portions of works described in section 108(d).[148]  Systematic copying has not been defined by a court, but cases have held that cover-to-cover copying of commercially-produced newsletters in multiple copies was systematic and was not fair use.  Two for-profit entities and one nonprofit trade association have been sued for such activity.  Although the earlier case settled,[149]Pasha Publications, Inc. v. Enmark Gas Corp.[150] was a case involving another for-profit company.  The library subscribed to both the print and fax editions of the newsletter, Gas Daily, and when the company received each version, copies were reproduced and distributed to employees.  The court held that such activity was not fair use and that the company had infringed the publisher's copyright.[151]  Television Digest, Inc. v. U.S. Telephone Association[152] was a similar case except that the plaintiff, U.S. Telephone Association was a nonprofit trade association that copied the newsletter Communications Daily for distribution to its members.  The court held that the plaintiff's nonprofit status was immaterial to a finding of liability for infringement because newsletter copying is not fair use regardless of whether the copying entity is for-profit or nonprofit.[153]

            Systematic single copying has not been defined by a court except for newsletter copying.  Many libraries reproduce tables of contents of journals and route them to users, and this could be viewed as systematic especially if the table of contents pages contain more than bibliographic data such as abstracts of the articles.  Clearly, it is more systematic if the library then permits the user to return the reproductions of table of contents pages with items marked to be copied by the library for the user.  Publishers are likely to view such copying as systematic absent a license to do so.  Systematic single copying also could include selective dissemination of information, as when librarians watch for all articles, chapters, etc., dealing with a particular subject and then reproduce copies of those items without a specific request for that item from the user.

            Section 108(e) provides an exemption that permits libraries to reproduce an entire work or a substantial portion thereof if certain conditions are met.  First, the library must conduct a reasonable investigation to determine that a copy cannot be obtained at a fair price.[154]  The legislative history indicates that normally this would require consulting commonly known U.S. trade sources such as wholesalers, retailers, jobbers, etc., contacting the publisher or author, if known, or using an authorized reproducing service, i.e., one that has permission from the copyright owner to reproduce the entire work.[155]  Unlike section 108(c), however, this section even requires a library to search for a copy of the work on the used book market.  If such an investigation turns up no copy of a work at a fair price, then the library may reproduce a copy of it for a user.  Then the three requirements from section 108(d) also must be met: (1) the copy must become the property of the user; (2) the library must have no notice that the copy will be used for other than scholarship, research, teaching, etc.; and (3) the library must provide the user with the Register's warning in advance of providing the copy.[156]

            Interlibrary loan (ILL) is a time-honored tradition in libraries, but it too reflects the values conflict.  To librarians, the evolution of interlibrary Ioan makes a great deal of sense; from the days of lending the original work with its accompanying mailing costs, wear and tear to the original volume, etc., to utilizing modern technology to reproduce small portions of these works that a researcher might request through ILL.  Each year there are still hundreds of thousands of loans of original works through ILL.  But few libraries today lend a bound periodical volume when instead they can reproduce a copy of the one article needed and provide it through interlibrary loan. To librarians, the request is simply the same thing.  When the original volume is loaned to a user, the patron gets the work.  When the work is photocopied, the patron still gets the needed work. Instead of focusing on the end use made of the work by the patron, a publisher or other copyright holder objects to the intermediate step of copying.  To librarians, the jump from providing the original work to sending photocopies to satisfy ILL requests was a small one.  Publishers view it quite differently.  Several years ago publishers began to be particularly concerned about the use of fax technology to provide copies rather than the photocopier, even though certainly it is also a technological copying method.[157]  This objection included interlibrary loan as well as classic document delivery.  Somehow, using the Ariel system for providing interlibrary loan copies, even though it is based on fax technology seemed threatening.[158]

            In the broadest sense interlibrary loan (ILL) is a type of document delivery.  Traditionally, however, ILL is a library-to-library transaction, although the newer ILL systems that provide copies directly to end-users blur this distinction somewhat.  Publishers have claimed that ILL using digital technologies is systematic copying, but the legislative history disagrees.[159]  Publishers have also suggested that if the library charges for an ILL transaction, that fee charged creates a commercial advantage for the library.[160]  Librarians disagree.  Most libraries that charge for ILL transactions simply use the fees to cover a small portion of the copying, mailing, and staff costs.  Very few libraries conduct ILL operations even to provide cost recovery, much less to make a profit, thus it is unlikely that a court would view ILL fees as providing any commercial advantage for the library.

            ILL is permitted under the statutory proviso that states:

[n]othing in this clause prevents a library or archives from participating in interlibrary arrangements that do not have, as their purpose or effect, that the library or archives receiving such copies or phonorecords for distribution does so in such aggregate quantities as to substitute for a subscription to or purchase of such work.[161]
            The CONTU[162] interlibrary loan guidelines[163] then specify what constitutes such aggregate quantities to substitute for a subscription to or purchase of a work.  The guidelines state that each year a borrowing library may make five requests from a periodical title going back over the most recent five years (60 months), but the guidelines take no position on materials older than five years.  If the library either owns the title but it is missing from its collection, or if the title is on order, the library does not count the ILL copy in its suggestion of five.  If the work is not a periodical, the library may make five requests per year for the entire life of the copyright.  The borrowing library must maintain records for three calendar years and must certify that the request conforms to the guidelines.  The lending library's responsibility is to require a certification that the request conforms to the guidelines and not to fill requests that clearly violate the guidelines.  There is no record keeping responsibility on the lending library, however.[164]

            As libraries have been forced to cancel expensive journal titles because of escalating costs, many are relying on both ILL and document delivery to provide access to materials for their users.  In fact, today academic libraries are often members of the Copyright Clearance Center and directly pay royalties for ILL copies beyond the suggestion of five or, as an alternative, obtain the needed copies from a document delivery service.[165]  Libraries may determine that the better alternative is to order the copies for articles beyond the five permitted in the guidelines from an authorized document delivery service.[166]  The decision as to the route to pursue is based most often on the need for speed, the charges of the document delivery service, and the like.  Because libraries are now using both commercial and noncommercial document delivery as well as traditional ILL, these concepts often are blurred since the end result for the requesting library is the same: the user receives copies of requested materials, and royalties are paid for copies in excess of the ILL guidelines.[167]

            More than once during the Conference on Fair Use, publishers' representatives stated that they were determined to eliminate ILL in the digital environment.[168]  Clearly, there is a fear of lost sales, etc., on the part of copyright entrepreneurs, which certainly is a core value to publishers.  If ILL were eliminated, however, librarians believe that serious scholarship and research would be severely hurt, which impacts a librarian core value.  Publishers then proposed that for digital works, the CONTU guidelines be inapplicable or, at a minimum, turned around so that the suggestion of five would apply to the lending rather than to the borrowing library.  Not surprisingly, this was not acceptable to librarians since all of the ILL philosophy, and indeed the CONTU guidelines themselves place the burden on the requesting, i.e., borrowing, library.  Recent license agreements for electronic journals have led to this outcome, however.  Some licenses for full-text journals limit the number of times that the licensee may lend to other libraries from that journal, which puts the burden for record keeping, etc., on the lending library rather than on the borrowing library.  This is additional evidence of the values conflict between librarians and publishers.

E. ELECTRONIC COPIES FOR USERS

            Section 108, like the remainder of the Copyright Act, was said to be technology neutral when it was enacted, and librarians believe that they may provide digital copies to users as well as photocopies if they follow the remainder of the requirements in the Act.  Publishers and producers have often stated that libraries are not permitted to provide digitized copies under the library exemption.  They have also said that photocopying, and not scanning, was what was intended in the 1976 Act.[169]  Certainly, in 1976, the known reproduction technology was photocopying, but Congress intentionally wanted to encompass new technology as it developed.  Some publishers' concerns about digital copying may relate back to the fear of loss of control of their works mentioned earlier.  Based on the background and understanding of how important ILL is in satisfying the librarians' core value of information to the people, it is easy to understand how upsetting it was to librarians to hear during the Conference on Fair Use from publishers that they wanted to eliminate ILL in the digital environment.[170]

            One could argue that adding the word "digital" to the preservation subsections means that it is also contemplated for the other subsections; or one could make exactly the opposite argument.  The matter has not been litigated.  Clearly, if a library is going to use digital means to provide copies for users, it may not retain the digital image for reuse.  Instead, it must treat scanning just as it did photocopying, e.g., as a "pass-through" activity.  Prior to enactment of the DMCA, the Association of American Publishers stated its express disapproval of scanning as a method of providing copies of documents.[171]  As stated earlier, to librarians, the move to paper photocopies and digital copies for document delivery and ILL was an insignificant technological chance.  To a copyright holder, the jump was significant because of both loss of control and the fact that copies reproduced from the digital copy are perfect copies.  Librarians, however, simply look at it as providing information.  Copy quality for textual material is immaterial to a librarian as long as it is readable, i.e., usable.[172]

F. ELECTRONIC RESERVES

            Publishers and librarians have disagreed quite vigorously over electronic reserves.  To date, however, there has been no litigation, nor even a reported cease and desist letter, over electronic reserves.  Traditionally, library reserve collections contained materials such as restricted circulation collections of original volumes, journals, etc.  After the photocopier arrived in libraries, libraries quickly adopted photocopying to reproduce copies of articles, book chapters and the like for the reserve collection so that the original work would not be removed from the general collection.[173]  In 1982, the American Library Association developed its Model Policy[174] with guidelines or suggestions for reserves.  This policy recognized that libraries should be able to reproduce articles, chapters, etc., for reserve under conditions similar to those for the Guidelines on Multiple Copying for Classroom Use.[175]  There are also restrictions, such as one semester use without permission, balancing the number of copies a library might make with the needs of the class, what else is assigned for the time period and how quickly it must be read.[176]  There has been no litigation over the ALA Model Policy and, in fact, little comment about the policy from the publishing community despite the fact that these were not negotiated guidelines.[177]  This began to change when libraries started implementing electronic reserve systems.

            Converting photocopy reserves to electronic format makes absolute sense to librarians - they simply see no difference in photocopying articles, book chapters and the like for traditional reserves and in digitizing these same works for electronic reserves.  The same guidelines can apply:  it is simply the delivery of the material that is different.  But a core value - information to the people - is still being followed.  Publishers see considerable difference and have objected to the creation of electronic reserve collections, thus following one of their own core values:  loss of revenue and perhaps loss of control cannot be tolerated without reasonable compensation.  The whole point of electronic reserves is to make the material available to users from outside the premises of the library.  E-reserves have the added benefit of freeing shelf space in usually cramped reserve rooms, preventing deterioration of photocopies (which often have to be recopied several times in order to keep a usable copy in the reserve collection), preventing theft of the reserve item, making record keeping, easier, and tracking use, all of which makes it very attractive to librarians.

            Some libraries request permission for every item placed on electronic reserves and pay royalties when requested.[178]  Even when a library seeks permission and is willing to pay royalties, however, some publishers still refuse to allow their works to be included in an electronic reserve collection.  Because the permission process for e-reserves is so cumbersome and publishers sometime steadfastly refuse to grant permission, some libraries do not even seek permission to create e-reserves, and others that do seek permission find the process very difficult to manage.

            Conflicting values are readily evident in this area.  During the CONFU process a working group tried to develop electronic reserve guidelines.  The draft guidelines[179] were rejected by content providers who found them too lenient and by librarians who thought them too restrictive.  Based on the ALA Model Policy, the guidelines would have allowed libraries to digitize materials for electronic reserve collections under conditions similar to those permitted in the ALA Model Policy.  Libraries at academic institutions could have made digitized materials for reserve available over the campus network, and students could read the materials on the screen, print a copy, or download a copy.  Access to the material, however, would have been restricted to students enrolled in a course offered by the institution.  The guidelines also suggested that the e-reserve system alert users that they were not to distribute further the offered materials electronically.  In order to avoid creating undue demand for the digital copies of works, the guidelines suggested that the library catalog the items only at the same level of specificity as it cataloged other items in the online catalog.  For most libraries this would have meant cataloging at the journal title level and not at the individual article level.  Thus, the reserve items would have to be listed under the faculty member's name, the course number, and the course name rather than directly under the author and title of the article.  Finally, the guidelines would have permitted a library to retain scanned images after use in the first academic term of use if the items were not available to users via the system but instead were just retained while the library and the faculty member determined whether the items were needed again.  Then the library would be in the permission request process.  If the items were then to be used in a subsequent term, the library could move them back to an accessible part of the server and avoid having to re-digitize the work.[180]

            One could argue that neither group was ready to deal with guidelines for electronic reserves.  The fact that both groups found the guidelines unacceptable owners because they were too permissive, and users because they were too restrictive - could lead one to conclude that the guidelines achieved the appropriate balance.  Nonetheless, the guidelines did not become part of the final CONFU Report.[181]  Nor has there been any litigation involving any of the huge number of academic libraries that have implemented electronic reserve collections.

G. PRACTICES IN PARTICULAR TYPES OF LIBRARIES

            There are some library practices that are not as standard as those already discussed, but which are prevalent in specific types of libraries: digitizing slide collections in art, architecture, botany and medical libraries and audio streaming of sound recordings in music libraries.  These practices also reflect the values conflict.

          Art, architecture, and other types of libraries that maintain slide collections have been engaged in projects to digitize their collections to facilitate use of the slides for teaching and research.  The central question they face is whether the digitization of slides is a fair use or whether it infringes the reproduction and distribution rights of the copyright holders in the photograph.  The values of copyright holders and librarians clearly conflict here.  The source of the slides in the library collection varies.  For example, some of the slides in the collection are purchased, commercially-produced slides, whereas others are taken by faculty members on visits to distant sites, museums and the like.  Still other slides are reproduced from photographs in books.  Reproducing faculty-produced slides in digital form is less likely to be problematic since faculty members donate the slides to the library with the intention that students and faculty in the institution will use them.  Further, obtaining permission from the faculty member to convert the slide to digital format should be relatively easy.  If the slides are commercially produced, however, the copyright owner is not likely to agree that digitizing the slides is a fair use.  Some university attorneys posit that if the slide is available for purchase in digital format, the library should acquire the digital copy from the copyright holder.[182]  If it is not available, then they believe that digitizing the slides for use in the classroom and for students to consult during the semester is a permissible fair use.[183]

            Whether digitizing library slide collections is fair use or is copyright infringement may actually depend on whether the digitized slides are high-quality and on whether the slide may be used to reproduce the image or if they are merely thumbnail images used as a catalog of the slide collection.  Many art and architecture librarians certainly believe the latter is a fair use.  A recent case, Kelly v. Arriba Soft Corp.,[184] held that use of copyrighted images by a visual search engine is a copyright violation but that such use may be justified as a fair use.[185]  Based on this case, it may be argued that a library in a nonprofit educational institution that digitizes its slide collection for use as a catalog is protected by fair use.

            Some librarians argue that digitizing any slides for use in nonprofit educational institutions should be a fair use, but case law on this issue does not exist.  Often it . is impossible for the library to determine the source of an individual image since slides from all sources have been mixed together.  Further, librarians have frequently removed the cardboard folder from around the slide in an effort to save space in cramped slide collections.  Most librarians do agree that the slides should not generally be available on the web but should be available only to students enrolled in a class in which the slides are to be used.  Slides often are available on a web server only for the semester and then are removed.[186]  Public libraries that house large slide collections are also engaged in digitization projects or are considering them.  It is less clear whether their activity would be fair use as the purpose is not to support a particular course in a nonprofit educational institution but to permit broader access to the slides.  As more museums such as the Smithsonian, the Getty, and the Metropolitan Museum of Art digitize their slide collections and make them available, it may be less necessary for libraries to digitize their own collections.  Instead, faculty and students may be able rely on the publicly available collections, and the faculty members may simply link to those slides for displaying them in class and making them available to their students for consultation throughout the class term.

            Music libraries in educational institutions have long housed reserve collections consisting of audiotapes reproduced from sound recordings.  Libraries produced the tapes from library copies of sound recordings at the request of individual instructors.  Students then were assigned to come into the music library to listen to the copy of the recording.  Most often the library even made multiple copies of the tapes to meet the needs of the class assigned to listen to the recordings.  Whether this was infringement under the statute is problematic, but it was never litigated.  The Guidelines on the Educational Use of Music[187] certainly do not mention this broad practice.  Their only mention of reproducing sound recording is the statement that copies of small portions of sound recordings could be made for the purpose of constructing aural exercises.[188]  Today, many of these libraries are using streaming audio to provide the same access that the tapes provided.  Does streaming audio make a copy or multiple copies of works?  And if so, does it constitute copyright infringement?  The Music Library Association has taken the official position that it does not, since students are permitted to listen to the work but not to make copies.[189]  Copyright holders likely feel that this is infringement of their reproduction and perhaps even performance rights, but there has been no litigation over this issue.

H. COOPERATIVE COLLECTION DEVELOPMENT

            Cooperative collection development is another traditional library practice that has been influenced by the digital environment.  Cooperative collection development has existed for years, and in conjunction with ILL, can benefit both the libraries and publishers.  To libraries, cooperative purchasing can make it possible for the library to acquire materials that ordinarily would be outside the budget capabilities of the individual library.  Thus, it furthers the value of information to the people.  To publishers, cooperative collection development may mean that one or more copies of expensive sets are sold to one library in the cooperative, which would not have been sold to any library on its own.  On the other hand, publishers could take the position that cooperation presents multiple lost sales that could be made to each institution in the cooperative.

            For digital materials, in order to obtain better licensing terms, libraries have banded together to sign joint licenses for electronic journals, and the like.  The only impact on copyright is that this forces libraries either to participate in the cooperative licensing or to forego access.  This would not have been true in the analog world where ILL within the CONTU guidelines would provide some access, and members of a consortium could borrow items from each other including photocopies of articles when adhering to the CONTU guidelines.  Now, however, some electronic journal licenses restrict the ability of the library to use the journal to satisfy ILL requests.  This license restriction certainly reflects conflicting values; libraries desire to make materials widely available within the confines of the CONTU guidelines, while publishers want the license to restrict access to individuals within the institution.
 


IV.  ACCESS TO ELECTRONIC PRODUCTS

A.  LICENSES

            Libraries have been signing licenses for many years - this is riot new in the digital age.  Many traditional printed works have license agreements with them, but the use of licensed products has been increasing with the advent of works in electronic format.  Traditionally, these have been negotiated licenses that benefit both content providers and users, since libraries often can obtain terms that make the works available under conditions that meet the specific needs of its users, and publishers are able to bargain for price and other conditions that benefit them.  Section 108(f)(4) states that nothing affects any contractual obligations incurred by a library when it obtains a copy of a work in its collection.  Thus, libraries are bound by the license agreements they sign.

            Today, however, publishers are insisting on more "take it or leave it" licenses,[190] which threaten access for users and thus conflict with a core value of librarians.  Also, license agreements now often have very restrictive terms, such as limiting access to persons either physically located on the campus or who have access through the campus domain name.  This does not work well for institutions that have a large number of off-campus students either in distance learning courses or in more traditional residency and internship programs.  Restrictions on using licensed products for interlibrary loan have already been mentioned.  The Uniform Computer Information Transactions Act (UCITA), currently under discussion for passage in the individual states,[191] if passed, likely will make the licensing issue even more difficult for libraries as the ability to negotiate may be subsumed into standard licensing terms for many products.[192]

            There are many questions regarding licenses that libraries sign, which could then be governed by UCITA.  An important question is who is authorized to "sign" a click-on license for a library that will commit it to the terms of the agreement.  It is easy to say that the library director and his authorized agents have signature authority, but consider law firm libraries.  If a partner in the firm clicks on a license, is it not likely that the firm (and specifically the library) will be bound by that license?  While book and journal purchases most often have to go through the library in a law firm, when a user is on the Internet, it is unlikely that she will remember not to click on a license for a product that she wants to use immediately.  Another unanswered question is whether a library that has signed a license agreement for access to an electronic product has done anything that signs away the fair use rights or privileges of library users.  Is there a fair use right of access?[193]  The consequences of moving to a pay-per-view system may indeed mean that although users have fair use rights of access, publishers can require waiver of these rights.

B. INDEXING AND ABSTRACTING DIGITAL WORKS

            The scholarly community has long relied on bibliographic information and compilations of bibliographic citations first to identify and then to provide access to scholarly and scientific literature.  Bibliographies were published by libraries, scholars and organizations.  Periodical indexes were also published by third parties that often were commercial in nature, but not always.  Thus, libraries, scholars, and copyright holders could be assured that such indexing and abstracting services were being produced to serve the scholarly community, to facilitate the use of copyrighted works, and to make sure that anyone interested had some way to identify whether the information existed in a published format and where it might be found.  The development of full-text journals in electronic format offered yet greater access.  Not only would the work be indexed and abstracted by a third-party, but the full-text of the work could then be retrieved from a large database or from subscriptions to online Journals.

            Beginning in the mid-1990s, the publishing community began to consider how to identify and track these digital works using some sort of digital identifier.  The idea of unique identifiers is not new for the electronic environment.  For years libraries have relied on International Standard Book Numbers (ISBNs) and International Standard Serials Numbers (ISSNS) to identify books and serials.  The ISBN is a unique 10-digit number that is assigned to books prior to publication that helps track them through the publication and sales process.[194]  Begun in Great Britain, this system is now used worldwide for books and other monographic works.[195]  The number stays with the book or serial regardless of whether the publisher sells the copyright in the work, goes out of business, etc.  Each version of a book gets a unique ISBN so there is no confusion between the hardback version, the paperback, and foreign language translations.[196]  In the United States the numbers are assigned by R.R. Bowker, and in other countries by a national book numbering agency.  The administration of the international system is handled by the International ISBN Agency in Berlin.[197]  The use of ISBNs has assisted business communications among publishers, bookstores and libraries.  Further, libraries use ISBNs and ISSNs to manage their own internal processes such as serials check-in and the like.[198]  Now content providers want to create a new identification system for the electronic world.

            The Association of American Publishers created a committee in 1994 to design a system that would protect copyright while enabling electronic transactions.  The result was a study that recommended guidelines on an industry-wide standard identifier, which would assist in controlling electronic transactions and other operations.  The goal was to design a system of persistent identifiers that would be interoperable between publishers and their clients and which would serve as the basis of a rights and permissions management system for publishers.[199]  The committee recognized problems with Internet addresses and uniform resource locators (URLs), which are not object identifiers but denote only the location of objects.  There are significant problems with URLs; for example, URLs disappear, and they do not specify content but simply location on a server, which can change.[200]  Publishers propose that the "digital object identifier" (DOI) replace the URL for digital works.  The goal of DOls is to create identifiers that would stay with the object throughout its life regardless of whether the publisher sells the copyright in the work, merges with another publisher or goes out of business.[201]  Further, the DOI would stay the same regardless of the work’s location on the web.[202]

            The DOI consists of two parts: a prefix that contains directory information and the registration number.  The DOI both specifies the location of the publisher's website where the material resides and identifies the material to the public.  An example of a typical DOI is 10.1000/123456789. The portion before the slash is the prefix, which is administered by the DOI Foundation, a not-for-profit organization.[203] Publishers purchase these prefixes.  The part after the slash, the suffix, is a unique character string that identifies the specific digital object.  The number is currently limited to 128 characters with at least 40 character substitutions (letters, symbols, numbers) allowed for each place in the DOI code.[204]  They are basically dumb numbers with any necessary intelligence carried in the metadata.[205]

          The DOI Foundation manages the registration system.  Publishers purchase each unique prefix from the Foundation for $1000, and eventually there will also be an annual fee for each DOI a publisher registers on the DOI server.  The fee will support maintenance of the DOI server.  DOls can be used not only for textual digital objects but also for music, video, and the like.  The annual cost will increase as publishers move from using DOls to identify large works, such as books, to using DOIs to identify increasingly smaller works, such as individual images in a collection, encyclopedia entries, etc.[206]

          At first blush, all of this appears to be a great benefit to everyone - simply substitute the DOI for other unique identifiers, such as URLs or ISBNS.  In fact, with a persistent identifier, some of the problems with URLs disappear.  Certainly, DOls will be used to track copyright management information and transactions, but there are other uses that may threaten the neutrality of bibliographic compilations, indexing and abstracting services that libraries and researchers enjoy today.  Bibliographic data are the current identifiers that most scholars use to identify resources needed for research, to locate these materials in libraries or on the web, and then to cite the works used so other scholars can find them.  Bibliographic data are factual in nature and thus each individual bibliographic record is not eligible for copyright protection.  On the other hand, collections of bibliographic citations that do not represent a total universe of data may be eligible for copyright protection.[207]  Even though content often is copyrighted and publishers claim proprietary rights in the content, the abstracting and indexing of these works has tended to be separate.  Indexes traditionally have been published by third party nonprofit and for-profit entities.  For example, the H.W. Wilson company publishes most of the indexes of periodical literature including the Index to Legal Periodicals and the Reader's Guide to Periodical Literature.  These indexes are proprietary products, the originality of which may be found in the arrangement or indexing (from the creation of the subject headings), but the ownership of the copyrights in these publications is not in the hands of content owners but rather in a third party indexer.  The health sciences Index Medicus and its later electronic descendant MedLine were created by a government third party, the National Library of Medicine.  Thus, control of the indexing and abstracting services, and the access to journal literature that they offer, lies not in the hands of the publishers who created the content and own the copyright in the indexed journals.[208]

            This is not necessarily true with the DOI system or indexing and abstracting systems that will utilize the DOls.  Publishers are licensing each other to index and use their DOIs so that basically what is provided is hypertext.  Publishers will not allow other users into their systems, so they are providing not only the content that is licensed for use but now are creating the indexing to the content, which also will be licensed.  Thus, researchers may be locked out of the tools to determine even if certain content exists.  In November 1999, 12 major scientific and technical publishers announced a "collaborative, innovative market-driven reference-linking, initiative" touted as having, the potential to change the wav scientists use the Internet to conduct online research.[209]  Initially, it was proposed, approximately three million articles from thousands of journals will be linked, followed by one-half million more linked each year thereafter.  The publishers believe that this will enhance browsing and connecting between logically related articles with just a few clicks.  The reference-linking service will be run from a central facility and managed by an elected Board, and will operate in cooperation with the DOI Foundation.  It will contain a limited set of metadata, allowing the journal content and links to remain distributed at publishers' sites.  Each publisher will set its own access standards, determining what content is available to a researcher following a link, such as access to full text or only to an abstract by subscription, document delivery or pay-for-view.[210]

            This should be of great concern to librarians, since scholars will not be able even to determine whether a particular paper or article exists unless they have a license to use the publishers' system or access through a library license that provides access.  There will no Ionger be publications of abstracts and indexes by third party publishers, as the linking of DOls among publishers will subsume this activity.  This could potentially chance the nature of scholarly research, and significantly impede research and scholarship.  Not only will licensing control access, but the same publisher will control information about the existence or the work and any summary of it.

            Libraries and library organizations were not involved in the development of the DOI system or in plans for its implementation.  In May 1999 there was an announcement, however, that OCLC had joined the DOI Foundation.[211]  The Foundation also approached the Coalition for Networked Information to work with it to help increase the general understanding on the part of the library community and to make recommendations on how it can be more useful to the entire bibliographic community.[212]
 
 

V.   THE WEB AND INTERNET SERVICES

            As librarians use the web to obtain information, they will be increasingly governed by licensing agreements, even as libraries also use the web to provide information and share information.  Librarians see this as a new way to make information available to people, and libraries as institutions have something important to contribute.  Treating the information universe as property is problematic.  Librarians see information as something that should be shared.  Information is not information until it is disseminated and used.  The often repeated statement that information is power is not really true.  Information is not power until that information is used.[213]

            Libraries were the first consumers of books and other materials. and supplied the public with information.  Now that information has become increasingly valuable in this post-industrial society the production of information products has become a big business.  Producers and vendors have more control over information in electronic form than in analog form because it is held in a central source and is instantly available upon demand.  Thus, electronic technology and its corporate owners may hold consumers hostage as they never could in the pre-digital age.[214]  Concomitantly, the Internet is democratizing the distribution, publishing, and consumption of information.  The information industry fears easy access will lead to loss of control and will threaten not only their copyrights but also the financial investment in the development of these products.  Librarians worry that fair use and free access are threatened by this more stringent regulation on the part of copyright holders.[215]  To librarians, the Internet holds great promise for making materials available in ways never before envisioned.  No Ionger must a researcher visit a particular library in a remote location to use unique publications held only by library.  By putting these works on the web, scholars all over the world will have access to them from their homes and offices.  This corresponds with a librarian core value of information to the people.  Copyright holders, on the other hand, see this same activity as a threat to their economic health.  Such a direct conflict in values explains why librarians and content providers have such a difficult time talking to one another about copyright and the availability of copyrighted works in libraries and archives.

            Not only do libraries provide access to the Internet, they are providing Internet content.  A huge number of libraries now have a homepage.  A 1996 survey of public and academic libraries showed that 62% had homepages.[216]  Some libraries also answer reference questions online.  The Internet gives libraries the opportunity to expand their public relations and promote their services.  Digitization permits libraries to present their content along with sound and graphics and to reach a wider audience than just the local area.[217]

CONCLUSION

            The professional careers and status of librarians are based on their core values: information to the people, access to information, and the value of the public domain.  Questions about whether libraries will exist in the future strike fear in the hearts of librarians because they view what they do as eminently valuable to society.  Statements such as "there is no fair use in the digital environment" also threaten these values.  Because librarians' core values are altruistic in nature, they often believe that their hearts are good and true: what librarians do, they do for the public good.  Therefore, any use made of a copyrighted work for a user should be a fair use.  The primary goal librarians seek is to help people and provide them with appropriate information they need and want, not make money.[218]  Librarians also want to provide quality service to users.

            This makes it hard for librarians to accept that some of their activities may infringe when it comes to using copyrighted works to further these noble purposes.  There simply is a disconnect between the public-spirited goals of librarians and the private ownership notions of copyright.  The owners of copyrighted works understandably want to market their works in ways to maximize profits.  The public good that publishers and producers of copyrighted works produce is economic growth, which many librarians view as overt commercialism.

            In addition to this conflict in core values, both librarians and publishers and producers do not always understand copyright.  Both misstate the law and make overstatements about the horrors that will befall in the digital world.  Copyright holders overstate the law with positions such as there is no fair use in digital works.  To wit, warnings appearing in some printed works that "No copying, of this work whatsoever" is permitted are simply wrong.  Such warnings should be accurate and, if they are used at all, should include a statement about fair use.[219]  Are publishers trying to scare users into behavior that they want to control regardless of what the law permits?  Or do they really misunderstand the law?  Another recent example is found in the letter that the AAP sent to provosts of universities across the country.[220]  The letter purported to explain copyright law and what universities should do to educate their communities about copyright.  It pointedly failed to mention fair use, however, or that many activities in nonprofit educational institutions may be fair use.[221]

            Librarians often claim that all of their activities are covered under fair use rather than recognizing that the section 108 library exemption is the proper argument.  Like faculty and other users, they often say "I am a fair person, and I want to use the work, ergo, fair use." Frequently, librarians use the term "exempted under various sections of the Act" when they really are referring to the library exemption or the classroom exemption.[222]  Then, when librarians are talking to copyright lawyers and copyright holders, their misuse of terms causes considerable confusion.[223]  Additional confusion occurs when librarians fail to differentiate among the various types of copyrighted works.  It is critical for publishers and producers to know whether a work is a motion picture, a nondramatic literary work, or a graphic work.  To a librarian, all of these works convey information, so they are "informational works." To the extent that the Copyright Act recognizes the differences among types of works, this causes problems for librarians.

            In addition to misunderstanding the law, librarians as well as publishers and producers have been guilty of overstating problems and the horrors they will encounter if the law is changed.  Both have used the debates over the digital environment to try to expand their rights or positions.  Librarians seek to extend fair use even beyond that permitted in the analog world, while publishers attempt to reduce or eliminate fair use.  The DMCA, however, continues to provide exemptions for libraries.  For example, libraries are exempted from the prohibition against circumventing technological measures if the reason they do so is to determine whether to acquire the protected work.[224]

            An unusual part of the DMCA is found in section 1204, which states that nonprofit libraries, archives, and educational institutions are exempted from the criminal provisions for anti-circumvention or removal of copyright management information.  Subsection (b) states that neither the large fines nor federal prison terms wiII be assessed against libraries.  Note that the library will not go to jail - the statute does not say “librarian” but “libraries.”

            So, where does this recognition of the values conflict lead us?  The values of librarians and publishers/producers often conflict.  That conflict shapes the debate about the proper role of fair use guidelines and about amendments to the Act to facilitate movement into the digital environment for creators, publishers and users of copyrighted works.  Is there any way to compromise and reach common ground?[225]  Perhaps, but only if both groups can avoid overstatements and fear tactics.  If this happens, then perhaps it will be possible to return to the days when these groups actually talked with each other about how to accomplish each side's goals without unduly hampering the other's.  It will take a great deal of effort on both sides to return to this win/win strategy.


*    B.A 1967, M.L.S. 1968 Texas Woman’s University;  University of Houston J.D. 1973.  Director of the Law Library and Professor of Law, University of North Carolina.  She wishes to thank Wayne a. Wiegand, Peggy Hoon, Kenneth Crews and L. Ray Patterson for their assistance with this article.

Copyright © 2000 by Laura N. Gasaway.  This article is based upon a speech given by Professor Gasaway at the 2000 Horace S. Manges Lecture, delivered on March 7, 2000 at the Columbia University School of Law.

[1] U.S. CONST. Art. I, § 8, cl. 8 (2000).
[2] Neil Weinstock Netanel, Copyright and a Democratic Civil Society, 106 YALE L.J. 283, 285 (1996).
[3] The publishers’ values that are highlighted in this article are gleaned from the Association of American Publishers’ Industry Issues, at http://www.publishers.org/home/issues/index.htm (last visited Sept. 27, 2000) [hereinafter Industry Issues] and from my personal experiences as a law librarian working with publishers for three decades.
[4] As a librarian for over 30 years, the core values I identify are based on my own knowledge, experience and views of my profession even though I certainly do not speak for all librarians.
[5] In 1992, the Association of American Publishers issued its policy statement on document delivery, which offended many librarians.  Association of American Publishers, Statement of the AAP on Document Delivery, at http://www.publishers.org/home/about a/copy/statement.htm (last visited Sept. 27, 2000) [hereinafter AAP Document Delivery Paper].
[6] Association of American Publishers, AAP Mission Statement, at http://www.publishers.org/home/abouta/aapabout.html (last visited Sept. 27, 2000).
[7] Id.
[8] See Industry Issues, supra note 3.
[9] Id.
[10] See Association of American Publishers, Contractual Licensing, Technological Measures and Copyright Law, at http://www.publishers.org/home/abouta/copy/plicens.htm (last visited Sept. 27, 2000) (showing a use of these terms).
[11] The fair use doctrine is often referred to as the safety valve of copyright because it excuses behavior that otherwise would constitute infringement if certain factors weigh in favor of the defendant.  See Harper & Row Publ’g, Inc. v. Nation Enters., 471 U.S. 539, 555-60 (1985).  The four factors that are weighed are:  the purpose and character of the use; the nature of the copyrighted work; the amount and substantiality of the portion used in comparison with the work as a whole; and the market effect.  17 U.S.C. § 107 (2000).  A court evaluates the defendant’s activities based on these factors and makes a determination of whether the defendant use of the plaintiff’s copyrighted work is an unlawful infringement.  If one views the defendant’s activity as stealing or piracy, how can that activity ever be “fair?”  The very words characterize the behavior as criminal, even though most copyright infringement does not rise to the level of a crime.
[12] NATIONAL RESEARCH COUNCIL, COMPUTER SCIENCE AND TELECOMM. BD., THE DIGITAL DILEMMA:  INTELLECTUAL PROPERTY IN THE INFORMATION AGE 4 (2000) [hereinafter DIGITAL DILEMMA].
[13] Industry Issues, supra note 3.
[14] Id.
[15] Id.
[16] Association of American Publishers, AAP Agenda, at http://www.publishers.org/home/abouta/aapabout.htm (last visited Sept. 27, 2000).
[17] Association of American Publishers, Contractual Licensing, Technological Measures and Copyright Law, supra note 10.
[18] It seems to librarians and other users that efficient management and rapid response is not necessarily a core value.  See DIGITAL DILEMMA, supra note 12, at 66.
[19] Id. at 130-36, 214-15.
[20] During the Conference on Fair Use (CONFU) meetings, held between 1994-98, representatives of the Association of American Publishers made this statement in several subcommittee sessions on interlibrary loan in which I participated.  Actually, CONFU was initially called for in the Green Paper, the draft of INTELLECTUAL PROPERTY AND THE NATIONAL INFORMATION INFRASTRUCTURE:  PRELIMINARY REPORT OF THE WORKING GROUP ON INTELLECTUAL PROPERTY RIGHTS (1994) and CONFU was again called for in the White Paper (1995).  The call was specifically for a series of fair use conferences convened for the purpose of negotiating fair use guidelines.  Id. at 134.  CONFU held its first meeting in October 1994.  Three sets of guidelines were ultimately proposed by CONFU (visual image, distance learning, and multimedia) but none received wide acceptance.  The final meeting of CONFU was held May 19, 1998 and the final report was published in November 1998.  CONFERENCE ON FAIR USE, FINAL REPORT TO THE COMMISSIONER ON THE CONCLUSION OF THE CONFERENCE ON FAIR USE (1998) [hereinafter CONFU]. See also http://www.uspto.gov/web/offices/dcom/olia/confu/confurep.htm.
[21] For example, librarians hired to work for a commercial document delivery service often want to call copies that they provide to another library “interlibrary loans” when they are clearly commercial in nature, since the delivery service makes a profit on providing the copies.  Such librarians hold the same values that other librarians have concerning interlibrary loan as an exempted activity.  Since the document delivery service obtains the article from a library, copies it, and provides the article to another library, to librarians this may seem like interlibrary loan.  The commercial document delivery services’ activities as an intermediary, however, destroy the exemption for that copy as an interlibrary loan copy that might have been covered under the CONTU Interlibrary Loan Guidelines had the copy been requested by a nonprofit library directly from another nonprofit library.  For a discussion of the Interlibrary Loan Guidelines, see infra notes 157-68 and accompanying text.
[22]
[23] In American Geophysical Union v. Texaco, Inc., 60 F.3d 913 (2d Cir. 1995), the court held that the reproduction of single copies of articles from journals to which the Texaco library subscribed was not fair use
[24] 17 U.S.C. § 109(a) (2000).
[25] 17 U.S.C. § 108 (2000).
[26] See generally Wayne A. Wiegand, The Structure of LibrarianshipEssay on an Information Profession, Samuel Lazerow Memorial Lecture at Florida State University (November 23,1998) (forthcoming in 2003).
[27] See generally Jessica Litman, The Exclusive Right to Read, 13 CARDOZO ARTS & ENT. L.J. 29 (1994).
[28] See 17 U.S.C. § 108(d) (2000).
[29] 17 U.S.C. § 108(g)(2) (2000).
[30] Wiegand, supra note 26, at 12.
[31] Kelly McCollum, Publishers of On-Line Journals Plan to Link Millions of Science Footnotes, CHRON. HIGHER EDUC., (Nov. 17, 1997), available at http://chronicle.merit.edu/free/99/11/99111701t.htm.
[32] See infra notes 199-212 and accompanying text.
[33] DIGITAL DILEMMA, supra note 12, at 130-36, 214-15.  For an excellent discussion that supports personal copying as a right, see L. Ray Patterson and Stanley W. Lindberg, THE NATURE OF COPYRIGHT 193-96 (1991).  For an equally excellent but contrary view that there is no right for personal copying see Jane C. Ginsburg, Authors and Users in Copyright, 45 J. COPYRIGHT SOC’Y U.S.A. 1, 11-12 (1997).
[34] American Library Association Core Values Task Force, April 28, 2000, at http://www.ala.org/congress/corevalues/draft5.html (last visited Sept. 27, 2000).
[35] Id.
[36] Id.
[37] Id.
[38] Id.  The other core values identified that do not directly relate to copyright are:  (1) “Respect for the individuality and the diversity of all people.”  (2) “Freedom of all people to form, hold, and to express their own beliefs.  All people have the right to seek, to know and to find.”  (3) “Excellence in professional service to our communities.”  (4) “Formation of partnerships to advance these values.”  Id.
[39] Association of Research Libraries, Fair Use In the Electronic Age:  Serving The Public Interest, at http://arl.cni.org/info/frn/copy/fairuse.html (last visited Sept. 27, 2000).  The following library associations also adopted this statement:  The American Association of Law Libraries, American Library Association, Medical Library Association and Special Libraries Association.
[40] Id.
[41] Id.
[42] See INTELLECTUAL PROPERTY AND THE NATIONAL INFRASTRUCTURE:  REPORT OF THE WORKING GROUP IN INTELLECTUAL PROPERTY RIGHTS (1995).
[43] Association of Research Libraries, Intellectual Property:  An Association of Research Libraries Statement of Principles, at http://arl.cni.org/scomm/copyright/principles.html (last visited Sept. 27, 2000).
[44] Association of Research Libraries, The Keystone Principles, at http://www.arl.org/training/keystone.html (last visited Sept. 27, 2000) [hereinafter The Keystone Principles].
[45] Id. The other two principles are (a) the need for bias-free systems and for libraries to create these new systems and (b) to affirm the idea of the library as a nexus for learning and the sharing of knowledge.  One could argue that access to information is seriously jeopardized by the new anti-circumvention provision, 17 U.S.C. § 1201(a) (2000).
[46] See supra note 39 and accompanying text.
[47] As president of the Constitutional Convention, George Washington in explaining why legislative power over knowledge must be limited in a free society said, “Knowledge is, in every country, the surest basis of public happiness.”  Copyright Office Bull, No. 8, 115 (1905).
[48] U.S. CONST. Art. I, § 8, cl. 8.
[49] See Sonny Bono Copyright Term Extension Act, Pub. L. No. 105-298, 112 Stat. 2827 (1998) (codified at various sections of the Copyright Act).
[50] Wiegand, supra note 26, at 19.
[51] Id.
[52] William Eshelman, Serving the Public Good, in COALITIONS AND THE PUBLIC GOOD 103 (E.J. Josey, ed. 1987).
[53] Patrick Williams, THE AMERICAN PUBLIC LIBRARY AND THE PROBLEM OF PURPOSE 1 (1988).
[54] Id.  At 2.  There are library historians who disagree with the level of the contribution that Williams attributes to Vattemare.  See Letter from Wayne A. Wiegand, Professor, School of Library and Information Studies, University of Wisconsin-Madison, to Laura N. Gasaway, Professor, School of Law, University of North Carolina (May 26, 2000) (On file with author) [hereinafter Wiegand letter].
[55] Williams, supra note 53, at 5-6.
[56] Id. 7-8.
[57] Douglas Raber, LIBRARIANSHIP AND LEGITIMACY:  THE IDEOLOGY OF THE PUBLIC LIBRARY INQUIRY 69 (1997) (citing C. Dewitt Hardy, The Foundations of Library Government in Oliver Garceau, THE PUBLIC LIBRARY IN THE POLITICAL PROCESS 12-13 (1949)) [hereinafter Raber].
[58] Williams, supra note53, at 25-27.
[59] Id. At 33.
[60] John N. Berry III, The Public Good:  What Is it?  In LIBRARIES, COALITIONS AND THE PUBLIC GOOD 7 (E.J. Josey, ed. 1987) [hereinafter Berry].  Lighthouses are another example of a public good.  They save lives and cargoes, but there is no way to collect fees for the services the lighthouses provide.  Id.  (citing Paul Samuelson & William D. Nordhaus, ECONOMICS (12th ed. 1985)).  Other examples of the public good include roads, national defense, public support of pure science and public health.  The commodity costs no more to provide if for many than to one, and it does not get used up by the first consumer.  Id. at 8.
[61] Redmond Kathleen Molz and Phyllis Dain, CIVIC SPACE/CYBERSPACE:  THE AMERICAN PUBLIC LIBRARY IN THE INFORMATION AGE 4 (1999) [hereinafter Molz & Dain].
[62] Williams, supra note 53, at 27.
[63] Id. at 27, 29 (citing George S. Bobinski, Carnegie Libraries: Their History and Impact on American Public Library Development 14 (1969)).
[64] Id.
[65] Plummer Alston Jones, Jr., AMERICAN PUBLIC LIBRARY SERVICE TO THE IMMIGRANT COMMUNITY, 1876-1948: A BIOGRAPHICAL HISTORY OF THE MOVEMENT AND ITS LEADERS 75 (1991).
[66] Id. at 72
[67] Id.  at 76.  It is unclear when immigrants began to use public libraries as their main source of information and recreational reading or when librarians first recognized immigrants as a targeted service population.  Even before public libraries served immigrant populations, immigrants themselves recognized the importance of libraries and created their own social libraries.  Indeed, the collections of some of these immigrant libraries became the base of foreign language collection for the public libraries in the area.  Id. at 77.
[68] Id. at 96-101.
[69] Id. at 129.  During the last quarter of the 19th century and first quarter of the 20th, the public and librarians themselves seemed to find Americanization as an appropriate goal for public libraries.  The tactics used may have been questionable, but not the goals.  Id.
[70] Williams, supra note 53, at 32-33.
[71] Id. at 41.  In fact, Melvil Dewey had crafted a similar system in New York in the 1890s.  See Wayne A. Wiegand, IRRESPONSIBLE REFORMER:  A BIOGRAPHY OF MELVIL DEWEY 147 (1996).
[72] Williams, supra note 53, at 59
[73] 20 U.S.C. §§ 351-358 (1956).
[74] Raber, supra note 57 at 24.
[75] Id. at 37-41.
[76] Id. at 45-46 (citing memorandum “Study” from Carl Milam to Donald Young, Director, Social Science Research Council 3 (June 28, 1946)).
[77] Id. at 65.
[78] Id. at 67 (citing Oliver Garceau, THE PUBLIC LIBRARY IN THE POLITICAL PROCESS 50-51 (1949)).
[79] Id.
[80] Id. at 86 (citing Michael A. Harris, THE AGE OF JEWETT:  CHARLES COFFIN JEWETT AND AMERICAN LIBRARIANSHIP, 1841-1868, at 82 (1975)).
[81] Id .
[82] Id.
[83] Id. at 145, 151.
[84] Williams, supra note 53, at 65-68.
[85] Id. at 90-93.
[86] Id.101-04.
[87]Id. at 110.  Working papers followed and were published as PUBLIC LIBRARY ASSOCIATION/AMERICAN LIBRARY ASSOCIATION, A STRATEGY FOR PUBLIC LIBRARY CHANGE:  PROPOSED LIBRARY GOALS-FEASIBILITY STUDY (1972).
[88] Id. at 111-12.
[89] Id. at 117 (citing David Kaser, Toward a Conceptual Foundation for a National Information Policy, 52 WILSON LIBR. BULL. 545, 545-46 (1978)).
[90] Kaser, supra note 89, at 9-10.
[91] Wiegand, supra note 26, at 2-3.  The Columbia curriculum was never approved by the trustees.  There were four components of the program:  institution, expertise, authority, and character.  The faculty was to teach students how to run libraries efficiently, how to select materials and then exploit them to the benefit of the public.
[92] See American Geophysical Union v. Texaco, Inc., 60 F.3d 913, 930-31 (2d Cir. 1994) (holding that royalties were due for photocopies of articles from journals to which Texaco subscribed made by or for researchers in a for-profit organization).
[93] Francis L. Miksa, Library and Information Science:  Two Paradigms, in CONCEPTIONS OF LIBRARY AND INFORMATION SCIENCE 229, 231 (1997).
[94] Molz & Dain, supra note 61, at 123.
[95] Id.  These are the activities that constitute the professional sovereignty of librarians-and it still centers on institutions and expertise.
[96] Wiegand, supra note 26, at 13.
[97] Molz & Dain, supra note 61, at 123-24.
[98] Wiegand, supra note 26, at 9.
[99] Miksa, supra note 93, at 231.
[100] Wiegand, supra note 26, at 20.
[101] Molz & Dain, supra note 61, at 187.
[102] Id. at 21-22.
[103] Miksa, supra note 93, at 236-37.  This position is not a universally supported position.  For example, Wayne A. Wiegand believes that the distinction Miksa makes between information and reading is erroneous, since people often read to solve problems, to wit self-help books, “New Age” self discovery materials, and the like.  Wiegand letter, supra note 54.
[104] The phrase is often attributed to Stewart Brand who said at a 1984 hacker’s conference, “Information wants to be free-because it is now so easy to copy and distribute casually-and information wants to be expensive-because in an Information Age, nothing is so valuable as the right information at the right time.”  The statement was printed in a report/transcript from the conference in the WHOLE EARTH REV., May 1985 at 49.  It quickly became a mainstay of the “Hacker Ethics” http://www.it.rit.edu/~spg/ICSA411/GroupProj/Encrypt/slides/tsld010.htm.
[105] This lack of concern about so-called "perfect copies" breaks down when one considers works for entertainment such as motion pictures and sound recordings as well as works such as software.  Perfect copies do matter for these types of works.  Recent cases relating to entertainment works highlight the importance of such copies to copyright holders.  See Universal City Studios, Inc. v. Reimerdes, 82 F. Supp.2d 211 (S.D.N.Y. 2000) (concerning decrypting DVDS); UMG Recordings, Inc. v. MP3.com, 92 F.Supp.2d 349 S.D.N.Y. 2000) and A&M Records, Inc. v. Napster, Inc., 2000 U.S. Dist.  LEXIS 6243 (N.D. Cal. 2000 May 5, 2000) (concerning music recordings and MP3 technology).
                   [106] See ASSOCIATION OF RESEARCH LIBRARIES, ARL STATISTICS, 1998-99 (listing total expenditures for library materials by major academic libraries as: Harvard - $21,225,368; Yale - $17,661,000; Berkeley nearly $12,993,612 and Columbia, almost $12,774,600).
[107] See 17 U.S.C. § 107(0(4), which states that nothing in section 108 affects the right of fair use.  The legislative history is silent as to the scope of a library's fair use rights under section 108.  In the general discussions of section 107 fair use, however, some of the examples given are common library practices.  The House Report discusses the preparation of works in special forms needed by blind persons which is usually done by libraries.  Also mentioned is film preservation.  H.R. Rep. No. 94-1476 (1975) reprinted in 17 OMNIBUS REVISION LE61SLATIVE HISTORY 73 (1977) [hereinafter House Report].
[108] See infra notes I2l-38 and accompanying text.
[109] 17 U.S.C. § 108(a).
[110] House Report, supra note 107, at 75.
[111] 17 U.S.C.§ 108(a)(2).
[112] 17 U.S.C. § 401 (b) (2000).
[113] 17 U.S.C. § 21 (1970).
[114] 17 U.S.C. § 405 (1988).
[115] Berne Convention Implementation Act of 1988, Pub. L. No. 100-568 (1988).
[116] Warning Notices for Copies and Machines, AMER. LIBR. 530, November 1977.
[117] Pub. L. No. 105-304 (1998) (codified in various sections of 17 U.S.C. §§ 101-1332).
[118] Arnold P. Lutzker, legal counsel for several library associations, has opined that this places no burden on libraries to search for the actual notice when the owner does not place notice on the work such as on the individual journal article.  Association of Research Libraries, Section 108(a)(3) Notice Requirements Memo, Arnold P. Luzker, August 19, 1999.  (visited July 7, 2000) http://www.arl.org/info/frn/copy/notice.html.  Others disagree, including this writer, when the work is a journal article for which the author has transferred the copyright to the publisher.
[119] See 17 U.S.C. § 1202 (1994, amended 1998).
[120] S. Rep. No. 105-190 at 34-36 (1998) [hereinafter Senate Report].
[121] CONFU, supra note 20.  The author was present at various sessions of CONFU when these statements were made.
[122] House Report, supra note 107, at 75-76.
[123] 17 U.S.C. §§ 108(b)-(c) (1976).
[124] Id. (Supp. 1998).
[125] Id.
[126] Id. § 108(c) (Supp. 1998).
[127] House Report, supra note 107, at 75-76.
[128] Id.
[129] Association of American Publishers, PHOTOCOPYING BY ACADEMIC, PUBLIC, AND NON-PROFIT RESEARCH LIBRARIES 14 (1978).
[130] American Library Association and National Education Association, THE COPYRIGHT PRIMER FOR LIBRARIANS AND EDUCATORS (Janis H. Bruwelheide ed., 2d ed. 1995).
[131] Id. at 27.  This is a very logical interpretation of fair price, since few libraries could afford to purchase a second copy of a set of books in order to replace a single damaged volume.
[132] The final mention of the term “fair price” occurs in section 108(e) when a library is reproducing either an entire work or a substantial part thereof for a user.  Before the library can reproduce the work for the user, it must first determine by reasonable investigation that a copy cannot be obtained at a fair price.  For section 108(e) the word “unused ” does not appear.  Thus, the library must even look on the used book market before duplicating the work for a user.
[133] The amendment also renumbered the old (h) to (i).
[134] One might question why this section uses the term “reasonable price” rather than a “fair price.”  Is there a difference?  Or was this simply sloppy drafting?  Senate Report, supra note 120.
[135] 17 U.S.C. § 108(h) (Supp. 1998).
[136] DIGITAL DILEMMA, supra note 12 at 9-10, 206-10.
[137] The Kathrine R. Everett Law Library at the University of North Carolina at Chapel Hill has had this experience with some CD-ROMs published by West Publishing Company.
[138] DIGITAL DILEMMA, supra note 12, at 208.  This report calls for agreements between copyright owners and libraries about preservation where libraries would agree to take on the responsibility of providing digital archives of certain online journals.
[139] In this instance, authorized means one that pays the royalties, such as Carl UnCover or Access Information Corporation.
[140] This broad use of the term “document delivery” was, in part, responsible for the disagreements that arose between publishers and librarians in the 1990s, as described infra notes 157-61 and accompanying text.
[141] 17 U.S.C. § 108 (d) (2000).
[142] Id.
[143] 37 C.F.R. § 201.14 (1999).
[144] For requests for copies that a library receives via fax, it has only three options:  (a) fax the warning back to the user prior to supplying the copy; (b) telephone the user and read the warning; or (c) develop a fax form for requests, insist that patrons use this form to submit their requests by fax and include the warning on the fax form.
[145] 17 U.S.C. § 108(g)(2000).
[146] Id.
[147] Id.
[148] Id.
[149] Washington Business Information Inc. v. Collier, Shannon & Scott, 41 PAT. TRADEMARK & COPYRIGHT J. 389 (E.D. Va. 1991).
[150] 22 U.S.P.Q. 2d 1076 (N.D. Tex. 1992).
[151] Id. at 1076-77.
[152] 47 PAT. TRADEMARK & COPYRIGHT J. 32 (D.D.C. 1993)
[153] Id. at 33.
[154] 17 U.S.C. § 108(e) (2000).
[155] House Report, supra note 107, at 76.
[156] 17 U.S.C. § 108(e) (2000).
[157] See AAP DOCUMENT DELIVERY PAPER, supra note 5.  For an excellent discussion of document delivery and interlibrary loan see James S. Heller, The Impact of Recent Litigation on Document Delivery and Interlibrary Loan, in GROWING PAINS:  ADAPTING COPYRIGHT FOR LIBRARIES, EDUCATION AND SOCIETY 189 (Gasaway, ed. 1997).
[158] AAP DOCUMENT DELIVERY PAPER, supra note 5.
[159] House Report, supra note 107, at 77-78.
[160] AAP DOCUMENT DELIVERY PAPER, supra note 5.
[161] 17 U.S.C. § 108(g)(2)(2000).
[162] CONTU is the National Commission on New Technological Uses of Copyrighted Works, which was appointed by Congress in 1975 to develop the interlibrary loan guidelines and determine what the statue should contain in order to deal with computer programs and databases.  It issued its final report on July 31, 1978.
[163] Conf. Rep. No. 94-1733 (1975), reprinted in 17 OMNIBUS COPYRIGHT REVISION LEGISLATIVE HISTORY 71-74 (1977).
[164] Id. at 72-73.
[165] There may be some libraries that use unauthorized document delivery services.  If, however, the library itself pays the royalties then there is not a problem.
[166] The term “authorized document delivery service” means one that pays the royalties either to the Copyright Clearance Center or directly to publishers.
[167] A further complicating factor is whether the library pays the royalties for users of its document delivery service while not doing so for ILL requests that it fills form its collection.  The borrowing library is responsible for staying within the CONTU guidelines and therefore for paying royalties for copies obtained beyond the suggestion of five.  So, when a lending library treats the two activities differently for purposes of copyright royalties, there is no problem with liability.  There may, however, be a management difficulty in training staff to recognize the difference and fulfill the requirements of the statue.
[168] The author represented the Association of American Universities at the Conference on Fair Use, 1994-98 and was present at group meetings with publishers when these statements were made.  See supra note 20.
[169] Association of American Publishers, AAP POSITION PAPER ON SCANNING (1994), at http://www.publishers.org/home/abouta/copy/scanning.htm (last visited Oct. 8, 2000) [hereinafter AAP SCANNING PAPER].
[170] CONFU, supra note 20.  The author was present at various subcommittee meetings when this was said.
[171] AAP SCANNING PAPER, supra note 169.
[172] Clearly, for certain other types of works such as audiovisuals works, sounds recordings, motion pictures and the like, the ability to make perfect copies matters both to copyright holder and to the user.  This does not necessarily carry over to textual materials, and when publishers make this argument, it is not well received by librarians who do not see why the ability to make perfect copies matters.
[173] See Laura N. Gasaway, Electronic Reserves in Growing Pains:  ADAPTING COPYRIGHT FOR LIBRARIES, EDUCATION AND SOCIETY 125 (Gasaway, ed. 1997).
[174] ALA Model Policy for Classroom, Research and Library Reserve Use, reprinted in GROWING PAINS:  ADAPTING COPYRIGHT FOR LIBRARIES, EDUCATION AND SOCIETY 497 (Gasaway, ed., 1997), available at http://www.cni.org/docs/infopols/ALA.html#mpup (last visited Oct. 8, 2000).
[175] See House Report, supra note 107, at 68-70.
[176] Id.
[177] During the CONFU process, publishers referred to the fact that these were not negotiated guidelines and that they had never agreed to them.  On the other hand, publishers have not filed suit against a library for photocopying materials for its reserve collection.  One might query whether this indicates acquiescence to the practice or whether it was viewed as so unimportant that litigation was unnecessary.
[178] The Copyright Clearance Center now has Electronic Course Content Service through which institutions may obtain permission to provide electronic copies of covered materials for library reserves and to distance learners.  See CCC Services-Electronic Course Content Service, at http://www.copyright.com/Services/ECCS.html (last visited Oct. 8, 2000).
[179] Although never adopted by CONFU, the 1996 draft electronic reserve guidelines are available on several websites, for example, http://www.utsystem.edu/ogc/intellectualproperty/rsvrguid.htm (last visited July 7, 2000) and http://www.iupui.edu/-copyinfo/fuguide.html (last visited March 19, 2001), and are reprinted in GROWING PAINS:  ADAPTING COYRIGHT FOR LIBRARIES, EDUCATION & SOCIETY 499 (Gasaway, ed., 1997).
[180] Id.
[181] See CONFU Report, supra note 20, at 15-16.
[182] See, for example, A Proposal for Educational Fair Use of Digital Images http://www.utsystem.edu/ogc/intellectualproperty/imagguid.htm (last visited Oct. 8, 2000).
[183] Id.
[184] 77 F. Supp.2d 1116 (C.D. Cal. 1999).
[185] Id. at 1121.
[186] See University of Texas System Website, athttp://www.utsystem.edu/mis/ogc/intellectualproperty/copypol2.htm#image (last visited Oct. 11, 2000).
[187] House Report, supra note 107, at 70-72.  These guidelines are similar to the classroom guidelines in that they were negotiated and were published in the legislative history that accompanied the Copyright Act.
[188] Id. at 71.
[189] See Music Library Association, Statement on the Digital Transmission of Electronic Reserves, at http://www.musiclibraryassoc.org/Copyright/ereserves.htm (last visited Oct. 11, 2000).
[190] See DIGITAL DILEMMA, supra note 12, at 202-04.
[191] For text of UCITA as adopted and all previous drafts, see Biddle Law Library, University of Pennsylvania Law School Website, at http://www.law.upenn.edu/bll/ulc/ulc_frame. (last visited Oct. 8, 2000).
[192] To date, both Virginia and Maryland have adopted amended versions of UCITA.  See National Conference of Commissioners of Uniform State Laws Website, at http://www.nccusl.org/uniformacts-state.htm (last visited Oct. 8, 2000).
[193] DIGITAL DILEMMA, supra note 12, at 103.
[194] INTERNATIONAL ENCYCLOPEDIA OF INFORMATION AND LIBRARY SCIENCE 237 (1997).
[195] Id.  Other types of works such as software, microfiche, audiovisual works, music sound recordings, etc., are not given ISBNs as they have other identification systems.
[196] Clifford Lynch, Identifier and Their Role in Networked Information Applications, at http://www.arl.org/newsltr/194/identifier.html (last visited Oct. 11, 2000) [hereinafter Lynch].
[197] INTERNATIONAL ENCYCLOPEDIA OF INFORMATION AND LIBRARY SCIENCE, supra note 194, at 238.
[198] Lynch, supra note 196.  Using ISBNs in bibliographic citations has been problematic, however, since either the paperback or the hardback edition will have the same content and the ISBN makes unnecessary distinctions for citation purposes.
[199] Association of American Publishers, COPYRIGHT MANAGEMENT AND THE NII:  REPORT TO THE ENABLING TECHNOLOGIES COMMITTEE OF THE ASSOCIATION OF AMERICAN PUBLISHERS (1995); Bill Rosenblatt, The Digital Object Identifier:  Solving the Dilemma of Copyright Protection Online, 3 J. ELEC. PUBL’G Dec. 1997), at http:// www.press.umich.edu/jep/03-02/doi.html (last visited Oct. 8, 2000) [hereinafter Rosenblatt].
[200] Lynch, supra note 196.
[201] Lloyd A. Davidson & Kimberly Douglas, Promise and Problems for Scholarly Publishing, 4 J. ELEC. PUBL’G (1998), at http://www.press.umich.edu/jep/04-02/davidson.html (last visited Oct. 8, 2000) [hereinafter Davidson & Douglas]. See also, Rosenblatt, supra note 199.
[202] DOIs actually conform to the Internet Engineering Task Force’s specifications for Uniform Resource Names (URNs) which should also be persistent.  See Rosenblatt, supra note 199.
[203] Norman Paskin, DOI:  Current Status and Outlook, 5 D-Lib Magazine (May 1999) http://www.dlib.org/dlib/may99/05paskin.html (last visited Oct. 11, 2000).
[204] Rosenblatt, supra note 199.
[205] Id.
[206] Davidson & Douglas, supra note 201.
[207] In Feist v. Rural Telephone, 499 U.S. 340, 358-59 (1991) the Supreme Court set out the criteria by which factual compilations will be judged for determining if they meet the Constitution’s originality/creativity requirements.  These include originality in selection, organization, indexing and value adding.
[208] In reality it is not the publisher who creates the content but the author.  The publisher is really the packager and distributor of that work, which suggests another conflict, this time between authors and publishers.
[209] See McCollum, supra note 31.
[210] Id.
[211] At the time of this writing, there has been little information from OCLC about its participation in the DOI Foundation.
[212] Lynch, supra note 196.
[213] Wiegand, supra note 26, at 16.
[214] Molz & Dain, supra note 61, at 186-87.
[215] Id. at 187.
[216] Id. (citing Michael Rogers, Internet Shaping Libraries’ Future, 121 LIBR. J. Dec. 1996, 27-28).
[217] Id. at 187-88.
[218] According to Wayne a. Wiegand, part of what drives librarians to be “information professionals” is a desire to have their profession and their individual contributions considered more important so that they can merit the money they feel they deserve.  Wiegand letter, supra note 54.
[219] DIGITAL DILEMMA, supra note 12, at 128.
[220] See letter from Patricia Schroeder, President and CEO, Association of American Publishers, to university provosts (August 30, 1999) (on file with author).
[221] Id.
[222] For example, see 17 U.S.C. §§ 108, 110, 112.
[223] I recall with some amusement teaching in a Association of Research Libraries electronic reserves workshop when a librarian stated quite firmly that it was her First Amendment right to scan works for the library reserve system in her institution.  I must admit that my first thought for a response was, “Have you lost your mind?”  Where does one even begin to untangle this misunderstanding?
[224] 17 U.S.C. § 1201(d) (1994 & Supp. 1998).  This requires a good faith determination.  However, it is basically a meaningless exception since any publisher would give libraries the right to examine a work when the library wanted to investigate whether to purchase a work.  During debates on the anti-circumvention provisions, librarians did use this as an example of the dire consequences that would result from enactment of this provision.  Congress took care of their concern with this statutory language.
[225] The breakdown in discussions may also result from perception of greater success by the groups not talking to each other.  Publishers can assert rights through contracts and legislation.  Librarians can find their own understanding of fair use and are not being sued for copyright infringement so they may see little impetus to talk to publishers.
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