April 9, 2013
The utopian pragmatism of the National Digital Public Library
by Claire Kelley
We’ve been counting down the days to the April 18th launch of the Digital Public Library of America, and in the New York Review of Books last week, Robert Darnton, director of Harvard University’s library system, gives more details about the library and its goals.
Darnton, a historian of the 18th century, frames his discussion of the library’s mission by examining some of the principles of the American Revolution and goes on to describe the library’s mission as being guided by utopianism and pragmatism, two elements which he argues were at the center of the War for Independence. The impulse to make library collections accessible to all citizens—which is the goal of the NDPL—is a utopian conviction to preserve our cultural heritage, and a pragmatic goal to make use of the technology that now exists to reach readers.
Now that the financial and technical framework of the NDPL is in place, the legal and copyright issues appear to be the most daunting pragmatic hurdles. Darnton goes on to address the specter of Google Book Search, whose settlement to digitize and sell millions of books, was struck down by by the courts on March 23, 2011. The NDPL is not meant to replace that project, Darnton insists. But he admits that he was both galvanized to fight against the commercialization of digitized library holdings and simultaneously inspired by the boldness of Google’s attempt.
The copyright problems that Google encountered will also be issues for the DPL. In a previous article, Darnton outlines the copyright challenges, particularly for “orphan books,” whose copyright owners have not been identified:
As the Google case demonstrated, nearly everything published since 1923, when copyright restrictions begin to apply, is now out of bounds for digitization and distribution. The DPLA must respect copyright. In order to succeed where Google failed, it will have to include several million orphan books; and it will not be able to do that unless Congress clears the way by appropriate legislation. Congress nearly passed bills concerning orphan books in 2006 and 2008. It failed in part because of the uncertainty surrounding Google Book Search. A not-for-profit digital library truly devoted to the public welfare could be of such benefit to their constituents that members of Congress might pass a new bill carefully designed to protect the DPLA from litigation should rightsholders of orphan books be located and bring suit for damages.
The NDPL will be established in increments, and in his latest piece, Darnton remains hopeful that some legal issues can be resolved:
Court cases during the last few months have opened up the possibility that the fair use provision of the copyright act of 1976 could be extended to make more recent books available for certain purposes, such as service to the visually impaired and some forms of teaching. And if, as expected, the DPLA excludes books that are still selling on the market (most exhaust their commercial viability within a few years), authors and publishers might grant the exercise of their rights to the DPLA.
The brand new DPLA Executive Director Daniel Cohen recently told the The Verge about his ideas to deal with the copyright challenges that might prevent books from being included in the NDPL collection.
He wants to find ways for public libraries to engage in collective action with book publishers to make e-books as available as possible to US citizens. He wants the DPLA to explore alternative approaches to copyright that preserve authors’ and publishers’ chief profit window but also maximizing a work’s circulation, including the “library license” that would allow public, noncommercial entities (like the DPLA) to have digital access to certain works in copyright after five years, or Knowledge Unlatched, a consortium that purchases in-copyright books for open access. The DPLA also wants to work directly with authors to donate their books to the commons.
Claire Kelley is a the former Director of Library and Academic Marketing.