Libraries, Copyright and the Electronic Environment

Carol Risher

This paper was prepared for the International Publishers Association and adopted by its international committee in April 1996. The paper stresses that the new elec- tronic environment will require mature international standards of copyright protec- tion. Publishers have concerns over how copyrighted works should be protected and welcome the opportunity to work with libraries and library associations to consider the uses of digitized formats that will preserve the rights of copyright holders while ensuring that publishers reach their intended audience.

T he new electronic environment is coming like a speeding train or a tidal wave--inevitable and unstoppable. It is coming, but it is not yet here.

Hence, the dominant technology has not yet been determined. Publishers have not yet decided which products will be available only in electronic form, which will remain only in print, and which will appear in multiple forms. They are exploring new products and services to determine which their customers pre- fer. Libraries are also being forced by the electronic environment to make new decisions. They must consider which new media products to add to their collections and in what formats, and the impact on existing holdings. They are concerned about what they can legally do with the products they acquire and what uses can be made of available technology to provide new forms of cus- tomer service.

The technology provides new services, new products, and new roles for information providers. Further, the fact that the electronic environment is both developing and constantly changing requires the various players to continu- ally readjust their roles while still managing their basic jobs. A print publisher must add an electronic publishing component to his operation while still main- taining the print line. Booksellers must add audio, video, and multimedia shelves to their bookstores while still carrying the full line of printed books. Librarians must decide which products to add to their collections and which equipment to purchase in order to display or permit patron access to electronic products. And through it a l l l w i t h all of the decisions to be made and the challenges of learning to deal with new technology--the marketplace is chang- ing too. It makes for unsettling times, but also makes clear the need for coop- eration. The patterns and practices of print publishing and library use of print

Carol Risher is vice president, copyright and new technology of the Association of American Publishers. Address for correspondence: AAP; 1718 Connecticut Ave., NW; Washington, DC 20009-1148. E-mail: CRISHER@publishers.org

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products often do not apply in the electronic age. As will be discussed more fully below, the traditional rights of authors and publishers must be main- tained, but as the attributes of digital use are quite different from those of the print environment, the application of those rights must be carefully protected.

It is essential that while planning for the electronic environment of the future everyone creators (authors and publishers), users, intermediaries (libraries, retailers, electronic service and access providers), legislators and other policymakers, and the courts--recognize the role of copyright in encouraging creativity and the related publication of valuable information content. Respect for copyright and compliance with the copyright law is not an obstacle for the information society; it is a necessary building block without which no mean- ingful, vibrant content will be available.

Digital is Different

The new electronic environment is very different from the analog print envi- ronment. Both publishers and librarians are faced with the need to redefine the way we provide service to patrons and customers. While we recognize and respect the historical role of libraries in the information chain, this role, and the way it has been carried out, is changing. No longer will libraries be the sole repository of published matter. No longer will libraries be the only means of obtaining archival information. In some areas, libraries will be able to fulfill their function by merely pointing to other electronic repositories and in others they will seek more active roles. These changes will necessitate cooperation between publishers and libraries--cooperation publishers are pleased to pro- vide. However, the changes in the nature of publishing will also necessitate changes in behavior by libraries if copyright is to be respected and fulfill its role.

The electronic environment also requires new understanding of words. To "browse" in the print world conjures the vision of flipping through pages of a book on a bookstore or library shelf. In the electronic world, however, there are programs called "browsers" that create a complete copy of electronic files for replication on a computer screen. These programs most often are capable of both downloading and wide dissemination and proliferation of copies. Mak- ing a photocopy of a print product (however problematic unauthorized photo- copying may be) is quite different from creating a digital version of the same work. Electronic versions are often as good or better than the original. They can be replicated an infinite number of times with no image degradation. They can be distributed electronically, worldwide, in an instant. The impact of un- authorized digital uses can destroy the value of a copyrighted work.

Digital Versions of Works Need Copyright Protection Adequate to Their Nature

Many national and international library groups have argued that they should

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be able to use digital formats of copyrighted works in the same way as they used printed versions in the past. This is a dangerous concept because it disre- gards the indisputable fact that digital uses are not equivalent to nondigital uses, and, when undertaken without regard for copyright, can have immea- surably harmful consequences.

As previously noted, digital "browsing" is not the same as casually leafing through a few pages of a book on-site at a library. It is, instead, reproducing and transmitting to thousands of network users at myriad locations, digital content stored on a single library's computer.

Similarly, there is not and should not be a "private" or "personal" use ex- emption from copyright as such (apart from limited, legitimate "fair uses" that are subject to sensitive criteria and do not impact the market for or value of the copyrighted work, or the interests of the creators). It must be recalled, after all, that disseminating printed and electronic works to individual consumers for their "personal" or "private" use is precisely the business authors and publish- ers are about.

Unauthorized digital "Lending"--a clear misnomer--to patrons at remote locations will destroy publishers. Their entire business model is to provide readers with content to read. A digitized version of a book that can be elec- tronically provided to anyone anywhere under the label "library lending" di- rectly competes with both conventional and new authorized forms of publish- ing and service to readers that publishers have and will continue to provide.

Many national and regional libraries contemplate digitizing their print col- lections to facilitate a virtual library that can provide service to patrons at remote locations and facilitate resource sharing. Such a concept will destroy not only the incentive to create new copyrighted works, but the revenue from existing works that provides the investment in new works by authors and publishers.

The activities requested by libraries must be measured by their actual nature, circumstance and effect, not by inherently faulty analogy to a print product housed in a physical form in an analog world. When properly examined, the activities will frequently be found to be beyond the limits of statutory privi- lege.

Copyright holders and creators must retain the rights provided by copyright law to determine how to exploit their copyrights and to thereby be able to treat different types of works differently: for example, to provide some works direct to consumers and other works to intermediaries; to package some works as collections of items and others as individual works; to provide some products in encrypted form for a limited audience and others more broadly. A mandate for libraries to redistribute copyrighted information for free is a mandate that authors and publishers not risk the investment in providing the information at all. Such a requirement would deprive society of the very values that elec- tronic information is intended to provide.

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Not All Libraries nor All Publishers are Equivalent

The problem with discussing "library services in an electronic environment" is that such a generalization presumes that all libraries are of the same nature. There should be a way to discuss the impact of technology on various types of libraries to consider any relevant differences in collections and capabilities of small, isolated (at least absent electronic links), public libraries and large, multi- branched facilities, or large research libraries in for-profit corporations, or li- braries with specialized collections in various types and sizes of academic institutions. Similarly, the differing nature among the great variety of pub- lished and customized works should be considered in exploring the electronic environment. A highly specialized work with a limited audience cannot with- stand copyright infringement even if another type of published product has some level of tolerance for minimal abuse. Generic approaches to the role of libraries in an electronic environment threaten to ignore these very important differences with unintended consequences to authors and scholars alike.

Digital Document Delivery is One of the N e w Primary Services Publishers Offer

Digital document delivery, providing scholars and researchers with indi- vidual articles and short excerpts of longer works, is a new service being offered by publishers. It is not the same as print-based interlibrary loan. Many publishers around the world are in the process of developing new services using digital delivery designed to meet user needs and expectations. These services include digital document delivery, individual articles "on-demand," and access to archival data bases of previously published materials with hyperlinked resources.

Although inherently part of the traditional function of publishing, this new digital publishing is not the same as traditional print publishing. It provides significant additional value to the reader. For this reason, the capacity, devel- opment, and promise of new digital publishing should not be undercut, di- minished, or abused by claims that whatever was a permitted or tolerated use of a print product should equally be permitted with digital products and ser- vices. This behavior would discourage the very innovation that publishers are developing to serve the marketplace. Publishers agree that there is a role for libraries in helping patrons to find relevant information and helping them obtain such documents (including appropriate reliance on electronic systems), but the role of libraries must be matched to the new role of publishers so that as partners we can continue to serve the information needs of the marketplace.

Unrestricted Library Document Delivery Violates Article 9 (2) of Berne

Libraries that copy digitally and store copyright works electronically, even

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temporarily, as part of electronic document delivery services are not acting with respect for copyright law nor do their activities comport with Article 9 (2) of Berne since such activity directly "conflicts with a normal exploitation" of the new digital copyright work and "unreasonably prejudices the legitimate interests of the author. "

Transmission of copyright works to "remote" locations is a violation of copy- right. Whether viewed as an aspect of the reproduction, distribution, perfor- mance, or display right, copyright owners have long retained the exclusive right to authorize the dissemination of their materials to remote locations. The new and evolving markets for electronic transmission of text-based works does not call for an abandonment of the protections and safeguards built into national copyright laws; to the contrary, it is ample reason to be extra cautious that the incentive for authors and publishers to create products and services for use in remote, "distance," or other transmission markets is encouraged and preserved.

Lending of Electronic Products Bears More Risks Than Lending Print Products

Concern has been raised by libraries about new market arrangements for electronic products. These library groups have suggested, for example, that legislation should regulate and prohibit copyright holders with respect to indi- vidual contracts, subscriptions, and like arrangements affecting use of elec- tronic resources by librarians and library patrons. Yet any legislation that in- terferes with a copyright holder's rights to create and develop new forms of publications and new types of electronic value-added resources will only harm the public by discouraging such creativity. The marketplace is a powerful incentive for creators. However, electronic products are easily copied and hence far more vulnerable to copyright abuse. Any legislation that either precludes normal exploitation or requires a limit on the right to engage in normal busi- ness practices can only inhibit the creativity and investment to create such products. This is not wise for either the libraries or governments to attempt.

Licenses, transactional arrangements, and other contractual terms developed to protect copyrighted works in the electronic world must be respected by libraries and their patrons. It is the very capacity of electronic publishing for enhanced interactivity and direct subscriber contact that promises exciting new opportunities, products and services for readers, scholars, authors and pub- lishers alike. Unfettered economic balancing and refinement of markets will assure publisher experimentation, innovation, and exploitation of multiple ac- cess channels for the public. Additionally, it will be through such contracts and licenses that publishers and their library customers will develop new methods for serving library patrons.

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Preservation and Conservation Does Not Mean Unrestricted Use

Publishers agree that libraries play an important role in preservation of a countries' cultural heritage. We agree that full use of technology should be employed in preservation and conservation of such materials. However, we have concerns over how copyrighted works should be protected once a library has converted them to digital form for preservation purposes. It must be un- derstood that once a work is in digital form, it is not functionally, at least, the same product. Because digital material is different from printed material in the manner in which it can be replicated, manipulated, distorted, and broadly disseminated, it should not be viewed in the same way as printed material. Publishers welcome the opportunity to work with libraries and library associa- tions to consider both permitted and limited uses that can be made of the digitized formats to support the goals of the library community while preserv- ing the rights of copyright holders. Preservation is a goal both groups support, but the unintended impact of unrestricted use could harm both libraries and publishers, to say nothing of the integrity of the work and the level of trust in the digital version on which patrons must be able to rely.

International Harmonizat ion

In this era of global electronic networks, mature international standards of copyright protection are necessary. However, the IPA opposes any national or international legislation that would artificially limit how technology can be used or how copyright holders can provide their works to their intended mar- kets. The copyright community has the incentive to create technological means to provide valuable copyright works to the widest possible audience while protecting these works from unauthorized redistribution. The marketplace will provide the balance needed to insure that publishers reach their intended audience. Such a goal can not be legislated.

Conclus ion

Libraries must realize that publishers exist to make information public--to provide content in a manner that is useful and valuable to the audience. Pub- lishers, as well as the library community, are excited about the ways in which computer networks, digitization of works, and other emerging techniques can enhance distribution of copyright works and enrich the reading and scholarly public. That is the reason, of course, why publishers are called "publishers" and not "withholders" of information. But the rules of the road and patterns of behavior in the electronic environment must be developed according to the principles and purposes of copyright laws and the rights and interests of cre- ators if they are to meet the needs of the public.

Libraries and publishers should continue to work together to explore this

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new digital environment. There are many examples of such cooperation and pilot projects ongoing at this time as individual publishers explore with indi- vidual libraries new ways to use the networked environment for delivery and service. Both publishers and libraries will have new roles, new responsibilities, and new means to carry out these roles and responsibilities. IPA and its mem- ber publishing organizations look forward to continued and renewed coopera- tion with both international and national library associations in the years ahead to achieve our common goals of providing copyright information to scholars, researchers and the public while respecting and protecting the rights of copy- right holders.