When the new president, if she is Hillary Clinton, moves into the White House, will she unpack her library in the spirit of Walter Benjamin—releasing memories of adventures attached to books? Not likely. Will she think of books and libraries at all? Probably not. She has more important things to do. But the arrival of a new president at this moment, not long after the dawn of the digital age, could open an opportunity to reorient literature and learning in a way that was envisioned by the Founders of our country, one that would bring books within the reach of the entire citizenry.
Article I, Section 8, Clause 8 of the United States Constitution gives Congress the power “to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” The Copyright Act of 1790, “An Act for the Encouragement of Learning,” fixed that time limit at fourteen years, renewable once. In creating copyright, the Founders intended to promote a public good, the advancement of learning, while leaving room for private interest—a temporary monopoly on the sale of books.
What are the proportions of the public and the private interests in the world of books today? The Copyright Term Extension Act of 1998 (also known as the Mickey Mouse Protection Act, because the copyright on Mickey was soon to expire) extended copyright to the life of the author plus seventy years—that is, more than a century in most cases. The vast majority of books published in the twentieth century remain excluded from the public domain.
Copyright is but one example of how the republic has veered off the course set by the Founders. They expected the printing press and the postal service to maintain civic health by spreading information and knowledge. The Internet offers much greater possibilities, yet “the Progress of Science and useful Arts” has been thwarted by commercial corporations, which dam up and drain off knowledge into private profit centers.
Fortunately, when the new president settles in, a new leader will have taken charge of the world’s greatest library, located only 2.2 miles from the White House. Carla Hayden, who was sworn in as librarian of Congress on September 14, demonstrated her commitment to the public good during her tenure as director of the Enoch Pratt Free Library in Baltimore. She extended the library’s services to the underprivileged sectors of Baltimore, kept the libraries open when Baltimore exploded in protest after the death of Freddie Gray in 2015, and defended the privacy of readers against the threat of the Patriot Act when she was president of the American Library Association in 2003–2004. In nominating her, President Obama stressed, “Hayden has devoted her career to modernizing libraries so that everyone can participate in today’s digital culture.”
Democratization of access to culture should be a high priority for the new president and the new librarian, but how can they bring it about? We live in a real world of power, wealth, powerlessness, and poverty, where vested interests dominate Congress and the public has little voice in the determination of cultural policies. In fact, much of the world of learning looks dysfunctional if considered as an environment for producing and distributing knowledge. Three tendencies illustrate its underlying irrationality.
First, is it not reasonable to expect that the public should have free access to publicly funded research? It does not. Three giant publishers—RELX Group (formerly Reed Elsevier), Wiley-Blackwell, and Springer—publish 42 percent of all scholarly articles, and they make giant profits from them: in the case of RELX, a 37 percent profit on an income of £2.07 billion from its science, medical, and technology journals.
The current budget of the National Institutes of Health is $30.4 billion, which funds research resulting in the publication of about 100,000 papers a year. Taxpayers provide the money, but they were not able to consult those papers free of charge until 2008, when the NIH required that articles based on its grants be made available from an open-access repository, PubMed Central. Lobbyists for the commercial publishers then undercut that requirement by getting the NIH to accept a twelve-month embargo, which would prevent public accessibility long enough for them to cream off the demand.
Not content with that victory, the lobbyists tried to abolish the NIH mandate in the so-called Research Works Act, a bill introduced in Congress in December 2011 and championed by Elsevier. The bill was withdrawn two months later following a wave of public protest, but the lobbyists are still at work, trying to water down the Fair Access to Science and Technology Research Act (FASTR), first introduced in 2013.
FASTR would go beyond the NIH requirement, because it would give the public free access to research funded by all federal agencies with research budgets of $100 million or more. In its first version, it would require articles to be made available from digital repositories within six months of their publication. The embargo was later extended to twelve months; but even so, FASTR foundered in Congress, just as a similar bill, the Federal Research Public Access Act (FRPAA), did in 2006, 2010, and 2012. Faced with this intransigence, the White House issued a directive to enforce the basic provisions of FASTR for the rest of the Obama presidency. The new president should continue the directive and do everything possible to convert it into law.
The second irrational practice compounds the damage of the first, because it implicates academics and libraries as well as commercial publishers in what has become the dominant mode of diffusing knowledge. Academics produce most of the country’s original research. They write the articles that convey the research; they referee the articles for scholarly journals; they serve on the journals’ editorial boards; and they provide all these services free of charge. Then, in effect, they buy back the product of their labor at an exorbitant price in the form of subscriptions to academic journals. Of course, they do not pay for the subscriptions themselves. Their academic libraries do—at enormous cost to the whole world of learning.
According to statistics furnished by the American Library Association for 2012, academic libraries spent $2.8 billion on information resources, of which half was for electronic serial subscriptions. Stanford University pays $1.2 million for annual subscriptions to four hundred RELX journals, which contain a large number of articles written by its own faculty.
How to stop the hemorrhaging? Some academics have advocated canceling subscriptions to the least read or most expensive journals. Others have recommended refusing to write for them. Within the last few years the editorial boards of twenty-three journals (eight of them published by RELX) have collectively resigned in protest against the excessive prices. Of course, there is no escape from the costs of publishing journals. But nonprofit, professional associations, such as the American Historical Association, have demonstrated that the costs can be covered by publishing excellent work at reasonable prices. The problem concerns commercial journals that have a monopoly on the literature in specialized fields, and they can be combatted by competition—that is, the creation of open-access journals.
Open-access journals are available online and free of charge. If they are not supported by a professional association or a foundation, they sometimes (about 30 percent of the time) are funded by processing fees, which come from research grants or institutional subsidies, not from the author’s pocket. The early success of open-access journals like the Public Library of Science has created a rising tide, which is beginning to reverse the commercialization of access to knowledge. There now are 9,199 high-quality, peer-reviewed, open-access journals. Several thousand subscription journals have converted to open access in one form or another, and they have found different solutions to the problem of sustaining their publication. Not only do they relieve the budgets of libraries, but they provide information quickly and free of charge to small businesses and other enterprises that can convert it into profits.
Should the new librarian of Congress watch these new developments from the sidelines? No: she should champion Open Access. She should correct the common misconceptions about its nature—the belief, for example, that it sacrifices peer review—and explain its benefits to university administrators and journal editors who are wary about changing traditional modes of diffusing research.
The third irrational element in the world of knowledge has to do with books and authors. The commercial life of a book rarely lasts for more than a few years. Once its sales are exhausted, the publisher will not profit from it, and the author, who has ceased to collect royalties, will have but one desire: to keep the book alive by getting it to readers. Yet the book will remain unread, except by a few people who can obtain it from a library or seek it out secondhand; and libraries can afford to buy only a small proportion of the books that are printed. Not only have their acquisitions budgets shrunk, but new books continue to be produced by conventional publishers at a rate of more than 300,000 a year in the United States—and if self-published books are included in the count, the number is about 700,000. To give new life to commercially dead books, it would be necessary to digitize them and make them publicly available, and copyright law makes that solution look utopian, even though mass digitization would serve the interests of authors and publishers as well as the general public.
Can nothing be done to dislodge the irrationality built into the system for communicating knowledge? Before the putative new president sits down at her desk and the new librarian of Congress rearranges the furniture in her office, we should pause for a moment of uninhibited speculation. Libraries lend themselves to utopian fantasies. They can be places for combining endless, unexpected trains of thought, as in Alberto Manguel’s The Library at Night. They can also set off nightmares, as in “The Library of Babel,” a dystopian fantasy by Jorge Luis Borges, one of Manguel’s predecessors at the National Library of Argentina. Borges’s vision of a hopeless search for truth in an infinite world of books suggests the sense of helplessness that can overcome anyone lost in cyberspace. But librarians have acquired skills to help readers find a way through the digital clouds to the information they desire; and above all, the library stands for liberty, as Virginia Woolf insisted: “Everywhere else we may be bound by laws and conventions—there we have none.”
How can we make this liberty an everyday experience for ordinary citizens? A hunt through recent publications for ideas about designing the libraries’ future turned out to be disappointing. For example, a book with a promising title, Fantasies of the Library, has nothing to say about democratizing access to our culture. It focuses on the library as space—space in which to experiment with modes of expression that could touch the life of anyone who wandered into it. The book takes aim at Google: “We cannot leave what a library should do to the world’s wealthiest corporation.” And it invokes the “ethos of the public library” as dedication to “democratic ideals of equality and free access to knowledge.”
But in pursuing these ideals, the book develops what it calls a “curatorial agenda,” which turns out to be a program for empowering curators. Instead of merely organizing exhibitions, it argues, they should use the library as a space to express their own creativity and to transform library materials into art installations. Served up with pretentious jargon and gimmicky page design, Fantasies of the Library may raise the consciousness of curators, but it pays no attention to the needs of the public. We need bolder, more outward-looking fantasies about the future of our libraries.
One fantasy could de-demonize Google and revive its original project: digitize all the books in the world and make them available to all the readers in the world—not for money, as Google intended, but for free. Suppose that the new librarian of Congress decided to open the Library to everyone by digitizing all its holdings and making them available from a National Digital Repository. That sounds impossible, but much of the work has already been done by four organizations: Google, which, if it chose, could contribute all of the books that are not covered by copyright from its database of 20 million works; the Digital Public Library of America (DPLA), which already makes available 14 million items from a network of two thousand research libraries, museums, and archives; HathiTrust, a digital preservation repository, which contains over 13 million volumes; and the Internet Archive, which makes digital copies available from most of its holdings of 10 million texts. The lack of precise statistics (and their incompatibility: they concern books, items, and texts) makes it impossible to calculate the amount of duplication in these four sources, but their combined holdings probably would come to more than half of the 24 million cataloged books in the Library of Congress. The librarian would not face an impossible task.
Hayden’s main problem concerns copyright, which covers most books published after 1923 and all books published after 1964. An unknown number of books published between those dates are orphans—that is, books covered by copyrights whose owners, if they exist, cannot be identified, even by long and costly research. No one knows how many orphan books exist—probably hundreds of thousands, perhaps more than a million. It is impossible to do a diligent search for all of the potential owners of their copyrights. Yet a library could be liable for $150,000 in damages for each case of copyright infringement if it made its orphan books available online and the owners surfaced and sued.
The orphan-book problem may seem esoteric, but it illustrates the difficulties of making twentieth-century literature freely available to readers in the twenty-first century. The librarian of Congress, who oversees the Copyright Office, is well placed to solve the problem and to do much more. Her library is like no other in the country. It is a national institution, the main repository of our country’s culture. By making its holdings available to the citizens, it would fulfill a mission defined by the Constitution. If sued for copyright infringement, it could remove the plaintiff’s book from its digital repository.
Better yet, it could keep the book online and take advantage of the “fair use” provision of the 1976 copyright act, using arguments that have been effective in recent court cases, notably a federal court decision of October 2012, which supported HathiTrust against a suit brought by the Authors Guild. The library could claim, for example, that in making an out-of-print book freely accessible, it created no market damage, for the book had not been selling; and it could also argue that in digitizing the book, its action had been “transformative,” changing a commercially unviable object into a digital component of a corpus that enriches the life of the entire country.
Lawyers and librarians have batted these arguments around for years, and courts are beginning to recognize the public interest at the heart of the litigation. What we need now is a librarian of Congress wielding a big stick and speaking softly but firmly from her bully pulpit on Capitol Hill. Citizens may not be aware of how much is at stake, but public librarians could mobilize support from their constituents. We can imagine their response: Go for it, Ms. Librarian of Congress! Fight off the lobbyists, find the funds, and digitize every book in your collection, or at least every book published during the last three quarters of the twentieth century. Form an alliance with the DPLA, HathiTrust, the Internet Archive, and even, if possible, with Google. Make the Library of Congress a nerve center in a distributed network of aggregators, which will transmit digital texts—of images, recordings, and films as well as books—to every sector of the body politic. Democratize access to our country’s culture.
And while you are at it, the librarians could add: make your digital repository double as a conservatory. The Library of Congress is the country’s only deposit library for books (Great Britain has six). It should become the deposit library of all important digital material (what qualifies as “important” would have to be determined, as there must be some selection), and it should take the lead in developing preservation programs throughout the country.
Imagine then another cry from well-informed librarians: resist the proposal to make the Copyright Office an independent agency. It needs a thorough overhaul, but it will be overrun by lobbyists if it is separated from the Library of Congress, as Maria Pallante, its current director, has proposed. It already is too partial to commercial interests: witness its support for SOPA (Stop Online Piracy Act) and PIPA (Protect Intellectual Property Act), which would have extended copyright even further, eliminated “safe harbor” protections for making digitized works accessible, and even blocked websites. According to a recent report by Public Knowledge, a nonprofit advocacy organization in Washington, D.C.:
The Copyright Office, isolated from effective mechanisms of governmental accountability, has become deeply and troublingly captured by major entertainment industries and other rightsholder interests. As a result, it has regularly disregarded the concerns of other stakeholders, such as libraries, archives, and the public at large.
If the librarian of Congress consulted her colleagues in America’s nine thousand public libraries and four thousand college and university libraries, they probably would urge her to make America’s cultural heritage available to all Americans. Should not access to a fully digitized national library system be treated as a public good, one comparable to access to drinking water and electricity? Why not build a broadband system that would integrate electronic communication in the same way that President Eisenhower created a national system of superhighways? The law has concentrated on the rights of authors, which of course must be protected and respected, and are legitimate; but what about the rights of readers?
One could spin out further fantasies, some more feasible than others and many requiring legislation, an unlikely prospect unless the new president can convince Congress to put the public good above private interests. Before she can formulate general programs, however, the new librarian of Congress will need to concentrate on concrete tasks. She must shelve and catalog an enormous backlog of books. She must repair a broken system of information technology and create an infrastructure that will make it possible for the library’s computers to talk to one another.
She could easily spend all her energy getting ducks in a row. But this is the time to think big about designing the digital future. It is a rare moment when a new regime can realign the modes of communication so that they serve the public interest, as the Constitution originally intended. Two powerful women located at opposite ends of the axis between Capitol Hill and the White House could revive cultural institutions, restore the public domain, and repair the fault lines that run through our information system. More power to them.
Give Self-Published Books a Chance November 3, 2016
A Way to Make the National Digital Library Work: An Exchange December 1, 2016