Reflection of CN Tower, Toronto (Photo: IFLA CC-BY 4.0)

The Internet itself, at its inception, was designed to be open. The movements that have been built on top of it – Wikipedia, Mozilla, and of course Creative Commons – have championed openness as a means of improving the world and delivering the potential of the Internet to break down walls, bridge divides, and tackle inequity.

This is a struggle that libraries have long engaged in, more or less explicitly, more or less radically, through providing access to information for all.  However, Day 2 of the summit illustrated that the growth of the ‘open’ movement is not necessarily inevitable. Two particular challenges stood out.

A first lies in the desire to retain rights in the hope of making financial gain. At a session looking at Creative Commons in developing countries, speakers from across Africa underlined that for people living on very little, the idea of passing over an opportunity to earn extra money can seem absurd. This holds, even when the number of people who do manage to live from their creativity or research is only a small share of those who would like to.

It is an argument that may lead people to defend copyright systems that benefits those who manage rights (too often without regulation), as well as Western rightholders. However, the underlying concern is valid – how can the ‘open’ movement show that there are ways of rewarding creativity and research (both in terms of creating promise for the future, and supporting a decent quality of life) that do not depend on restricting access?

A second challenge lies in the fact that openness, in breaking down many of the barriers and rules that have doubtless created inequalities, also risks removing some of the ‘safeguards’ that prevent or counter particular types of behaviour in the real world. Is there not a risk that without these, those who are strongest, most assertive, or simply most fearless will tend to dominate?

Chris Bourg, Director of MIT Libraries, at the Creative Commons Global Summit 2018

In an excellent keynote, Chris Bourg of MIT Libraries highlighted that open could indeed be dangerous. In addition to removing safeguards to anti-social behaviour, it forced us – libraries in particular – to confront the fact that collection practices have never really been neutral (you can watch this again here).

At the individual level, it also risked making privacy into a privilege for those with the time, education and resources to take steps to protect their own data. At the community level, there was a risk of creating conflict between the preferences of particular groups, from first nations to contributors to lesbian magazines in the 1960s and 70s, and a sense of an open imperative.

On one level, the answer is unsatisfactory – it’s complicated. At the same time, this complexity is a vindication of the importance of good library work. Understanding collections and their context – and in particular, where relevant, the communities from which they come – is as crucial as understanding the value of openness. Libraries and librarians are well placed to support this work.

Originally posted in the IFLA SpeakUp! blog, run by IFLA’s FAIFE Committee.

Libraries have traditionally acted as facilitators of access to information. In this role, libraries serve as intermediaries not gatekeepers or watchdogs. Libraries diffuse the use of new technologies to their patrons, empowering and unleashing the potential of human mind. The law generally views such intermediaries, especially libraries, not as primary actors when it comes to legal liability. In fact, libraries are risk averse and strive to “do the right thing” by the law. Assessment of library culpability typically focuses on concepts of so-called secondary liability. As a result, the circumstances when a library or other intermediary would be responsible for the unlawful acts of its patrons is quite limited. This is no different when considering the adoption of 3D printing into maker and other creative library spaces.

Existing reproducing technologies in libraries can of course raise issues of liability based on copyright law but a 3D printer allows patrons to print 3-dimentional objects from a replacement part for a home appliance like a toaster oven to container shapes of your favorite beverage be it the fluted Coca-Cola bottle or the distinctive Haig Pinch-bottle scotch. These can raise additional issues of patent and trademark or trade dress, respectively.

A few simple practices, based on established legal concepts of secondary liability should assuage any legal concerns.

The copyright laws of many countries contain specific protection from secondary liability for unsupervised use of reproducing technologies, in qualifying libraries, often requiring the library to post a copyright warning notice. As not all countries have this limitation on liability, IFLA through its efforts at WIPO (World Intellectual Property Association) and elsewhere advocates for such protection across the globe. such provision­­­ should apply to 3D printing technologies.

Patrons may also post infringing design files on the library’s web space. Again, many countries have provision for ISP (Internet Service Provider) protections, often known as “take-down” rules. These provisions should also apply to the library when it acts as an ISP. As with copyright law in the realm of patent law secondary liability is easily avoided if the library does not benefit financially from the service—engaging in cost recovery only such as charging for the 3D printing filament—and refrains from active assistance in the printing process. In other words, providing instruction and training in how to use the 3D printer is acceptable but avoid active monitoring or assistance. If intercession is necessary because the device is not functioning or the patron has forgotten how to operate the device, perform the teaching moment then allow the use to continue unsupervised.

Because the 3D technology produces tangible objects, concerns beyond the intellectual property laws may arise. What if harm occurs during or after the printing process? This could occur by printer malfunction, e.g., the printer is spewing molten filament. It may be that one patron has printed a dangerous object such as a plastic knife or firearm and uses it to harm another patron. Concepts of liability in injury law, known in some countries as tort law or the law of delict in others, protects intermediaries. The law may deem a purveyor of equipment, who knows or has reason to know that the equipment may cause harm but fails to warn others, be responsible for that harm. Solution? Let’s return to our facts. When the librarian notices that 3D printer is malfunctioning, burning a patron the likely response is turn off the device and post a warning notice: “printer temporarily out of service.” In the other example a patron uses a printed object to harm another. Here too the law also intervenes. In injury law, the concept of superseding cause breaks the chain of legal causation. Even if one could connect the dots so-to-speak the law says otherwise. When a patron uses a printed object to harm another patron, an unlawful act is committed. An unlawful act is a superseding cause. It would stretch the concepts of legal obligation to hold a person liable because another put their product to nefarious use. As tragic as events may be, it is unreasonable to hold the chef knife producer or automobile manufacturer responsible when someone use their knife to stab another person or run-down another in the street.

What if the library provides instructions (“cheat-sheet” or a LibGuide) that are incorrect? At least in the United States, due in part to the First Amendment, publishers are in very rare circumstances held to be the guarantor of the information produced. ­This is the case even when the error causes harm such as misidentifying mushrooms as edible when in fact the variety is poisonous and highly toxic.

From the U.S. perspective these concepts are discussed further in the attached file and in MARY MINOW, TOMAS A. LIPINSKI AND GRETCHEN MCCORD, THE LIBRARY’S LEGAL ANSWERS FOR MAKERSPACES (ALA Editions, 2016), https://www.alastore.ala.org/detail.aspx?ID=11548.

Tomas A. Lipinski, a librarian and lawyer is Dean and Professor of the School of Information Studies at the University of Wisconsin Milwaukee and Expert Advisor to the IFLA CLM Committee. He can be reached at tlipinsk@uwm.edu

IFLA is attending the Creative Commons Global Summit 2018, held in Toronto, Canada. As well as bringing together representatives of the CC movement from around the world, it is an opportunity to look at cross-overs with people from other fields, not least libraries.

As Alex Stinson of Wikipedia pointed out in his session on lessons on working with GLAM institutions (Galleries, Libraries, Archives and Museums), libraries are naturals in this sort of environment. Given their a strong focus on providing access, they arguably represented the knowledge commons long before the term was invented.

With the Internet providing the technical possibility to share ideas, creativity and information faster and further than ever before, both the attitude and skills of libraries were coming into their own.

The only remaining step is to realise this potential. We heard great examples from the University of Alberta Libraries, who have taken an activist approach not only to producing their own open access journals (and now monographs), but also to sharing what they have learnt about this so others could follow the same path.

There were also lessons in how to try and change laws where these represented a barrier, from consultations held in museums in Argentina to efforts in Europe to take a critical approach to advocacy in Europe.

And of course there were exciting and inspiring conversations in the margins, with it clear that there is a huge desire not just to complain, but to get things done. The methods or the path to success will not be the same everywhere, but there is a shared motivation to do something practical. It was great to see how libraries are part of this.

Tomorrow, the IFLA representative will be presenting work on open licensing in Intergovernmental Organisations, as part of our efforts to promote access to information and development.