It’s not books, but electronic content like E-Books, that has publishers worried. Libraries, like the rest of us, have long been governed under the "First Sale" doctrine, which basically allows the purchaser of a book free rein you can sell it, loan it out, or use it as kindling. But you can't make multiple copies for distribution. And as digital publishing becomes more common, the duplication of content keeps getting easier and more practical. Instead of standing at the photocopier for hours to make an illicit copy of a John Grisham novel, you can in theory now just copy a file and email it to thousands of your close personal friends and Mr. Grisham and his publisher wouldn't see a dime.
Just as Napster made it easy to get songs without buying a CD, publishers fear a proliferation of downloaded material that can easily be obtained for free. Libraries, meanwhile, are getting nervous about how, exactly, the publishers will try to control the bottom line will they have to pay extra to maintain rights to materials, instead of buying a book and owning it forever?
The solution? No one knows yet. And fear of the unknown is making the debate nerve-racking for both sides.
Allen Adler, VP for legal and government affairs of the Association of American Publishers (AAP), describes the library community as one of "the most important markets and strongest allies" for the publishing industry, especially on matters of first amendments protection. But, he says, the trepidation felt by both sides of the issue is understandable. "We are looking at the technology and at the ways that libraries serve their patrons, and we’re concerned that if you logically apply this new technology to the service of patrons, then you could have a situation where libraries are violating what we think is fair use."
On the other hand, he notes, libraries see that the business of publishers is to "disseminate matter at a profit and they’re concerned that we will use [these advances] to maximize that profit by restricting the ability of the public to use works the way they have."
One of the issues that concerns the publishers is a technological byproduct of transferring digital files even with the best of intentions, Adler says, digital transmission creates temporary copies that the library will retain while the user has the content. One solution would be a ‘simultaneous transmission and deletion’ system, where the library deletes its copy while the borrower has it, and the borrower deletes it upon "returning" it to the library.
Of course, that would require working on the honor system, at least at this point in the technological evolution. "And looking at the way the public adapted to Napster," says Adler, "obviously if they can get something desirable for free, without compensating the producer or creator, many people are glad to do that."
That concern shouldn’t be aimed at libraries, says Miriam Nisbet, the legal counsel for the American Library Association (ALA). The ease with which materials can be duplicated, she says, is a legitimate concern for the publishers. But "from our standpoint, librarians are the most conscientious people in the world about copyright and adhering to it and making sure their patrons know what they can and cannot do."
Though she sympathizes with the publishers’ interest in maintaining a profit margin, she says "the libraries are concerned because they pay lots of money for these materials, for the right to let people access them. We’re certainly not trying to give people access they shouldn’t have."
"People are feeling unsettled because they’re not sure how the rules apply," she adds. In fact, when Congress passed the Digital Copyright Act in 1998 they shot this particular issue back to the Copyright Office, which was supposed to release a study on the subject last fall. The library and publishing communities are still waiting (with bated breath, according to Adler) for that report to help clear things up.
What this isn’t, Adler insists, is an attempt by publishers to "lock up" information. It’s simply the fact that "neither side has been able to figure out how to take advantage of the new technological capabilities without alarming the people they work with."
As the two sides circle each other warily, each is awaiting guidance from that long-delayed Copyright Office study. Meanwhile, library users can only hope that nobody pulls the plug on their books.