We begin with a report on a Ministerial meeting yesterday here on culture — a dialogue among the stakeholders on the Internet. [No users included, I believe.] All agreed on the principles proposed at Deauville: It is a multi-stakeholder ecosystem that complies with law. In this morning’s discussion, I was struck by the convergence: we all agree about remunerating copyright holders. [Selection effect. I favor copyright and remunerating rights holders, but not as the supreme or exclusive value.] We agree that there are more legal alternatives. We agree that the law needs to be enforced. No one argued with that. [At what cost?] And we all agree we need international cooperation, especially to fight piracy.

Now Robert Darnton, Harvard Librarian, gives an invited talk about the history of copyright.

Darnton: I am grateful to be here. And especially grateful you did not ask me to talk about the death of the book. The book is not dead. More books are being produced in print and online every year than in the previous year. This year, more than 1 million new books will be produced. China has doubled its production of books in the past ten years. Brazil has a booming book industry. Even old countries like the US find book production is increasing. We should not bemoan the death of the book.

Should we conclude that all is well in the world of books? Certainly not. Listen to the lamentations of authors, publishers, booksellers. They are clearly frightened and confused. The ground is shifting beneath their feet and they don’t know where to stake a claim. The pace of tech is terrifying. What took millennia, then centuries, then decades, now happens all the time. Homesteading in the new info ecology is made difficult by uncertainty about copyright and economics.

Throughout early modern Europe, publishing was dominated by guilds of booksellers and printers. Modern copyright did not exist, but booksellers accumulated privileges, which Condorcet objected to. These privileges (AKA patents) gave them the exclusive rights to reproduce texts, with the support of the state. The monarchy in the 17th century eliminated competitors, especially ones in the provinces, reinforcing the guild, thus gaining control of publishing. But illegal production throve. Avignon was a great center of privacy in the 18th century because it was not French. It was surrounded by police intercepting the illegal books. It took a revolution to break the hegemony of the Parisian guild. For two years after the Bastille, the French press enjoyed liberty. Condorcet and others had argued for the abolition of constraints on the free exchange of ideas. It was a utopian vision that didn’t last long.

Modern copyright began with the 1793 French copyright law that established a new model in Europe. The exclusive right to sell a text was limited to the author for lifetime + 10 years. Meanwhile, the British Statute of Anne in 1710 created copyright. Background: The stationers’ monopoly required booksellers — and all had to be members — to register. The oligarchs of the guild crushed their competitors through monopolies. They were so powerful that they provoked results even within the book trade. Parliament rejected the guild’s attempt to secure the licensing act in 1695. The British celebrate this as the beginning of the end of pre-publication censorship.

The booksellers lobbied for the modern concept of copyright. For new works: 14 years, renewable once. At its origin, copyright law tried to strike a balance between the public good and the private benefit of the copyright owner. According to a liberal view, Parliament got the balance right. But the publishers refused to comply, invoking a general principle inherent in common law: When an author creates work, he acquires an unlimited right to profit from his labor. If he sold it, the publisher owned it in perpetuity. This was Diderot’s position. The same argument occurred in France and England.

In England, the argument culminated in a 1774 Donaldson vs. Beckett that reaffirmed 14 years renewable once. Then we Americans followed in our Constitution and in the first copyright law in 1790 (“An act for the encouragement of learning”, echoing the British 1710 Act): 14 years renewable once.

The debate is still alive. The 1998 copyright extension act in the US was considerably shaped by Jack Valenti and the Hollywood lobby. It extended copyright to life + 70 (or for corporations: life + 95). We are thus putting most literature out of the public domain and into copyright that seems perpetual. Valenti was asked if he favored perpetual copyright and said “No. Copyright should last forever minus one day.”

This history is meant to emphasize the interplay of two elements that go right through the copyright debate: A principle directed toward the public gain vs. self-interest for private gain. It would be wrong-headed and naive to only assert the former. B ut to assert only the latter would be cynical. So, do we have the balance right today?

Consider knowledge and power. We all agree that patents help, but no one would want the knowledge of DNA to be exploited as private property. The privitization of knowledge has become an enclosure movement. Consider academic periodicals. Most knowledge first appears in digitized periodicals. The journal article is the principle outlet for the sciences, law, philosophy, etc. Journal publishers therefore control access to most of the knowledge being created, and they charge a fortune. The price of academic journals rose ten times faster than the rate of inflation in the 1990s. The J of Comparative Neurology is $29,113/year. The Brain costs $23,000. The average list price in chemistry is over $3,000. Most of the research was subsidized by tax payers. It belongs in the public domain. But commercial publishers have fenced off parts of that domain and exploited it. Their profit margins runs as high as 40%. Why aren’t they constrained by the laws of supply and domain? Because they have crowded competitors out, and the demand is not elastic: Research libraries cannot cancel their subscriptions without an uproar from the faculty. Of course, professors and students produced the research and provided it for free to the publishers. Academics are therefore complicit. They advance their prestige by publishing in journals, but they fail to understand the damage they’re doing to the Republic of Letters.

How to reverse this trend? Open access journals. Journals that are subsidized at the production end and are made free to consumers. They get more readers, too, which is not surprising since search engines index them and it’s easy for readers to get to them. Open Access is easy access, and the ease has economic consequences. Doctors, journalists, researchers, housewives, nearly everyone wants information fast and costless. Open Access is the answer. It is a little simple, but it’s the direction we have to take to address this problem at least in academic journals.

But the Forum is thinking about other things. I admire Google for its technical prowess, but also because it demonstrated that free access to info can be profitable. But it ran into problems when it began to digitize books and make them available. It got sued for alleged breach of copyright. It tried to settle by turning it into a gigantic business and sharing the profits with the authors and publishers who sued them. Libraries had provided the books. Now they’d have to buy them back at a price set by Google. Google was fencing off access to knowledge. A federal judge rejected it because, among other points, it threatened to create a monopoly. By controlling access to books, Google occupied a position similar to that of the guilds in London and Paris.

So why not create a library as great as anything imagined by Google, but that would make works available to users free of charge? Harvard held a workshop on Oct. 1 2010 to explore this. Like Condorcet, a utopian fantasy? But it turns out to be eminently reasonable. A steering committee, a secretariat, 6 workgroups were established. A year later we launched the Digital Public Library of America at a conference hosted by the major cultural institutions in DC, and in April in 2013 we’ll have a preliminary version of it.

Let me emphasize two points. 1. The DPLA will serve a wide an varied constituency throughout the US. It will be a force in education, and will provide a stimulus to the economy by putting knowledge to work. 2. It will spread to everyone on the globe. The DPLA’s technical infrastructure is being designed to be interoperable with Europeana, which is aggregating the digital collections of 27 companies. National digital libraries are sprouting up everywhere, even Mongolia. We need to bring them together. Books have never respected boundaries. Within a few decades, we’ll have worldwide access to all the books in the world, and images, recordings, films, etc.

Of course a lot remains to be done. But, the book is dead? Long live the book!

Q: It is patronizing to think that the USA and Europe will set the policy here. India and China will set this policy.

A: We need international collaboration. And we need an infrastructure that is interoperable.

Categories: copyright, culture, libraries, open access, too big to know dw