Copyright Week Day 3: Public Domain, Privatised Knowledge, and Libraries

Copyright Week Day 3 Image1 January 2019 saw a greater than usual focus on the importance of the public domain. For the first time in 20 years, new works started to go out of copyright in the United States, following a 20 year hiatus.

There was a lot of celebration – and performances of ‘Yes, We Have No Bananas’. But there was also reflection on the importance of the public domain itself.

One piece, a couple of weeks earlier by James Boyle in The Economist but revisited for the occasion, highlighted the idea that there was a tragedy of the digital commons.

The author referred back to the idea that without a form of government (or privatisation), common resources would quickly disappear as individuals seek to maximise their own gain, at the cost of others.

Villagers would allow their cows to eat all of the grass on the common land. A farmer would take all of the water. A logging company would cut down all of the trees.

The author worries that the same arguments are being used to close off the digital commons, under the pretence that without this control (either by government, or by private rightholders), nothing would be created.

Starting in the 90s, he argues, this has led to rules on digital content which have risked rewarding the ideas of the past at the expense of the ideas of the future.

He suggests that open initiatives, such as open source software, the Human Genome Project, or Creative Commons have shown what can be done when knowledge is shared.

 

Libraries, the Commons, and the Not-100%-Private

For the time being, openly licenced work remains just one model under which works are shared. The retention of rights – the privatisation of knowledge – remains common. This is where the limitations and exceptions to copyright that laws often give to libraries come in.

These allow for some limited access and use possibilities, in the case of libraries for a public interest goal. They don’t make works ‘common’, but they make them a little less private. They allow readers to analyse, to copy or quote short sections, to critique and parody, and to use for research amongst other things.

This is important. Copyright is a monopoly power, and brings with it the problems associated with monopolies – under-supply and over-charging. This benefits the rightholder, but leads to costs for the consumer – usually those less able to pay.

The problem now is that these flexibilities are being increasingly restricted. Thanks to a mixture of technology (digital rights management) and a failure to update laws (in particular to account for the shift from paper to digital), the control enjoyed by rightholders has never been greater.

Add to this the growing pressure on platforms to pre-filter any uploaded content in case of potential copyright violation (likely also excluding large amounts of material making use of exceptions and limitations), and the possibility to privatise knowledge completely has never been greater.

This has been good news for rightholders, and has doubtless led to some new revenue streams. It has also created new possibilities for price discrimination (do you pay for read-only access? Can you copy elements? Can you carry out text and data mining?).

However, it risks creating greater costs to consumers and future than it creates benefits to producers, as monopoly powers become more complete, and there is little incentive, except among the more far-sighted, to allow those limited, public interest uses that are at the heart of what libraries do.

 

This is why the effort of libraries to encourage exceptions and limitations to copyright goes hand-in-hand with their support for open access.

The two efforts – to protect and expand the public domain, and ensure that other works are just public enough to contribute to further creativity (and in particular that libraries can fulfil their missions!), without undermining the business model behind their creation – are both necessary.

Read more about IFLA’s work on copyright.

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