So Peter Brantley over on the O'Reilly blog has an interesting reaction to yesterday's New York Times article on the latest rumblings from the Open Library/Open Content Alliance/Internet Archive people (OL for short). Peter's post is full of high ideals - and is one of the scariest things I have read in a long time. At least the way Peter describes it, the actions of the OL could threaten all ILL.
The idea of libraries getting funding to make digitized books freely available is a wonderful idea. When I first read the NY Times article, however, I scoffed at the idea that this was somehow in competition with or a serious alternative to the Google/Microsoft library partnerships. Just look at the numbers in the article. According to the paper, the Boston Consortium is going to spend $850,000 of their own money to digitize books. At the $30/book figure quoted in the article, that is at most 30,000 books over two years. Some of the Google partners are doing that many books in two weeks.
What I found scary in Peter's post was the suggestion that the group is going to try to re-invent ILL. Quoting from the text supposedly available from the OL web site (down all day today, but confirmed in the Google cache):
Today we are announcing that several libraries will work together to scan out-of-print books and offer these to users through the interlibrary loan system. We believe this can be a tremendously valuable way to increase scholarly and public access to hard-to-find resources.
Digitizing ILL requests is a valuable public service, which is why some libraries have been doing it for quite awhile. What the OL seems to be proposing, however, is pre-emptive digitization, so that when an ILL request arrives it can be readily filled.
Unfortunately just because a book is out of print does not mean that it is not protected by copyright. Right now a library may use Section 108(e) of the Copyright Act to make a copy of an entire book for delivery to a patron either directly or through ILL, and that copy can be digital. But the library has to clear some hurdles first. One of them is that the library has to determine that a copy (either new or used) cannot be obtained at a fair price. The rationale for this requirement was that activity in the OP market for a particular title might encourage a publisher to reprint that work. In addition, the copy has to become the property of the user - the library cannot add a digital copy to its own collection.
Is this inefficient? Yes. Would it be better if libraries could pre-emptively digitize copyrighted works, store them safely, conduct the market test when an ILL request arrives, and then deliver the book to the user if no copy can be found? Yes. But this is not what the law currently allows.
The OL calls this "Loaning Out-of-Print Books" on their page, but it is not. Loaning out of print books is something that libraries do now, legally - by sending the actual copy of the book. What the OL seems to be proposing is making reproductions of copyright-protected out of print works and then distributing those reproductions to the public upon request. Call it "Print-on-Demand of Out of Print Books via ILL." While it is a position that I can support philosophically, I can find no basis in the current law that would permit it.
Why do I feel that ignoring the current law may be dangerous? Because traditional ILL is under attack. All you have to do is read the comments from some of the publisher groups that were submitted in response to the March 2007 call from the Section 108 Study Group to realize that for some, current ILL rules and procedures are too generous, rather than too narrow. Many, for example, said that the requirement that a library must search for a marketed copy of a work before filling an ILL request should be extended to individual articles, and not just to books. Unilateral actions such as those proposed by the OL are likely to anger publishers even more and increase their resolve to narrow all ILL exemptions.
There are two ways to approach achieving the desirable goal of increasing access to materials in our libraries. One is to ignore the law and do whatever one thinks is right, regardless of the costs to traditional library services. The other is to take the harder, but more justifiable, route of convincing Congress that the public good would benefit from a more generous ILL policy for out of print books. I hope the OL decides to follow the latter approach.
Excellent post, and the OL people are paying attention.
Posted by: Carlos Ovalle | October 28, 2007 at 11:38 AM