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.