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Issue #24 August 29, 2013 Aug 29, 2013 Aug 29
Issue #9 January 31, 2013 Jan 31, 2013 Jan 31
Issue #1 October 11, 2012 Oct 11, 2012 Oct 11
From Issue #13 March 28, 2013

Locked Stacks

New legislation may thaw the British Library’s digitization effort, but it brings its own set of risks.

By Rosie J. Spinks Twitter icon 

Few institutions in the United Kingdom display the British penchant for rules and fastidiousness better than the British Library. Every book published in the UK must, by law, have a copy deposited at the library, and it describes itself as the “custodian of the nation’s memory.” The library maintains an unparalleled catalog of roughly 150 million items, including the Magna Carta, Leonardo DaVinci’s notebook, the audio of Nelson Mandela’s Rivonia trial speech, and the world’s earliest-dated printed book, the Diamond Sutra.

It is sensible, of course, that those and other unique or precious items are kept far from normal users’ reach. But what’s surprising is that so many millions of the more prosaic items in the institution’s catalog aren’t particularly easy to get at, either.

No book may leave the library’s heavily guarded reading rooms — let alone the library building itself — and all bags, chewing gum, coats, pens, and water bottles must be surrendered before you can even see a bookshelf. Guards are everywhere, and one checks your photo ID before you enter a reading room. They also make you open your laptop to ensure that no torn-out pages are tucked within when you leave.

This may seem a little draconian, even in a nation that has mastered the art of politely telling its citizens what to do. But the library has good reason for this security theater: In 2008 a user checked out and defaced scores of books, incurring £400,000 ($600,000) of irreparable damage in the process.

However, the days of limiting user access via dust jackets and zealous security guards are coming to a close. For media organizations and cultural institutions all over the world, digitization represents a do-or-die scenario. Luddites may love the smell of a musty old book, but refusing to get ahead of the curve (as the music industry so infamously did when it first faced peer-to-peer file-sharing in the early naughties) will almost certainly result in drastic revenue loss. While revenue is a less pressing issue for the library and its peers compared to purely commercial outlets, they face a worse consequence: complete irrelevancy to their users.

As the British Library makes a glacially paced transition from being an analog behemoth to being a digitized one, an opportunity arises to lower the institution’s ivory tower-like walls and to create extensive access to its impressive catalog. The only problems, of course, are a lack of money and the currently insurmountable problem of UK copyright law.

Digital by default

Large public-sector institutions aren’t generally known for being at the cutting edge of technological changes. But if you read the library’s 2020 vision document, you might be surprised to find that it has quite a visionary tone to it. It is bold enough to imagine a world where “the word ‘digital’ will have no meaning because digital will be the default.”

As difficult as it is to map out a digitization blueprint with a framework that’s amorphous and swiftly changing, it’s even more expensive to carry one out. The British Library faces a serious problem in this last regard: Even if they do manage to become a fully digitized institution, the cost of maintaining their physical archive isn’t going to fade any time soon.

One way the library is attempting to ease this financial burden is through various commercial partnerships, including one with Google, which is currently digitizing 250,000 of the library’s books published from 1700 to 1870. But the size of the task is nothing short of mind-boggling. A strategy document for 2008–2011 estimated that the library’s digitization efforts have addressed only 1% of its total catalog thus far.

Simon Bell, head of partnerships and licensing for the British Library, says that the necessity to digitize in the absence of new funding sources means that curators must re-assess what’s been the foundation of their collection policy. “We’ve always operated in the past on the very crude basis that we collect everything,” Bell says. “But in a world in which everything is being updated all the time, that becomes impossible. So an element of selection becomes part of the process, and we have to make the decision to be more careful about what we collect.”

The good news is that the digitization task will likely get somewhat easier as time progresses. A study the library commissioned of future research material forecasts that “by 2020 80% of all commercially published educational material will be available electronically, 40% exclusively electronically.”

In addition to altering long-held collection criteria and finding new funding sources, the library faces another, more macro-level obstacle: Technology changes at a much faster rate than such a large institution can keep up with. As if to point to the limitations of their planning itself, its vision for 2020 reminds readers that “the iPhone, Facebook, YouTube, and Twitter did not exist 10 years ago” and that soon enough, “users will expect seamless access to information and services, provided anywhere, in real time.” Whether or not the library thinks it will be able to keep up with those demands is anyone’s guess.

However fundamental these challenges are, though, they pale in comparison to a more imminent and potentially constraining one: Even if the library figures out how to efficiently and cost-effectively digitize its immense catalog, does it have the legal right and licensing privileges to do so?

The Google review

Like many things they purport to have invented, copyright law is something the British still seem to be mastering in a modern context.

In the past six years, there have been four reviews of copyright law in the UK, none of which have resulted in rule changes. The most recent — snidely referred to by some as the “Google review” — was called for by Prime Minister David Cameron after he says the founders of the tech giant said that because of copyright laws that are not fit for the digital age, they could never have started their company in Britain. (Oddly enough, there’s no public citation for this alleged Google quote, and the prime minister’s office has denied it came from private conversation. Still, Google supported the prime minister’s assertion after it was made.)

Some of the key recommendations put forward in the review (called the Hargreaves Review after its chair, Ian Hargreaves) have been included as part of the Enterprise and Regulatory Reform Bill (ERR), which is currently moving its way through the British Parliament. These copyright provisions are opposed by the Federation of Audio and Visual Libraries (FOCAL) along with a consortium that includes the AP, Getty Images, Reuters, and others, which has threatened legal action against the bill.

FOCAL’s legal expert, copyright lawyer Hubert Best, says that the bill would change how work could be used without an owner’s permission, shorten the duration of copyright protection, and create new rules for orphan works, where the copyright owner is either unknown or cannot be found. He and the consortium are also alarmed that the ERR would allow changes to copyright regulations to be made by a ministerial order, which isn’t subject to full Parliamentary scrutiny.

The issues about permission for known owners and duration affect commercial entities the most, while rules for orphan works would have the greatest impact on institutions like the British Library. The library refers to the collection of titles published in the late 19th century and thereafter as a “black hole” of content. Because the UK’s duration of copyright is the life of the creator plus 70 years, many of these titles could potentially still be under protection.

Consider a writer who died in 1942 at the age of 85; his or her lifetime of works remained under protection until this year. That could include published writing from as early as 1877 were that person to have precociously produced something when 20 years old. The latest safe period in which it’s highly improbable that any works remain under copyright protection is the 1860s.

Thus, the library maintains that it can’t digitize this content until they know the rightful owner of each work. But given the size of their catalog, it would take longer to research ownership than to wait for works to be more or less guaranteed to be beyond the lifetime of any author to have written.

Use, then verify

The Hargreaves Review recommended a way to sidestep finding owners in advance of digitizing work by adopting a notion from Scandinavian law called extended collective licensing (ECL). Referred to by some critics as a “use now, pay later” approach, ECL allows authorized collecting societies to license work on behalf of creators.

It’s a way of streamlining the rights-clearing process, and it puts a payment infrastructure in place to address cases where the rightful owner may appear and want compensation for their work. If they don’t wish their work to be licensed to others, copyright owners must “opt out” of such a scheme, something which critics say is an undue burden.

In the United States, Google tried to resolve a similar problem around orphan works — among several other legal points — when it launched a scanning program in conjunction with academic libraries nearly a decade ago. America has a bright line for the public domain of printed works: Those published in 1922 and before are all in the public domain; most, but not all, works produced from 1923 to 1977 are protected until 95 years after publication. (In 1978, UK-like rules were adopted.)

But Google scanned books that were clearly still under copyright, as well as those in the public domain. It allowed full-text searching of all books and returned snippets of results from in-copyright titles. In a long-running lawsuit between Google and groups representing publishers and authors, a settlement proposed at one point (and rejected by the judge) would have allowed Google to show and collect fees on behalf of rightsholders of orphan works and pay up or remove titles if such owners claimed the works, similar to the scheme ECL would put in place. Neither the clarity of a cutoff date nor a potential lawsuit settlement offers any guidance in the UK.

James Boyle, a law professor at Duke University and co-founder of the Center for the Study of the Public Domain, sat on the Hargreaves Commission as an unpaid expert advisor. He sees a profound cultural misstep that the Hargreaves Commission tried to address with ECL. “People aren’t earning money from [orphan works] already, so what we’ve done is denied the orphan culture of the 20th century for [no one’s commercial] benefit, right at the moment when the technology to make it available to every citizen became available,” Boyle says.

“[Hargreaves] is trying to say that the moral warrant for access to culture should be being a human being and a citizen of the country. That’s what the tradition of libraries stands for, and that can coexist with a vibrant and vigorous commercial sector,” he says. As the law stands now, copyright protection is “acting as a fence” rather than “as a spur to make culture available.”

While Best acknowledges the need for exceptions that allow public institutions like the British Library to make culture more widely available to its users, he worries that that “intention is expressed much more narrowly” than what the language of the bill would allow to happen.

“Organizations like the BL, the British Film Institute, and others are our national deposit libraries, so they contain tons of material because they’re the deposit library, not because the rightsholders have granted them the rights to use it,” Best says. “I think it’s terribly important that somehow these proposals cater to the different sectors appropriately, without actually undercutting legitimate economic rights and expectations.”

In addition, some creators would dispute Boyle’s claim that no one is currently benefiting commercially from what would become orphan works under the ERR bill. Photographers such as Jonathan Webb, who licenses his aerial photographs via a Web site, are concerned about putting the responsibility of a “diligent search” in the hands of consumers. Such a change would devastate his business, he says.

Webb belongs to the advocacy group Stop43, a consortium of photographers who oppose ECL and orphan-works legislation. The group states that licensing law must be tailored according to the type of media, each with “differing uses and value chains.” This is particularly important for photographs, which when posted online — especially on social media networks — can easily lose or be stripped of all the embedded metadata that identify the owner and copyright terms. If there is no watermark, Webb says, an image can essentially be orphaned just by being posted online.

“Currently my customers find my images on the Internet and then are obliged by law to buy a license from me to use the image,” Webb says. “However, under the proposed ERR, customers will alternatively be able to license my image as an orphan work. [This] will be a fraction of my normal price, and so customers will have a big incentive to remove my name from an image and license it as an orphan Work.”

The alternative to ECL that many propose is what is known as a “copyright hub.” Currently in an embryonic stage, this system would act as a marketplace for licensed material, and it would connect consumers directly to rightsholders rather than inserting a middleman or requiring consumers to pay licensing societies. While the Hargreaves Review also endorsed the idea of such a hub, the current clauses concerning copyright in the ERR do not cover this terrain.

As the ERR bill makes its way through Parliament, the library is cautiously optimistic, well aware that without this legislation the 150-year “black hole” remains an insurmountable obstacle for their digitization plans. While the EU Orphan Works Directive, passed in October of 2012, could theoretically give the library the leeway it needs to digitize this content, Simon Bell says the library is opting to await the resolution of UK law simply because it’s “closer to home.”

Writing in support of the legislation in the New Statesman, Benjamin White, the library’s head of intellectual property, says that copyright law must “reflect the realities of the day,” and that the Hargreaves suggestions included in the ERR “would serve the widest interests of society and enable growth.”

Of all the criticisms of Hargreaves, James Boyle says he understands the distrust of the law-making process the least. With hundreds of data-based submissions from numerous sectors being used to create the recommendations, he views it as an “exemplary” democratic process. “I don’t understand the set of incentives that the critics imagine would lead judges and decision members to do the kinds of radical things they’re conjuring up. To me that seems like scaremongering.”

Although the Berne Convention of 1886 firmly established copyright as a property right, Boyle says, copyright law is about benefiting the public via access to culture as much as it is about protecting the rights of creators. Most agree that a solution for copyright in the digital age is essential, and to his assessment, the process that put together the Hargreaves Review was as inclusive as possible. “Anyone who says ‘this isn’t the right way’ has to say what they would do that’s better,” Boyle says. “What we have right now is a cultural train wreck, and this [legislation] is trying to stop that train wreck.”

Rosie Spinks is a Los Angeles-born, London-based freelance journalist and storyteller. Insatiably curious and optimistic, she writes about sustainability, women's issues, social justice, tech, culture, and design for outlets such as GOOD, Dwell, EcoSalon, The Ecologist, and Sierra Magazine. She loves keeping things simple and hates staying in one place.

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