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Martin Garnar's picture

Draft of Copyright: An Interpretation of the Code of Ethics

Greetings!  Below is the text of a proposed interpretation of the ALA Code of Ethics on the topic of copyright.  The Committee on Professional Ethics (COPE) will be bringing this interpretation to Council for consideration at the 2014 Annual Conference in Las Vegas and invites your input.

Background: In preparation for the 9th edition of the ALA Intellectual Freedom Manual, focus groups were asked about topics they'd like to see in the new edition, and copyright was one of the top responses.  Since copyright is mentioned in the ALA Code of Ethics, COPE was asked to draft a statement.  Using the Interpretations of the Library Bill of Rights as a model, this statement is intended to take a core concept from the Code of Ethics (in this case, copyright), explain the underlying principles supporting the core concept, and provide some guidance on how to implement these principles.  To draft the statement, COPE convened a working group comprised of members from COPE, the Office for Information Technology Policy's Advisory Copyright Education Subcommittee, and the Committee on Legislation's Subcommittee on Copyright.  The working group was advised by Carrie Russell, Director of the Program on Public Access to Information.  In addition to an FAQ document that will be completed by the OITP Advisory Copyright Education Subcommittee, the working group drafted the following document. 

COPE is inviting comments on the draft, which is reproduced below in its entirety and is also attached as a Word document.  You may leave comments below, or you can send them to Martin Garnar, chair of COPE, at mgarnar@regis.edu (comments made using Word's reviewing features on a marked-up draft welcomed). Please note that Martin will be traveling from June 8th through June 21st, so any emails received during that period will not be acknowledged until his return.  COPE will also hold an open hearing on the draft interpretation during its first business meeting on Friday, June 27th from 1:30 to 3 p.m. in Room N101 of the Las Vegas Convention Center.

Thanks in advance for your input. 

Copyright: An Interpretation of the Code of Ethics (version 23 May 2014)

The purpose of copyright is to advance knowledge through the dissemination of information and creative works to benefit the public, which is why copyright is central to the mission of libraries. When working effectively, copyright should provide the broadest access to information for the public while balancing the interests of rights holders.  Libraries achieve this when they purchase information resources for their communities, when they curate and preserve the cultural heritage, when they establish services and programs to enhance access to information, and when they simply lend books or other resources.

In Article 1, Section 8 of the U.S. Constitution, “Congress shall have 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.” Thus, Congress creates copyright law to encourage the creation of writings, art, music and other works by providing an economic incentive for authors, innovators, and inventors. In turn, creators make these works available to the public through sales or other means. The economic incentive provided to creators is a limited, statutory monopoly. Only creators can sell or otherwise vend their works. The monopoly, however, has limits—copyright duration, the public domain, limits on what can be protected by copyright, user exceptions like fair use, and many more. Libraries, archives, and non-profit educational institutions also have exceptions to the copyright law that allow libraries to lend works, preserve, and replace works, make copies for library users and so on.  It is these limits that ensure that the monopoly is not absolute, that certain uses by the public are lawful, and that new creative works are encouraged, building on the advancements that have occurred over time.

Article IV of the Code of Ethics states that librarians “respect copyright law and advocate balance between the interests of information users and rights holders.” Therefore, librarians should remain informed about copyright developments, particularly those that can limit or restrict exceptions for users.  Librarians are and should be the copyright consultants for their user community. This requires a solid understanding of the purpose of the law and some basics, and through this understanding, good judgment, and fairness, and exercise exceptions to their full extent, in particular, the fair use exception. The importance of fair use to library services and the public we serve cannot be understated—its flexibility allows for user privileges in unanticipated situations, destined to occur in times of change. [1]  

Moreover, libraries and their parent institutions have a responsibility to maintain policies and procedures that are consistent with current copyright law and institutional mission. More than simply respecting the rights of copyright owners, such policies and procedures should encourage and enable the optimal availability of copyrighted materials for library users through the full employment of the available exceptions within copyright law. Library staff should be regularly trained to consistently recognize and observe the limits of copyright, understand their rights and those of their users, and be ready to educate or properly refer users with questions pertaining to copyright.

Digital technology, networks, and content are ubiquitous.  The public expects to have access content at any time. Libraries are equally demanding in their expectation—they expect to acquire or access content for their users and serve their information needs.  Today’s digital content is made available by rights holders to libraries and the average consumer through licenses agreement—often non-negotiable—rather than the carefully crafted copyright law that Congress provides.  Acquiring or accessing content by license agreement can, and often does, limit user rights realized in the analog world.

Recent amendments to the copyright law have expanded the rights of rights holders with little or no countering benefits in the public interest.  In order to restore balance, librarians need to directly engage in negotiations with rights holders, create and embrace open access, and vehemently advocate on behalf of their users and user rights.  Librarians have a proud history of advocating for the public interest, and ensuring that copyright remains a balance between information users and rights holders is the librarian’s essential task in the digital age. 


[1] For more information about the copyright law, see the forthcoming Copyright FAQs for Libraries prepared by the OITP Advisory Copyright Education Subcommittee.

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Rhonda Marker's picture

I fully advocate for open access to the world's knowledge, and I devote a great deal of my efforts personally and professionally to that end. However, I respectfully disagree with the opening statement of "Copyright: An Interpretation of the Code of Ethics (version 23 May 2014)". As referenced in the second paragraph of the draft, the purpose of copyright is "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." Copyright law gives authors exclusive rights to their writings. By doing so, this line of reasoning goes, they will be encouraged to pursue further developments in science and the arts. The purpose of copyright, I agree, is to "advance knowledge". However, it is through the securing of exclusive author rights (copyright) and not "through the dissemination of information ... to benefit the public". I am uncomfortable with a statement that does not acknowledge the centrality of lawfully granted author rights in copyright law.

I might well argue that extending the "limited times" to which authors are given exclusive rights to their works does not effectively "promote the progress of science and the arts". Many librarians perceive that current copyright law has expanded those "limited times" to an unreasonable extent, and that is addressed in the final paragraph of the draft.

Librarians have worked so long and hard to provide access to information to our users that perhaps it is an unusual position to be in, to also defend the rights of the creators of information, especially when some of those creators appear to limit distribution of their works to an elite group or exact an exorbitant cost for its use. Nevertheless, I propose that the opening lines of the draft must include an acknowledgement of the purpose of copyright: to advance knowledge, and its method: by granting temporary exclusive rights to authors and other creators to their copyrightable works.

Martin Garnar's picture

Rhonda, thanks for your input.  The committee will consider this as we prepare the final statement.

Martin Garnar
Chair, ALA Committee on Professional Ethics
Reference Services Librarian & Professor of Library Science, Regis University

Jacob Nadal's picture

This sentence from Para 3 could use some editing: "This requires a solid understanding of the purpose of the law and some basics, and through this understanding, good judgment, and fairness, and exercise exceptions to their full extent, in particular, the fair use exception."

I think the intent is that a) librarians should have a solid understanding of the purpose of copyright, the explicit legal exceptions that apply to libraries, and b) that librarians will be familiar with the prevailing practices within the profession where the law is not specific, and that those two factors should guide librarians as they attempt a full exercise of fair use. Is this correct?

Martin Garnar's picture

Hi Jacob.  Yes, you've identified the intent of the sentence.  Thanks for asking that question, and we'll work on making that clearer.

Martin Garnar
Chair, ALA Committee on Professional Ethics
Reference Services Librarian & Professor of Library Science, Regis University

Elena Rosenfeld's picture

Do I recall correctly that licensing supersedes copyright as there is no true "final sale?"

If so, I'm wondering if you need to either tweak the next-to-last paragraph on digital content to note that licensing is a separate issue or adjust the final paragraph to make it clear that such licensing situations need to be addressed within copyright to restore balance.

If not...never mind. :)   thanks!

Martin Garnar's picture

Hi Elena!  (she gets an exclamation point because we know each other...)

Yes, licensing does supersede copyright in those situations, so we'll have to make that clearer in the draft.  Thanks for your input!

Martin Garnar
Chair, ALA Committee on Professional Ethics
Reference Services Librarian & Professor of Library Science, Regis University

Daniel Cornwall's picture

On the subject of licensing, while most licensing schemes often take away what few rights users have under copyright, some schemes like Creative Commons and GNU licenses offer end-users more options. I'd like to see some language suggesting that libraries be aware of and promote licenses that encourage reuse and remixing while providing protection for commercial works.

I just noticed that your quote from the Code of Ethics could be incorrect, or ALA has an outdated page. Your statement says:

 

Article IV of the Code of Ethics states that librarians “respect copyright law and advocate balance between the interests of information users and rights holders.”

But ALA's page on the Code of Ethics for the American Library Association at http://www.ala.org/advocacy/proethics/codeofethics/codeethics says:

 

"We respect intellectual property rights and advocate balance between the interests of information users and rights holders."

 

 

Daniel Cornwall

Alaska Chapter Councilor

Member, Depository Library Council

http://librarianfromalaska.wordpress.com

Daniel Cornwall's picture

As someone who has sold the copyright to their work, I'd like to suggest that the sentence:

"Only creators can sell or otherwise vend their works." be changed to "Only copyright holders can sell or otherwise vend their works."

I think this difference is important to make clear to librarians and the public. Not only can creators wind up transferring their copyright, many actual creators NEVER have rights to their own work because it is work for hire.

I think part of why Congress keeps passing ever longer copyright terms is that lobbyists successfully invoke individual creators as beneficiaries of copyright law. For best selling authors, this is possibly true. But for the most part copyrights are held by corporations that did no creative work of their own and keep works from being reprinted long after the commercial market value has been exhausted. 

In our legal system, copyright holder does not equal creator and any of ALA's statements on intellectual property should reflect that. 

 

- Daniel Cornwall, Alaska Chapter Councilor

http://librarianfromalaska.wordpress.com

Daniel Cornwall

Alaska Chapter Councilor

Member, Depository Library Council

http://librarianfromalaska.wordpress.com

Daniel Cornwall's picture

I wonder if we're not setting up a false equivalence in the next to last paragraph:

"The public expects to have access content at any time. Libraries are equally demanding in their expectation-they expect to acquire or access content for their users and serve their information needs. "

The public expanded its expectations when we entered the digital age. Libraries want the same thing we have always had - the ability to purchase an item and to treat it is a single copy- lend it to a patron or use it for interlibrary loan. While more uses would be nice, libraries are actually fairly conservative in their demands - traditional uses of library materials shouldn't be eliminated simply because the format changed. It is rather the publishers who have increased their demands. They want many things that would be ridiculous in a tangible, first sale world. Something like this in more diplomatic terms should be put in the document - that publishers are taking through license that which was never granted to them in copyright. Only libraries have stayed fairly steady in their expectations. 

 

 

Daniel Cornwall

Alaska Chapter Councilor

Member, Depository Library Council

http://librarianfromalaska.wordpress.com

Martin Garnar's picture

Daniel, thanks for all the feedback in your three comments.  We'll be sure to consider these issues as we revise this initial draft.

Martin Garnar
Chair, ALA Committee on Professional Ethics
Reference Services Librarian & Professor of Library Science, Regis University

M. Thomas's picture

You might edit that line to be something more like "Libraries continue to expect ~" or "Libraries demand to be able to continue ~."

However, I think that there shouldn't be an issue-specific paragraph in here at all. It may be a hot topic between libraries and publishers recently, but that's not a good reason for including it in what we expect to be a long-term policy; leave the current issues to the relevant committees to document as necessary.

In the interest of transparency, I'm attaching my suggested edits here as well as mailing them to Martin.

Martin Garnar's picture

Thanks for all of your work on this!

Martin Garnar
Chair, ALA Committee on Professional Ethics
Reference Services Librarian & Professor of Library Science, Regis University