Digital Public Library of America wants to lend copyrighted works

The DPLA launched last month offering access to public-domain materials, but founders want to expand its purview

Last month, the Digital Public Library of America introduced its discovery portal to the Internet. It invited users in, to search through the “wealth of knowledge” collected there from libraries, museums, and archives across the country. There are pictures, collected by the Environmental Protection Agency, of the pollution that covered the country in the 1970s, movies of civil rights rallies in Chicago, muster rolls from the Civil War, and newspaper clippings covering everything from Prohibition-era smugglers to the death, in 1956, of Mrs. Jennie Cowart, age 78. The oldest item is in an inscription, belonging to the Smithsonian’s Freer and Sackler Galleries, from China’s Northern Song dynasty, around 1020. 

For this launch, the founders of the DPLA focused on finding and making available resources that are in the public domain, either because of their age or their provenance. But as the DPLA grows, the founders intend for it to cover a much wider world of material, including works that are still protected by copyright. One founder, Harvard’s University Librarian, Robert Darnton, has said that they’re working to build “a non-commercial library that would make the cultural heritage of America available to all Americans and to everyone in the world with access to the Internet.” And to do that, the library’s founders, board members, and staff will have to figure how the library will handle works still under copyright. 

They’ve been thinking about it for two and a half years already, ever since work began on this project. In the analog world, libraries can buy a copy of a book and lend it out to readers. But in the digital world, where it’s trivial work for a borrower to duplicate a book or a piece of music and disseminate it freely, where more than one person could easily “borrow” a book at the same time, it’s not clear how libraries can or should make copyrighted works digitally available to the public. Board members of the DPLA have identified copyright as the most difficult issue that the library faces: It is “the specter hanging in the background of conversations about libraries and about the DPLA,” says John Palfrey, the president of the DPLA’s board of directors. 

The DPLA has some of the same ambitions as Google Books, to which it’s often compared, and it faces one of the same key questions: How can one institution make the broad sweep of cultural creation available to as many people as possible? Google Books answered that question by scanning reams of books, making them searchable, and facing up to the legal ramifications later. The company is still fighting legal challenges to this strategy. The DPLA’s approach to this problem differs in two key ways from Google.

“We’re doing it not-for-profit. And in copyright, that distinction actually does matter,” says Palfrey. Copyright law has special exemptions carved out for libraries that allow them to use copyrighted works in ways that most consumers cannot. “It’s not an on/off switch. But it makes a difference,” he says.
The other key difference in strategy? “We’re going to do this carefully.”

That’s why the library opened with only public domain works in its collection. There are plenty of other issues to tackle without getting tangled into copyright quite yet. The DPLA itself doesn’t hold copies of the works it provides access to; it’s a collection of standardized metadata that helps users find what they’re looking for and then directs them to the site where those books, documents, movies, and photos live. Last month’s launch started working out how the DPLA would partner with other institutions and start making its larger ambitions real.

Plus, not everyone on the DPLA’s board of directors has the same ideas about how they’ll tackle copyright questions. Palfrey says they’re looking at how to proceed “through a variety of lawful means.” The library could begin interpreting existing law in a way that would let it start lending out copyrighted materials—even if it had to defend that interpretation in court. It could formulate and advocate for legislative solutions for trickier copyright issues. It could include only works that were still under copyright but no longer selling in the private market—books that had already lived out their natural lives, usually not more than a few years, as money-makers. The library could work out a licensing system that would allow copyrighted works to be loaned out, with authors earning a small fee based on the number of times their books circulated.

“The big question is, ‘How can we think creatively about ensuring the libraries can lend materials as well as or more effectively than in an analog age?’” say Palfrey. “The limits imposed by physical geography don’t have to be a limit in the digital world.”

That’s also the part that worries some authors. Think about a rare, out-of-print book. In the past, the best and easiest way to get ahold of a copy of such a book would likely have been from a library. If the local library didn’t have the book, the librarian might have been able to locate it at another library and fetch it through interlibrary loan. No problem—even if the borrower would have bought a new copy of this book, the publisher wasn’t going print it. The author gained one more reader, and only one librarian had to spend precious budget money on a book that only a few people read.

But these days, it might not be so difficult to find a copy of this rare book. “All the stuff that makes self-publishing easy makes re-publishing easy,” says Paul Aiken, the executive director of the Authors Guild, the group that challenged Google Books in court. It’ll be increasingly easy for “out-of-print” books to come back into print, either as digital works or through the magic of on-demand printers. “Once you move into stuff that’s copyright protected, digital interlibrary loan gets really complicated because it starts to look like digital publishing.”

The Authors Guild thought it had helped come up with a decent solution to all these questions in a proposed settlement, from 2009, in its suit against Google. Google would be allowed to digitize library collections—make copies of copyrighted work without paying an additional fee—and participating libraries could have access to those digital copies, with some limited ability to print them out. But in 2011 the judge in the case rejected the settlement, and the Authors Guild is still fighting with Google and with librarians associations about these questions.

It’s unlikely that these issues will be worked out without changes to copyright law. There are rumblings in Washington of a push for copyright reform—the Register of Copyrights, Maria Pallante, has been arguing for reform, and the chairman of the House Judiciary Committee, Republican Rep. Bob Goodlatte, has promised to hold a series of hearings. 

The founders of the DPLA intend to be part of these debates. 

“We will be forceful voices for sensible copyright reform that benefits that public,” says Palfrey. But they’ll also be trying to figure out how to make copyrighted works more widely available to the public in the meantime. They will need to move carefully, but they don’t intend to stop moving.

Disclosure: CJR has received funding from the Motion Picture Association of America (MPAA) to cover intellectual-property issues, but the organization has no influence on the content.

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Sarah Laskow is a writer and editor in New York City. Her work has appeared in print and online in Grist, Good, The American Prospect, Salon, The New Republic, and other publications.