The Digital Millennium Copyright Act (DMCA) passed in 1998, and the law took
effect in 2000. The implications for this law may fundamentally change the way
libraries are able to provide services for patrons in the future. Library services
we take for granted such as interlibrary loan may be restricted if the materials
are in a digital format.
The law gives more power to the copyright holders,
and limits the ability to use intellectual property for educational reasons.
In 2000, the National Research Council published a book length report "The
Digital Dilemma, Intellectual Property in an Information Age." The report
summarized the current problem of managing digital information by comparing
it to libraries.
A library purchases a book, and only one user at a time may check it out. Reproducing the book (photocopying, scanning) costs money and takes time for the user. Some users will purchase the book instead of waiting to check it out in the library, so sales of the material will continue. On the other hand, in an electronic format widely available, multiple users may be able to simultaneously access the work, transmit it to others, and print it out in full. One copy of a work published online may kill the entire market for selling additional copies.
The DMCA gave copyright holders legal protection to protect their markets using technology to protect digital works from misuse, copying, and illegal use. As the report states this can lead to a nightmare for consumers, reducing access to society's intellectual and cultural heritage. In the last 200 years of U.S. copyright law, there was a balance between the rights of copyright holders, and the rights to promote educational scholarship, criticism, and allowing broad access to information. By allowing copyright holders more power, this balance has been disrupted.
In the past, most scholarship was published in a physical form, as a book, journal, or report. Libraries held these materials, and made them available for consultation. The assumption has been that these materials would be useful in the future, as a record of the past. Digital information is not available in a fixed form, and can be rapidly changed.
Libraries and individuals often license materials, and do not own them. Copyright holders can alter the digital media-for example, web pages can be altered almost instantaneously by their creators-and often there is no record of the changes.
"The trend toward licensing also means that digital information is in some
ways becoming a service rather than a product. Buy a book and you own it forever;
pay for access to a digital book and when the period of service is over, you
often retain nothing…Licensors are also under no obligation to incorporate
public policy decisions (e.g. fair use) that have been carefully crafted into
copyright law (Digital Dilemma 8)."
The future of the library as we know it may be in jeopardy. By licensing electronic content instead of owning it, there is a danger records will no longer be stored permanently anywhere. If libraries allow licenses to expire, the information could be no longer available. Are libraries and/or publishers prepared to store huge amounts of digital information indefinitely? Libraries could form consortia to archive records, but who would ultimately decide digital records to archive?
The report also cautions against limiting access to information, by stressing the importance of a well informed, well-educated public as a fundamental component to American society. Publishers may not allow libraries access to digital information as a way of preserving sales. Practically, this means less access for consumers. If you must pay to access a database and you cannot afford to, you may continue without the resource. This may limit the sharing of scholarly communication to the point where scholars around the country become unaware of what researchers in other institutions are discovering and reporting.
Limiting access to information also prevents criticism and comments by scholars, which in general leads to improved products. Although the report does not get this specific, a practical example would be comparing Microsoft to Linux or other open source computer programs.
Microsoft protects their intellectual property with technology, and uses legal attacks against those who try to reverse engineer or illegally distribute their products. Because access to the software is controlled, efforts to improve or debug the software only come from the Microsoft camp. Consumers must also pay whenever a new version of a Microsoft product is released, which further limits the number of users. By contrast, open source software can be studied and improved upon by any number of users. Due to this, changes, bug fixes, and updates are available at a faster rate. Because open source products cost nothing for the most part, and are usually distributed via the web, consumers have easy access to them.
The Digital Dilemma report also covered fair use of digital information, and concluded that fair use of digital information must continue. "Fair Use" allows works to be reproduced or quoted as part of news reporting, teaching, research and criticism. Fair use has been developed over years of court decisions (Copyright Office Fair Use).
Unfortunately, this report was written in 1999, and fair use is not an allowable exception under the DMCA. As of 2000, when the DMCA went into effect, copyright holders are allowed to use technological means to prevent access to a copyrighted work. (Bradley @ Your Library 211).
Until at least October 2003, the only legal exceptions to this rule are compilations of lists of websites blocked by filtering software applications and literary works, including computer programs and databases that fail to permit access because of damage, malfunction, or because they become obsolete (Federal Register). In 2003, the exceptions will be reviewed again, but until that time, digital materials do not fall under "fair use" guidelines.
Many (including myself) fear that the balance previously achieved between has tipped, and laws now favor copyright holders interests above individual users and public interests (Entertainment Law Reporter, Digital Future Coalition). Libraries cannot attempt to circumvent any copy protection devices in digital works, except for the circumstances already noted. For example, a library would be breaking the law if they attempted to circumvent encryption to copy a passage from a digital journal or book they purchased access to (DMCA Nets 18).
Furthermore, libraries now have to restrict access to digital materials based on their agreements with copyright holders. Anyone could use the same print resources in a public library, and these materials are also available on interlibrary loan. Digital information is often restricted to authorized users, so only a limited number of users can access the resource (Pay Per Use World). Many organizations such as the American Library Association and the Digital Future Coalition fear copyright holders will soon be able to demand payments each time a resource is used.
In "Looting the Library" Seth Shulman talks about the threat libraries have to upholding their traditional place as "protectors of public access to new books and articles." He sees the publishing industry attempting to set up controls to prevent free and accessible information from being available. The worst version of this scenario would be where people have to pay for access to any published works, even those borrowed from libraries. This would change the core mission of American libraries from places to freely gather information at no charge to a model where those who could afford to will be able to obtain information.
Perhaps this is already happening. Libraries currently license most of their digital content; they do not own it. What will happen if the library has to cut costs? In the past, if a library cancelled a printed journal, they still owned the back file, and the resources were available for users. In the digital arena, if a library can no longer pay for a subscription, all electronic access may be discontinued. Even if the payments continue, can libraries trust publishers to maintain a complete electronic archive? Libraries may be able to form consortia to ensure continued archives of digital collections, but will they be able to agree on what needs to be archived?
The final loss to libraries and consumers with the DMCA is the loss of first sale rights for digital property. When libraries or consumers purchase a book or journal, they own it, and are able to dispose of it as they see fit. It is legal to sell a book to another users. However, under the DMCA, no one has these same rights.
The copyright holders (usually publishers) are able to sell copies but only give users limited rights, such as the right to view but not print. Copyright holders also dictate which technology may be used to play/view the digital media (Seltzer). The US Copyright Office ruled that digital copies do not wear out, and can be easily transmitted, and thus are not the same as a physical artifact such as a book. (LC Copyright Office Executive Summary). By their reasoning, digital media cannot and should not be sold with the same rights as a book or journal.
Even when libraries sign agreements that allow them to have perpetual access, if they do not have the resources on site, what happens if the content provider fails? netLibrary is a current example of this. netLibrary proposed to give libraries perpetual access to electronic books after they paid a one-time fee for them.
The netLibrary models seems to be an economic failure-perpetual access can be very expensive to maintain. The netLibrary contract gives customers the option of having their ebooks available on cd-roms, but technical restrictions will be in place on the cds so they will be used as the copyright holder wishes, regardless of the library's wishes (netLibrary contract). As Dave Rensburger recently wrote "Providers all up and down the line wake up to the fact that content itself may not be the cash cow they thought it was. The real profits are in the control of the delivery systems" (Rensberger 19).
Libraries will be affected by these changes. They may have to maintain multiple versions of hardware and software to run proprietary programs. When a library can no support a digital resource's technological demands, the library will not be able to sell or give the resource away. In the worst case scenario, some data may be permanently unavailable for research.
"The Wired Society is placed at-risk when researchers are prohibited from examining and conducting peer review of those technologies and services intended to run our society. By using DMCA and its related dictatorial methods (enacted as a form of federally-funded corporate welfare) to censore the objective, uncontrolled view of peer analysis and review of such items, corporations are essentially asking the public to "trust them" with their technological safety and livelihood. Not only is this hypocrapsy, but just as in the real world, dictatorial regimes are never trustworthy or oriented to the "little people." Neither will they be in cyberspace" (Forno).
With the DMCA, Congress has upset the balance between the rights of the public and the rights of copyright holders. Consumers and libraries need to make Congress aware that they want the same rights and freedoms with electronic materials that they have with paper ones.
Digital materials should be purchased, not licensed, and fair uses should be allowed. Scholarship and open sharing of information are fundamental values to the American public. Limiting libraries ability to provide information affects scholarly research. According to current interpretations of the DMCA, I have probably broken the law by quoting passages from electronic journal articles while writing this. This is a frightening future.
Bradley, Lynne E. "@ Your Library Copyright," College and Research Libraries News 52:2 Fall 2001:211.
Catz, Fred H., et al. "The Digital Millennium Copyright Act and Library Liability," Indiana Libraries, 19:1 (2000).
Committee on Intellectual Property Rights in the Emerging Information Infrastructure, National Research Council. The Digital Dilemma: Intellectual Property in an Information Age. National Academy Press, 2000. full text
"Copyright Office: 'No Problem with DMCA,'" American Libraries October 2001: 18.
"Copyright Owners Get Green Light to Roll with Technological Protection Measures at Consumer Expense," Digital Future Coalition, October 26, 2000. full text
"DMCA Nets a Criminal Prosecution and Prompts a Protest," American Libraries 32 no. 8 Summer 2001: 18-19.
Entertainment Law Reporter Publishing Company, "Copyright Office Report to Congress sides with Copyright Owners on digital resale questions, webcasters on music streaming and download licenses, and consumers on digital backups," Entertainment Law Reporter, Washington Monitor Section 23 no. 4 September 2001.
Forno, Richard. "National Security and Individual Freedoms: How the Digital Millennium Copyright Act (DMCA) Threatens Both," Infowarrior.org, 2001-05. full text
Gladney, Henry M. "Digital Dilemma: Intellectual Property: Synopsis and Views on the Study by the National Academies' Committee on Intellectual Property Rights and the Emerging Information Infrastructure," D-Lib Magazine 5 no. 12 December 1999. full text
Kirtley, Jane E., et al. "World Intellectual Property Organization: Comments on the Basic Proposal for the Substantive Provisions of the Treaty on Intellectual Property in Respect of Databases," The Journal of Academic Librarianship 9 March 1993: 134-9.
"LC Criticized on Fair Use Ruling," Library Journal November 2000: 13.
"LC's Digital Copyright Ruling Limits Fair Use," American Libraries December 2000: 10.
Library of Congress Copyright Office. "Fair Use." June 1999. full text
Library of Congress Copyright Office. "Executive Summary Digital Millennium Copyright Act." full text
netLibrary eBook Library agreement between the University of Iowa and netLibrary, Inc., March 2001.
"A Pay Per Use World," Newsletter on Intellectual Freedom 50.1 January 2001: 10.
Rensberger, Dave, "Swinging the Big Bat: Power Versus Technology," Searcher 9 no.9 October 2001: 18-20. full text
Seltzer, Wendy. Opinion on DMCA. full text
Shulman, Seth. "Looting the Library," Technology Review June 2001: 37. full text
United States. National Archives and Records Administration. "37 CFR Part 201: Exemption to Prohibition on Circumvention of Copyright Protection Systems for Access Control Technologies; Final Rule," Federal Register. Part V October 27 2000.
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