Part 1 – Fair Use and the First Sale Doctrine with Digital Content

When it comes to digital rights, librarians can be awfully cranky—just look at the debate around HarperCollins ebooks. Librarian educator Terry Plum, Assistant Dean of Technology at the Simmons Graduate School of Library and Information Science has some thoughts about why. Plum has worked in academic libraries and higher education for nearly four decades. He presents and publishes on the evaluation of electronic resources and digital libraries, and has consulted internationally in library evaluation, library science education, and information technology training, most recently in Georgia, Belarus, Liberia, and Vietnam. I spoke with him on October 23, 2012, in his office in South Hadley, Massachusetts. 

This interview is presented in four separate installments; they cover fair use, licensing, digital rights management, and the role of the library today. We begin with the basic issues of fair use and the first sale doctrine, which librarians have guarded and sanctified for decades and aren’t giving up without a fight. Modern librarians just want to give their patrons access to materials, no matter its format, preferring that someone else figure out royalty management solutions. 

SN: So, what do librarians want in this digital age? 

TP: With respect to the advent of digital content for books in libraries, the issues are the first sale doctrine versus the license, and the clarification of fair use. First sale says that if you buy an item, you basically get to do what you want with it. So the library buys the books and then it can sell them, it can de-acquisition them, it can circulate them, it can rebind them. It can do whatever it wants with the books.

But first sale is not available in the digital form. That’s because with the digital item, the material is licensed, not purchased. Instead of owning the material, you have a license to use it in a very particular way. The library doesn’t own the material, which is an issue in and of itself. But also, the producer of the digital item can then refuse to permit sharing of that item, or downloading of that item, or giving the item to somebody else, or all of the kinds of exchange that are possible with the printed book, or CD, or video.

SN: And fair use? As you know, the fair use doctrine provides a limited exception to copyright exclusivity. It allows people to use copyrighted material in a limited way without permission. So the material can be used in reviews, for instance, or teaching, or search engines. What’s the issue for librarians?

TP: The librarians’ job is to defend fair use in the license. If they don’t do it, nobody does it. Because then an information provider might just grab fair use and say, no, you can’t quote, you can’t use a section of this material, you have to pay. Maybe the library can’t interlibrary loan, maybe you can’t put it on reserve, maybe you can’t do some of the things that you could do with the print material under fair use guidelines that have been worked out, usually by committees of librarians, publishers, and authors. So fair use is under threat, as well.

SN: What does that mean for libraries?

TP: Libraries have to figure out how to distribute ebooks in a way that is not the same as the print book. The print model for digital materials which was popular for a while—you check out the ebook and nobody else can get at it while you’ve got it checked out—that model is doomed. It’s a bad model. As Metcalfe’s Law says, the utility of the network goes up with the square of the users. The basic point is that the digitization of the materials makes it possible to throw them on a network. And the more users you have on a network, the value of the content on the network to the users, however you measure it, goes up exponentially.

So by having this model that’s really a relic of the print model where you charge out the ebook from a central repository—one copy, one user—is anti-networking. It doesn’t bring value to the material that’s on the network, except for the publisher. You could also look at HarperCollins as a misplaced model, as well.

SN: You have an interesting comparison about the book-to-ebook trend and the print-journal-to-ejournal process.

TP: The print to ebook innovation path, which is obviously ongoing, is very different from the transition from print journals to ejournals. When that transition happened, most library patrons got access to a lot more journals. Also, ejournals have greatly facilitated open access journals, which academia has largely embraced. That’s a good thing especially for developing countries that did not have much access to scholarly journals. In the move from print book to ebook, there’s kind of an open access, but that would only be for items that were copyrighted before 1923. You’re getting access to books, but not in the same way as ejournals. For example, with an ejournal you can download the material, and print it out. With ebooks, much of the material is locked up with the ereaders.

The users are different from books to ebooks, whereas the users for print journals are roughly the same as the users for ejournals. If you go back 20 years and look at just print journals in academia, you have the percentage of scholars, you have a percentage of students, a percentage of professionals, doctors and so forth. And when you look at ejournals today, those percentages are pretty much the same. Now, open access is making it a little more interesting, so that you’re picking up new audiences. But again, those new audiences are likely fit into those same categories and distribute in similar ways

Now, in academia, if you could look at the people who read print books, and look at the people who read ebooks, the distributions are not the same. These are different people and are using these materials for different purposes. I suspect this is true also for public libraries, but I don’t have data for that world. There are most likely differences socio-economically, by education, that is, different categories than in academia, but still different distributions. For a publisher that’s good and bad because if the differences are real, then print and ebooks are different markets, and individual titles must be marketed accordingly.

Fair use is a good segue way into the issue of licensing, which trumps everything, but only if you sign it away. The people who are happy with the situation, as Terry suggests, might be the Internet service providers, who just want content and don’t care where it comes from. 

What do you think?  Feel free to share your opinion in this debate by leaving a comment below.

Continue Reading… Part 2: Licensing Digital Content

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