Does the Internet Archive Need the Copyright Rhetoric to Be Useful?

Photo by fotoduki

Recently, a tweet caught my eye on the #copyright thread—something about the late Congressman Sonny Bono and a new collection at the Internet Archive, which is the vast digital library founded by technologist and entrepreneur Brewster Kahle.  The tweet linked to a blog post by Kahle announcing that a collection of copyrighted works published between 1923 and 1941 had been “liberated” and is now available on what the Archive has named The Sonny Bono Memorial Collection.

The eponym is not an honor of course. It’s a posthumous snipe at Bono, who is credited (or blamed, depending on one’s point of view) for the Copyright Term Extension Act (CTEA) of 1998, which added 20 years to copyright protection, resulting in the current term of life of the author plus 70 years.  Kahle’s post is bulked out with a lot of standard rhetoric condemning the duration of copyright, repeating the misleading narrative that Mickey Mouse was a major reason for the CTEA, and imply rather obtusely that the original 14-year, single-renewal term of 1790 ought to still be the law of the land (because of course the world functions much as it did in the late 18th century).  All that noise aside, however, the new collection with the sarcastic name is made possible by what Kahle calls, “a little known, and perhaps never used, provision of US copyright law, Section 108h, which allows libraries to scan and make available materials published 1923 to 1941 if they are not being actively sold.”

Let me interject to say that the Internet Archive is impressively handy.  I’ve already found a number of intriguing sources for a research project I’m just beginning; so, what follows is not an indictment of this or any other library, whether physical or digital.  I love libraries. But the reason for highlighting Kahle’s derisive tone is that it seems that there’s a lot of unnecessary conflict being sown between contemporary librarians and copyright law. And the crux of Kahle’s own announcement about this new archive underscores just how unnecessary the conflict is. To begin, Section 108(h) of the Copyright Act is not quite so arcane as he implies.

The statute was created as a specific carve-out for libraries, reflecting a compromise to attain passage of the term extension in 1998.  The exception allows a library to copy and make a work available during the last 20 years of its term of copyright protection, if copies of the work are not commercially available at a reasonable price. There are more conditions to the statute, but the underlying rationale is common-sensical enough. If these “Last 20” works are no longer available in the market—and high-priced, rare copies don’t count—then libraries are allowed to fulfill their mission by making the works available for the purposes of research and scholarship.  Meanwhile, the existence of the 108(h) exception, including proposals to amend it, actually rejects the attitude that Kahle and others sometimes adopt which ultimately pits authors against libraries.

New Scholarship on Section 108(h)

The challenges for a library wishing to apply 108(h) include research capabilities to learn the copyright status of works, and vagueness in the statute that can make proper analysis difficult. Enter Professor Elizabeth Townsend Gard, a copyright and history scholar at Tulane University. In collaboration with colleagues and students, she produced a 103-page paper, released this month, entitled Creating a Last Twenty (L20) Collection:  Implementing Section 108(h) in Libraries, Archives and Museums.

Gard’s paper offers two major contributions:  1) a comprehensive methodology for qualifying organizations to make effective use of the 108 exception in order to build what she calls “Last 20 Collections”; and 2) suggestions for possible revision of the statute in order to address what she sees as unnecessary gaps that leave organizations in limbo with regard to qualification and implementation. The heart of the paper is dedicated to methodology, in which she describes a taxonomic approach to identifying works, combining standard library cataloging systems with copyright data to yield the information required to know if a work is eligible for the 108(h) exception.  Given the amount of complexity involved, and the fact that I am neither a librarian nor an attorney, I cannot fairly comment on the system.

With regard to the statute, the US Copyright Office published its Model Statutory Language for revision of Section 108 in September of this year.  Gard commends some of the proposed changes and critiques others, making several recommendations that sound reasonable. For instance, she advocates better clarification of the extent to which the “used” market honestly represents “availability” of a particular work in fulfilling the purpose of 108(h). Some of her proposals may find critics at the USCO or among various stakeholders; but suffice to say, her work reads like a sensible foundation for compromise, which can be a rare find in contemporary discussions about copyright.

Making Section 108(h) Work is Not an Anti-Copyright Statement

Gard’s work represents a counterpoint, in my view, to many positions adopted by the ALA and related organizations, which have spent considerable energy aligning their interests with for-profit, technology companies in the hope of expanding—through litigation—the fair use exception and/or the first sale principle.  This approach seems both ideologically and pragmatically flawed, especially where the for-profit ventures clearly try to strain the underlying legal principles involved.

Libraries, archives, and museums, which exist for the primary purpose of advancing scholarship, deserve special consideration that is not accorded (and neither should it be) to for-profit ventures—or necessarily all non-profit ventures.  While the internet does create unprecedented opportunities for providing access to works that can lead to new areas of scholarship and new forms of creative expression, it also creates unprecedented incentive (i.e. crazy-big money) for various parties to try to blur the line between public-serving and private-interest ventures. Legitimate institutions of scholarship that ally themselves with this kind of vagueness are, in my view, working at cross-purposes with efforts like those of Professor Gard, whose proposals seek clearer guidelines for the types of institutions that deserve exceptions like Section 108(h).

To put this in context, there is nothing that necessarily bars a public-serving and privately-held platform like the Internet Archive (or Wikipedia) from becoming a monetized business venture, either independently or by selling all or some portion of its enterprise to a larger entity like Google.  Or if the Internet Archive were to earn revenue by selling its user data, this should run afoul of Section 108’s prohibition against using a “Last 20” collection to attain “indirect commercial advantage” for the archivist. I’m not saying the Internet Archive will do this, but if we keep in mind that indirect commercial advantage is the mechanism by which giant internet businesses make content “freely” available to the public, this awareness should inform any new statutory contours for an exception like 108(h).

Referring back to Brewster Kahle’s post, he quotes Carrie Russell, Director of ALA’s Program of Public Access to Information thus: “I’ve always said that the silver lining of the unfortunate Eldred v. Ashcroft decision was the response from people to do something, to actively begin to limit the power of the copyright monopoly through action that promoted open access and CC licensing.”  Eldred is the Supreme Court decision upholding the constitutionality of the CETA, and Russell’s statement here is frankly incomprehensible in a blog alluding to Gard’s efforts to make an existing, statutory limit on copyright work better.

Kahle himself seems unclear about the difference between the nuance in Gard’s work and his own desire to evangelize the bad-manners approach to copyright typically employed by Silicon Valley corporations. He writes, “Now it is the chance for libraries and citizens who have been reticent to scan works beyond 1923, to push forward to 1941, and the Internet Archive will host them.” That makes it sound as though Gard’s work just opened the flood-gates and that anyone should feel free to upload anything to the Internet Archive as if it were YouTube. Does this mean the Internet Archive will then do the 108 analysis before hosting, or that they’ll just duck behind the safe harbor of the DMCA?   Either you’re an entity that responsibly qualifies for the 108 exception, or you’re an ideologue eager to stick it to rights holders.  You can’t be both.

Professor Gard’s work strongly highlights the fact that carve-outs for libraries already exist in the copyright law; and where these statutes may not function as intended, they can be amended through good-faith collaboration with the USCO, stakeholders, and Congress.  To achieve this collaboration, however, the librarians and archivists would do well to tone down some of the rhetoric implying that the interests of preservation and research are incompatible with the interests of authors. It is plainly absurd for librarians and authors to be at odds, even in the digital age.

© 2017, David Newhoff. All rights reserved.

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