As the Electronic Frontier Foundation points out, these bills, if enacted, threaten censorship of a wide variety of sites that host controversial content or unfiltered public discourse, not just flagrant bootleg sites.   Sites hosting online books, in particular, could be cut off in various ways if they host a book that someone says infringes copyright in some way. (Even the threat of wholesale cutoff could cause them to take the book down, without any sort of judicial hearing.)  Even linking to a site that has content that’s the subject of a complaint could put a site at risk.

Many sites are “going dark” in various ways on the 18th, to raise awareness of these bills and show what it could be like if they became targets of SOPA or PIPA-enabled censorship.  This includes a number of the sites linked to from The Online Books Page.  For example, the Internet Archive, which hosts 2 million volumes, is out of service for 12 hours on the 18th.

The Online Books Page will not go offline, but we will turn many of our pages black for the 18th, as a warning both that some of the links on the site may be out of service, and that the site itself, which links to more than 1.4 million books on thousands of sites around the world, could be at risk if the bills currently under consideration in Congress pass.

My objection to the bills is not an objection to opposing copyright violations.  As the US Constitution recognizes, appropriately bounded copyrights serve a useful purpose in “promoting the progress of science and arts“, and a fair bit of the time I spend on The Online Books Page is devoted towards making sure the online books I curate do in fact comply with applicable copyright law.   Without clear and reasonable boundaries, though, copyright and its enforcement can inhibit rather than promote the progress of knowledge and the arts, by becoming tools of censorship and chilled speech.  I believe the current bills in Congress unfortunately do that.  If you are concerned about them as well, I encourage you to contact members of Congress to make your concerns known.

There’s not so much excitement about Public Domain Day in the US, where no published works are scheduled to enter the public domain for another 7 years, due to a 20-year copyright extension enacted in 1998.  But Americans don’t have to simply sigh and contemplate what might have been if our copyright terms hadn’t been extended.  The new year still provides a number of important opportunities for Americans to improve access to the public domain.

1. Find and free newly public domain unpublished works

Some works are going into the public domain in the US today: works never published prior to 2003 (or copyrighted under US law prior to 1978) by authors who died in 1941– the same authors whose published works go into the public domain in Europe today.

But who would care about such obscure works? one might ask.  Well, if you’re at all interested in understanding the dense, allusion-laden fiction of Joyce, or the psychology of Woolf, or the jurisprudential thinking of Louis Brandeis, or the inner lives of any of the rest of the “class of 1941″, having the right to freely access, publish, and build on their unpublished works can be crucial.

Up until now, for instance, scholars studying James Joyce have often been frustrated by sharp restrictions and legal threats made by the administrator of Joyce’s literary estate.  In 2008, Rebecca Ganz characterized the administrator thus: “[His] primary purpose is to quell any scholarship that he finds distasteful or an invasion of his family’s privacy. He has a history of harassing authors and artists until they buckle under the strain of trying to obtain legal rights to quote from the late author’s writings.”  Scholars wishing to invoke Joyce’s unpublished works in their work have either had to undertake multi-year legal battles, or cut back on the lines of inquiry they might otherwise pursue.

American libraries and archives have many illuminating papers by authors who died in 1941– even non-US authors like Joyce and Woolf.  US digitizers, librarians, and archivists can open up and publicize these works.   In some cases, we’re uniquely positioned to do so, since their unpublished works may still be under copyright in some other countries.

2. Increase worldwide availability of public domain works

Many of the millions of digitized books on the Internet are hosted in the US, in large-scale repositories like Google Books, HathiTrust, and the Internet Archive.  Many of these services give limited access to non-US readers or materials.  Google and HathiTrust, for instance, limit non-US access by default to books published as long as 140 years ago, to avoid falling afoul of “life+70 years” copyright terms abroad.  JSTOR likewise limits access to non-US journal volumes published in 1870 or later.

With another year’s worth of copyrights expiring in “life+70 years” countries, it should be safe for these US-based services to also open up worldwide access to another year’s worth of works, further freeing up the public domain.  HathiTrust is also willing to manually review copyrights on specific books to open up access.  If you come across any books in HathiTrust solely by authors who died in 1941 (or before) that are currently labeled only as “public domain in the United States”, you can request that they review it for opening up access worldwide.  Just use the “Feedback” button at the bottom of the book’s HathiTrust page, or the suggestion form on my Online Books Page; and make sure you ask specifically for non-US access.

3. Restore access to obscure copyrighted works from 1936 (and earlier)

After libraries and archives expressed concerns about the fate of obscure works under longer copyright terms, Congress included a special exemption in their 1998 copyright tem extension.  The exemption, codified as section 108(h) of the copyright law, states that “during the last 20 years of any term of copyright of a published work, a library or archives, including a nonprofit educational institution that functions as such, may reproduce, distribute, display, or perform in facsimile or digital form a copy or phonorecord of such work, or portions thereof, for purposes of preservation, scholarship, or research”, under certain conditions.  In particular, if the institution finds, after a reasonable investigation, that such a work is not “subject to normal commercial exploitation” (such as by being in print) and cannot “be obtained at a reasonable price”, and no rightsholder has filed a claim otherwise, the work qualifies for this special exemption.  As of this year’s Public Domain Day, qualifying publications from 1936 join what is now 14 years of works in this category.

So far, I have found very little digitized content online where this exemption is explicitly invoked.  (There are advantages to explicitly doing so, both because it helps clarify the right to use the material, and helps prevent inadvertent unauthorized propagation of the works, such as the commercial reprints of digitized books that are now common on many large bookselling sites.)  Yet many of the works in HathiTrust’s (currently suspended) orphan works initiative, and in the Internet Archive’s lending library, and more besides, could well qualify for this treatment– and unlike orphan works, where legislation has yet to be passed, the exemption for these materials is already explicitly authorized by statute.

Providing online access for these works is not without controversy.  A 2002 article by lawyer Mary Minow details some of the potential possibilities and risks.   While she concludes that libraries can put such works on the Web, the recent Author’s Guild complaint in its lawsuit against HathiTrust includes some push-back against this idea. But as the public domain in the US recedes further into history, and digital library projects increasingly look for ways to make our cultural heritage available online, American libraries would do well to proactively establish and exercise these rights for older works now languishing in obscurity.

4. Strengthen and sustain coalitions for reasonable copyright limits

The curtailment of the public domain is just one aspect of the overreach of copyright law in the US and elsewhere.  Right now, Congress is considering two bills, the Stop Online Piracy Act (SOPA) and the PROTECT IP Act (PIPA), whose enforcement provisions threaten to disrupt the core structures of the Internet and enable far-reaching censorship, in the name of stopping piracy.  Supporters of these bills hoped to have them passed by Christmas, but opposition from both “left” and “right” sides of the political spectrum has slowed the process down, caused some companies to withdraw support, and led to the proposal of less harmful alternatives for fighting piracy.

It’s still quite possible that SOPA and PIPA will pass, though.   Public Domain Day provides an opportunity for Americans to reflect on some of the good reasons for limiting the power and scope of copyright enforcement, and to redouble efforts to keep those limits reasonable.  Moreover, a coalition that can stop SOPA and PIPA can also work to prevent further extensions of copyright terms.  This can ensure that Americans will have more to celebrate in Public Domain Days to come– especially starting in 2019, when the remaining 1923 copyrights should finally expire in the US.

5. Give copyrights of your own to the public domain

Of course, those wishing to maximize public access and use of their works don’t have to wait for their copyrights to expire on their own.  They can dedicate them to the public domain any time they want.  Public Domain Day is a particularly auspicious time to make such gifts, no matter what country you’re in.  And with tools like the CC0 declaration, it’s easier than ever to do so.

A few years ago, I started an annual personal tradition of reviewing copyrights to works I’d created more than 14 years ago (the original initial term of copyright enacted by the founders of the US, and also approximately the ideal copyright term given in a recent economic analysis) and dedicating works to the public domain that I didn’t feel needed further copyright.  Accordingly, today I dedicate all the work of my creation that I published in 1997, and for which I still control rights, to the public domain.  For me, this consists primarily of websites like The Online Books Page as of that year, and other online writings.  But others have dedicated more high-profile material to the public domain after the same term.   And I’d be very happy to hear from others who are making similar dedications today (whether or not it’s after 14 years).

So, happy Public Domain Day to everyone in the US and elsewhere!  We all have things to celebrate, and things we can do, in the name of the public domain.

The book had begun its gestation at least a year before. She had been teaching math in Massachusetts, and was involved with the Madison Project, one of the initiatives that arose from the “new math” movement of the 1960s.  What excited her, and what I caught from her not long after I was born, was the sense of discovery and play that was encouraged in the Madison teaching style.  The primary focus wasn’t so much on imparting and drilling facts and rules, or on mundane applications, but on finding patterns, solving puzzles, and figuring out the secrets of numbers and geometry and the other mathematical constructs that underlie our world. Some project participants planned a series of books that would help bring out this sense of discovery and exploration in math classes.

Two small children in the house may have delayed my mother’s ambitions, but we didn’t stop her.  When I was in kindergarten, the piles of papers in my parents’ bedroom went away, and my mother proudly showed me her new book.  The book, Discoveries in Essential Mathematics, was co-written with Ramon Steinen, and published by Charles E. Merrill. Though the textbook was written for middle schoolers, I remember reading through the book after my mother showed it to me, solving the simpler problems, and smiling when I saw my name or my sister’s in an example.

She got small royalty checks for a few years, but the book was out of print by the late 1970s, never reaching a second edition.  We kept some copies in our basement, but I didn’t know of any library that held it.  When I visited the Library of Congress as a middle schooler, wrongly convinced that they had every book ever published, I remember my disappointment when I couldn’t find Mom’s book in their card catalog.

My mother eventually retired from teaching, and the enthusiasm and talent I’d gotten from Mom for math shifted into computing, and then into digital libraries.  And when my kids reached school age, I decided to try putting her book online.  In an era of large classes, detailed state standards, and high-stakes standardized tests, it might not be a viable standard textbook any more, but I think it’s still great for curious kids who show an interest in math.

Mom thought that was a great idea.  But she didn’t know if she could grant permission on her own.  Although long out of print, the book’s copyright had automatically renewed in 2000 under US copyright law, and she wasn’t sure if she had to get the consent of her publisher or co-author before she could give me the go-ahead. She didn’t know how to reach her co-author, and her old imprint was long gone.  Even its acquirer had itself been acquired by a large conglomerate some time ago.  So I let the idea drop, thinking I’d come back to it later when I had a little time to research the copyright.

But not long after, she started a long slide into dementia, and was soon in no position to give permission to anyone.  If her book had been practically an “orphan work” before, due to uncertainty over rights, it was even more so now.  There was no trouble locating the author; but no way of getting valid permission from someone definitely known to hold the rights.

Mom died this past winter, four years after my Dad had reluctantly moved her into the nursing home for good, and four weeks after he’d made his usual daily visit, gone back home, and had a fatal heart attack.  After we paid the last of the bills, and threw out the contents of the basement (where a burst pipe ruined all the books, papers, and other things they kept down there), what remained of what they had would now go to me and my siblings.

I still had a copy at home of the teacher’s edition of Mom’s book that she had once given to Grandma.  And between my mother’s funeral and the burst pipe, I’d taken a student edition out of their basement for my kids to read.  But any faint hope of finding publishing contracts or rights assignment documents was obliterated after the pipe burst.  The basic questions were: had Mom signed her rights to the book away, as many academic authors do? If so, had she gotten them back at some point?  Or had she never had the rights in the first place, as sometimes happens with textbook authors under “work for hire” contracts?

The copyright page of the book, and the record in the 1972 Catalog of Copyright Entries, show the publisher as the copyright claimant, so I couldn’t assume she had the rights.   But I also doubted whether I could get a clear answer, or reasonable licensing terms, from the company that had eventually acquired the assets of Mom’s original publisher.

I eventually found what I needed to know on a trip to Washington, DC.  While attending a meeting on digital format registries, I realized that I was in the same building as the Copyright Office.   So after the meeting, I got a reader’s card, went upstairs, and consulted the librarians there.  We confirmed that, under the automatic renewal laws of the time, the copyright to Mom’s book would have reverted in 2000 to whoever had been declared the “author” in the book in the original registration record.   Moreover, in the absence of any contrary arrangement, any co-owner of a copyright can authorize publication, as long as they split any proceeds with the other copyright owners.

Since I was planning just to put the book online for free, the only question remaining was: who was listed as the author on the original registration: the publisher who claimed the copyright, or my mother and Dr. Steinen?  It’s not clear from the Catalog of Copyright Entries, but the original registration certificate would state it.  And the one copy known to exist of that certificate was in the archives of the Copyright Office where I was sitting.

Twenty minutes later, I had the certificate in front of me.  The name on the “claimant” line was indeed the publisher’s, but the names on the “author” line were Steinen and Ockerbloom.  My mother’s orphan was mine to claim.

There are a lot more books out there like hers.  Since I added records for Hathi Trust‘s public domain books to The Online Books Page, I’ve gotten requests to curate hundreds of out of print, largely forgotten books that are still meaningful to readers online.  Many of the people who opt to leave contact information  live in places where  books tend to be hard to get or pay for. Many others, judging from their names, seem to be related to the authors of the books they suggest. These readers have found the books after Hathi, or Google, or the Internet Archive, has resurfaced them online, and the readers want these books to live on.  If there were an easy, inexpensive, uncontroversially legal way to also bring back books that are still in copyright, but no longer commercially exploited, I’m sure I could fulfill a lot of requests for those books too.

For now, though, I’ll bring back the one orphan book I’ve been given. And I thank my mother for writing it, and the other women and men who have poured so much of their energy and teaching into their books, and the librarians of all kinds who help ensure those books stay accessible to readers who value them.  I’ll try my best to keep your legacies alive.

Many librarians would react to this request with alarm.  The code of ethics adopted by the American Library Association states “We protect each library user’s right to privacy and confidentiality with respect to information sought or received and resources consulted, borrowed, acquired or transmitted.”  Librarians will typically refuse to give such information without a carefully-verified search warrant, and many are also campaigning against the particularly intrusive search demands authorized by the PATRIOT Act.

Yet it’s possible that the library in this scenario is routinely giving out that kind of information, without the knowledge or consent of librarians or patrons, via its web site.  These days, many sites, including those of libraries, invoke a variety of third-party services to construct their web pages.  For instance, some library sites use Google services to analyze site usage trends or to display book covers.  Those third party services often know what web page has been visited when they’re invoked, either through an identifier in the HTML or Javascript code used to invoke the service, or simply through the Referer information passed from the user’s web browser.

Patron privacy is particularly at risk when the third party also knows the identity of users visiting sensitive pages (like pages disclosing books they’re interested in).  The social networking sites that many library patrons use, for instance, can often track where their users go on the Web, even after they’ve left the social sites themselves.

For instance, if you go to the website of the Farmington Public Library (a library I used a lot when growing up in Connecticut), and search through their catalog, you may see Facebook “Like” buttons on the results.  On this page, for example, you may see that four people (possibly more by the time you read this) have told Facebook they Liked the book Indistinguishable from Magic.  Now, you can probably easily guess that if you click the Like button, and have a Facebook account, then Facebook will know that you liked the book too.  No big surprise there.

But what you can’t easily tell is that  Facebook is informed you’ve looked at this book page, even if you don’t click on anything.  If you’re a Facebook user and haven’t logged out– and for a while recently, even if you have logged out– Facebook knows your identity.  And if Facebook knows who you are and what you’re looking at, it has the power to pass along this information. It might do it through a “frictionless sharing” app you decided to try.  Or it might quietly provide it to organizations that it can sell your data to as permitted in its frequently changing data use policies.  (Which for a while even included tracking non-members.)

For some users, it might not be a big deal if it’s generally known what books they’re looking at online. But for others it definitely is a big deal, at least some of the time.  The problem with third-party inclusions like the Facebook “Like” button in catalogs is that library patrons may be denied the opportunity to give informed consent to sharing their browsing with others.  Libraries committed to protecting their patron’s privacy as part of their freedom to read need to carefully consider what third party services they invite to “tag along” when patrons browse their sites.

This isn’t just a Facebook issue.  Similar issues come up with other third-party services that also track individuals, as for instance Google does.  Libraries also have good reasons to partner with third party sites for various purposes.  For some of these purposes, like ebook provision, privacy concerns are fairly well understood and carefully considered by most libraries.  But librarians might not keep as close track of the development of their own web sites, where privacy leaks can spring up unnoticed.

So if any of your web sites (especially your online catalogs or other discovery and delivery services) use third party web services, consider carefully where and how they’re being invoked.  For each third party, you should ask what information they can get from users browsing your web site, what other information they have from other sources (like the “real names” and exact birthdates that sites like Facebook and Google+ demand), and what real guarantees, if any, they make about the privacy of the information.  If you can’t easily get satisfactory answers to these questions, then reconsider your use of these services.

Lots of early  journal content now openly readable online

The time was ripe to open access at JSTOR.  (And not just because of growing discontent over limited access to public domain and publicly funded research.) Thanks to mass-digitization initiatives and other projects, much of the early journal content found in JSTOR is now also available from other sources.  For instance, after Gregory Maxwell posted a torrent of pre-1923 JSTOR volumes of the Philosophical Transactions of the Royal Society of London, I surveyed various free digital text sites and found nearly all the same volumes, and more, available for free from Hathi Trust, Google, the Internet Archive, Gallica, PubMed Central, and the Royal Society itself.  The content needed to be organized to be usefully browsable across sites, but that required a bit of basic librarianship and a bit of time.

Philosophical Transactions is not an anomaly.  After collating volumes of this journal, I looked at the first ten journals that signed on to JSTOR back in the mid-1990s.  (The list can be found below.)  I again found that nearly all of pre-1923 content of these journals was also available from various free online sites.  Now, when you look them up on The Online Books Page, you’ll find links to both the JSTOR copies and the copies at other sites.

Comparing the sites that provide this content is enlightening.  In general, the JSTOR copies are better presented,  with article-level tables of contents, cross-volume searching, article downloads, and consistently high scan quality.  But the copies at other sites are generally usable as well, and sometimes include interesting non-editorial material, such as advertisements, that might not be present in JSTOR’s archive.  By opening up access to its early content now, though, JSTOR will remain the preferred access point to this early content for most researchers — and that, hopefully, will help attract and sustain paid support for the larger body of scholarly content that JSTOR provides and preserves for its subscribers.

And there’s a lot more in the public domain

JSTOR currently only provides open access for volumes up to 1922 (or up to 1869, if you’re not in the US).   But there’s lots more public domain journal content that can be made available.  Looking again at the initial ten JSTOR journals, I found that all of them have additional public domain content that is currently not available as open access on JSTOR, or as of yet on other sites.  That’s because journals published in the US before 1964 had to renew their copyrights after 28 years or enter the public domain.  But most scholarly journals, including these 10, did not renew the copyrights to all their issues.  Here’s a list of the 10 journals, and their first issue copyright renewals:

1. The American Historical Review – began 1895; issues first renewed in 1931
2. Econometrica - began 1933; issues first renewed in 1942
3. The American Economic Review – began 1911; issues not renewed before 1964 (when renewal became automatic)
4. Journal of Political Economy – began 1892; issues first renewed in 1953
5. Journal of Modern History - began 1929, issues first renewed in 1953
6. The William and Mary Quarterly – began 1892; issues first renewed in 1946
7. The Quarterly Journal of Economics – began 1886; issues first renewed in 1934
8. The Mississippi Valley Historical Review (now the Journal of American History) – began 1914; issues first renewed in 1939
9. Speculum – began 1926; issues first renewed in 1934
10. Review of Economic Statistics (now the Review of Economics and Statistics) – began 1919; issues first renewed in 1935

This list reflects more proactive renewal policies than were typical for scholarly journals. A few years ago, I did a survey of JSTOR journals (summarized in this presentation) that were publishing between 1923 and 1950, and found that only 49 out of 298, or about 1/6, renewed any of their issue copyrights for that time period.  (JSTOR has since added more journals covering this time period, so the numbers will be different now, but I suspect the renewal rate won’t be any higher now than it was then.)

Currently JSTOR has no plans to open up access to post-1922 journal volumes.  But many of those volumes have been digitized, and are in Google’s or Hathi Trust’s collections; or they could be digitized by contributors to the Internet Archive or similar text archives.

If someone does want to open up these volumes, they should re-check their copyright status.   In particular, I have not yet checked the copyright status of individual articles in these journals, which can in theory be renewed separately.  In practice, I’ve found this rarely done for scholarly articles, but not completely unknown.  It might be feasible for me to do a “first article renewal” inventory for journals, like I’ve done for first issue renewal, which could speed up clearances.

Opportunities for open librarianship

JSTOR’s recent open access release of early journals, then, is just the beginning of the open access historic journal content that can be available online.  JSTOR provides a valuable service to libraries in providing and preserving comprehensive digital back runs of major scholarly journals, both public domain and copyrighted.  But while our libraries pay for that service, let’s also remember our mission to provide access to knowledge for all whenever possible.  JSTOR’s contribution in opening  its pre-1923 journal volumes is a much-appreciated contribution to a high-quality open record of early scholarship.  We can build on that further, with copyright research, digitization, and some basic public librarianship.  (I’ve discussed the basics of journal liberation in previous posts.)

For my part, I plan to start by gradually incorporating the open access JSTOR offerings into the serial listings of the Online Books Page, as time permits.  I can also gather further copyright information on these and other journals as I bring them in.  I’m also happy to hear about more journals that are or can go online (whether they’re JSTOR journals or not); you can submit them via my suggestion interface.

How about you?  What would you like to see from the early scholarly record, and what can you do to help open it up?

At a certain point after an enthusiastic band of performers says “Let’s put on a show!”, though, someone has to decide what their show’s going to be about, and start focusing effort there.  So far, the DPLA seems to be taking an opportunistic approach.  Instead of promulgating a particular blueprint for what they’ll do, they’re asking the community for suggestions, in a “beta sprint” that ends today.   Whether this results in a clear distinctive direction for the project, or a mishmash of ideas from other digitization, aggregation, preservation, and public service initiatives, remains to be seen.

Just about every digital project I’ve seen is opportunistic to some extent.   In particular, most of the big ones are opportunistic when it comes to collection development.  We go after the books, documents, and other knowledge resources that are close to hand in our physical collections, or that we find people putting on the open web, or that our users suggest, or volunteer to provide on their own.

There are a number of good reasons for this sort of opportunism.  It lets us reuse work that we don’t have to redo ourselves.  It can inform us of audience interests and needs (at least as far as the interests of the producers we find align with the interests of the consumers we serve).  And it’s cheap, and that’s nothing to sneer at when budgets are tight.

But the public libraries that my family prefers to use don’t, on the whole, have opportunistically built collections.  Rather, they have collections shaped primarily by the needs of their patrons, and not primarily by the types of materials they can easily acquire.   The “opportunistic” community and school library collections I’ve seen tend to be the underfunded ones, where books in which we have yet to land on the Moon, the Soviet Union is still around, or Alaska is not yet a state may be more visible than books that reflect current knowledge or world events.  The better libraries may still have older titles in their research stacks, but they lead with books that have current relevance to their community, and they go out of their way to acquire reliable, readable resources for whatever information needs their users have.  In other words, their collections and services are driven by  demand, not supply.

In the digital realm, we have yet to see a library that freely provides such a digital collection at large scale for American public library users.   Which is not to say we don’t have large digital book collections– the one I maintain, for instance, has over a million freely readable titles, and Google Books and lots of other smaller digital projects have millions more.  But they function more as research or special-purpose collections than as collections for general public reference, education, or enjoyment.

The big reason for this, of course, is copyright.  In the US, anyone can freely digitize books and other resources published before 1923, but providing anything published after that requires copyright research and, usually, licensing, that tends to be both complex and expensive.  So the tendency of a lot of digital library projects is to focus on the older, obviously free material, and have little current material.  But a generally useful digital public library needs to be different.

And it can be, with the right motivation, strategy, and support.  The key insight is that while a strong digital public library needs to have high-quality, current knowledge resources, it doesn’t need to have all such resources, or even the most popular or commercially successful ones.  It just needs to acquire and maintain a few high-quality resources for each of the significant needs and aptitudes of its audience. Mind you, that’s still a lot of ground to cover, especially when you consider all the ages, education levels, languages, physical and mental abilities, vocational needs, interests, and demographic backgrounds that even a midsized town’s public library serves.  But it’s still a substantially smaller problem, and involves a smaller cost, than the enticing but elusive idea of providing instant free online access to everything for everyone.

There are various ways public digital libraries could acquire suitable materials proactively.  The America.gov books collection provides one interesting example.  The US State Department wanted to create a library of easy-to-read books on civics and American culture and history for an international audience.  Some of these books were created in-house by government staff.  Others were commissioned to outside authors.  Still others were adapted from previously published works, for which the State Department acquired rights.

A public digital library could similarly create, commission, solicit, or acquire rights to books that meet unfilled information needs of its patrons.  Ideally it would aim to acquire rights not just to distribute a work as-is, but also to adapt and remix into new works, as many Creative Commons licenses allow.  This can potentially greatly increase the impact of any given work.  For instance, a compellingly written,  beautifully illustrated book on dinosaurs might be originally written for 9-12 year old English speakers, and be noticeably obsolete due to new discoveries after 5 or 10 years.  But if a library’s community has reuse and adaptation rights, library members can translate, adapt, and update the book, so it becomes useful to a larger audience over a longer period of time.

This sort of collection building can potentially be expensive; indeed, it’s sobering that America.gov has now ceased being updated, due to budget cuts.  But there’s a lot that can be produced relatively inexpensively.  Khan Academy, for example, contains thousands of short, simple educational videos, exercises, and assessments created largely by one person, with the eventual goal of systematically covering the entire standard K-12 curriculum.  While I think a good educational library will require the involvement of many more people, the Khan example shows how much one person can get accomplished with a small budget, and projects like Wikipedia show that there’s plenty of cognitive surplus to go around, that a public library effort might usefully tap into.

Moreover, the markets for rights to previously authored content can potentially be made much more efficient than they are now.  Most books, for instance, go out of print relatively quickly, with little or no commercial exploitation thereafter.  And as others have noted, just trying to get permission to use  a work digitally, even apart from any royalties, can be very expensive and time-consuming.  But new initiatives like Gluejar aim to make it easier to match up people who would be happy to share their book rights with people who want to reuse them. Authors can collect a small fee (which could easily be higher than the residual royalties on an out-of-print book); readers get to share and adapt books that are useful to them.   And that can potentially be much cheaper than acquiring the rights to a new work, or creating one from scratch.

As I’ve described above, then, a digital public library could proactively build an accessible collection of high-quality, up to date online books and other knowledge resources, by finding, soliciting, acquiring, creating, and adapting works in response to the information needs of its users.  It would build up its collection proactively and systematically, while still being opportunistic enough to spot and pursue fruitful new collection possibilities.  Such a digital library could be a very useful supplement to local public libraries, would be open any time anywhere online, and could provide more resources and accessibility options than a local public library could provide on its own.  It would require a lot of people working together to make it work, including bibliographers, public service liaisons, authors, technical developers, and volunteers, both inside and outside existing libraries.  And it would require ongoing support, like other public libraries do, though a library that successfully serves a wide audience could also potentially tap into a wide base of funds and in-kind contributions.

Whether or not the DPLA plans to do it, I think a large-scale digital free public library with a proactively-built, high-quality, broad-audience general collection is something that a civilized society can and should build.  I’d be interested in hearing if others feel the same, or have suggestions, critiques, or alternatives to offer.

There’s another very important driver not explicitly mentioned in the announcement: the rise of open library data.  More and more bibliographic and other library-related data is now freely available and reusable online, and it enables all kinds of improvements in resource discovery.  I’ve previously discussed how open data for Library of Congress Subject Headings and Hathi Trust online books allows me to manage a catalog of over a million books, create rich subject browsing interfaces, and improve the quality of library catalogs at Penn.  OCLC has also compiled data on millions of authors in VIAF, and now makes it available as open data.  I recently downloaded their data set, and hope to get at least as much benefit out of is as I have with subject data to date.  (I hope to report on early experiments before long.)

And there’s more big news from OCLC.  At last month’s Global Council meeting, Karen Calhoun gave a presentation saying they were considering releasing letting members release WorldCat data under an open license.  I’m very excited to see this development; as I said a couple of years ago (in a panel discussion that also featured Karen Calhoun)  it would make a huge trove of the library community’s bibliographic intelligence available to exploit and extend in all kinds of ways that could make it easier for library patrons to discover information resources.  This is no small step for OCLC– at the time of our panel, OCLC was concerned that opening access to WorldCat data might threaten the sustainability of the WorldCat cooperative.  If they’re seriously considering opening their data now, I suspect that a good number of WorldCat members have indicated that it’s an important and worthwhile thing to do, and that the benefits outweigh the risks.

If you also see potential in open library data, now is an excellent time to join in the discussions that the Library of Congress and OCLC are inviting.  The more these and other leading organizations in the library community see how open data can advance the goals of the community, and how open data initiatives can get the support needed to be sustainable, the richer the knowledge base that our evolving bibliographic framework will support.

I don’t yet know where and how the LC and OCLC conversations will be taking place.  But I’d love to hear readers’ thoughts and pointers about using and supporting open bibliographic data in the comments here.

Updated May 27 to clarify:  I’ve heard from Roy Tennant that the OCLC proposal under consideration refers to WorldCat members releasing “their catalog data containing WorldCat records”, not OCLC itself releasing data (as my post originally stated).  This is still potentially a big deal, even if it doesn’t mean opening up all of WorldCat.  I’ve updated the post, marking edits with strikethrough and bold, and will talk about this more in the comment thread.

Don’t count on a settlement to produce a comprehensive library

When the suit is finally resolved, it will not enable the comprehensive retrospective digital library I had been hoping for.  That, Chin clearly indicated, was an over-reach.  The  proposed settlement would have allowed Google to sell access to most pre-2009 books published in the English-speaking world whose rightsholders had not opted out.   But, as Chin wrote, “the case was about the use of an indexing and searching tool, not the sale of complete copyrighted works.”  The changes in the American copyright regime that the proposed settlement entailed, he wrote, were too sweeping for a court to approve.

Unless Congress makes changes in copyright law, then, a rightsholder has to opt in for a copyrighted book to be made readable on Google (or on another book site).  Chin’s opinion ends with a strong recommendation for the parties to craft a settlement that would largely be based on “opt-in”.  Of course, an “opt in” requirement necessarily excludes orphan works, where one cannot find a rightsholder to opt in.  And as John Wilkin recently pointed out, it’s likely that a lot of the books held by research libraries are orphan works.

Don’t count on authors to step up spontaneously

Chin expects that many authors will naturally want to opt in to make their works widely available, perhaps even without payment.  “Academic authors, almost by definition, are committed to maximizing access to knowledge,” he writes.  Indeed, one of the reasons he gives for rejecting the settlement is the argument, advanced by Pamela Samuelson and some other objectors, that the interests of academic and other non-commercially motivated authors are different from those of the commercial organizations that largely drove the settlement negotiations.

I think that Chin is right that many authors, particularly academics, care more about having their work appreciated by readers than about making money off of it.  And even those who want to maximize their earnings on new releases may prefer freely sharing their out of print books to keeping them locked away, or making a pittance on paywall-mediated access.  But that doesn’t necessarily mean that we’ll see all, or even most, of these works “opted in” to a universally accessible library.  We’ve had plenty of experience with institutional repositories showing us that even when authors are fine in principle with making their work freely available, most will not go out of their way to put their work in open-access repositories, unless there are strong forces mandating or proactively encouraging it.

Don’t count on Congress to solve the problem

The closest analogue to a “mandate” for making older books generally available would be orphan works legislation.    If well crafted, such a law could make a lot of books available to the public that now have no claimants, revenue, or current audience, and I hope that a coalition can come together to get a good law passed. But an orphan works law could take years to adopt (indeed, it’s already been debated for years). There’s no guarantee on how useful or fair the law that eventually gets passed would be, after all the committees and interest groups are done with it.  And even the best law would not cover many books that could go into a universal digital library.

Libraries have what it takes, if they’re proactive

On the other hand, we have an unprecedented opportunity right now to proactively encourage authors (academic or otherwise) to make their works freely available online.  As Google and various other projects continue to scan books from library collections, we now have millions of these authors’ books deposited in “dark” digital archives.  All an interested author has to do is say the word, and the dark  copy can be lit up for open access.  And libraries are uniquely positioned to find and encourage the authors in their communities to do this.

It’s now pretty easy to do, in many cases.  Hathi Trust, a coalition of a growing number of research institutions, currently has over 8 million volumes digitized from member libraries.  Most of the books are currently inaccessible due to copyright.  But they’ve published a permission agreement form that an author or other rightsholder can fill out and send in if they want to make their book freely readable online.  The form could be made a bit clearer and more visible, but it’s workable as it is.  As editor of The Online Books Page, I not infrequently hear from people who want to share their out of print books, or those of their ancestors, with the world.  Previously, I had to worry about how the books would get online.  Now I usually can just verify it’s in Hathi’s collection, and then refer them to the form.

Google Books also lets authors grant access rights through their partner program.  Joining the program is more complicated than sending in the Hathi form, and it’s more oriented towards selling books than sharing them.  But Google Books partners can declare their books freely readable in full if they wish, and can give them Creative Commons licenses (as they can with Hathi).  Google has even more digitized books in its archives than Hathi does.

So, all those who would love to see a wide-ranging (if not entirely comprehensive), globally accessible digital library now have a real opportunity to make it happen.  We don’t have to wait for Congress to act, or  some new utopian digital library to arise.  Thanks to mass digitization, library coalitions like Hathi’s, and the development of simplified, streamlined rights and permissions processes, it’s easier than ever for interested authors (and heirs, and publishers) to make their work freely available online.  If those us involved in libraries, scholarship, and the open access movement work to open up our own books, and those of our colleagues, we can light up access to the large, universal digital library that’s now waiting for us online.

Or, to be more precise, they’ve returned to the public domain there.  Although the reigning international copyright standard, the Berne Convention, requires copyrights to run at least for the lifetime of the author plus 50 years, the European Union in 1993 mandated a retroactive copyright extension to life plus 70 years, to match the longest term in any of its member countries at the time.  Twenty years of the public domain were buried by this extension.  For at least the next 3 years, all we’ll be seeing in Europe is the old public domain re-emerging.

The public domain has seen losses and freezes in much of the rest of the world since.  In 1998, after years of lobbying by the entertainment industry, the US enacted its own 20-year copyright extension.  Thankfully, this extension only froze the public domain instead of rolling it back, but we will wait another 8 years before more publications enter the public domain here due to age.  The 1998 extension was just the latest of a series of copyright extensions in the United States.  In 1954, US copyrights ran a maximum of 56 years, so all of the works published before 1955 would now in the public domain here were it not for later extensions.   (Instead, we still have copyrights in force as far back as 1923.)

There’s no clear end in sight to further extensions.  Since 1998 I’ve steadily been seeing country after country extend its terms, often pushed by trade negotiations with Europe or the United States.  “Life+50″ may still be the global standard, but bi-lateral and region-specific trade agreements have pushed terms up to “life+70″ in many countries around the world.  Some countries have gone even longer — Mexico, for instance, is now “life+100″– making convenient targets for further rounds of copyright extensions in the name of international “harmony”.

There are some bright spots, though.  Many countries continue to hold the line at life+50 years, including Canada (despite years of pressure from its southern neighbor).  As of today, residents of “life+50″ countries are now free to republish, adapt, reuse, and build upon works by authors who died in 1960 or before, in whatever way they see fit.   I hope to show some of what this means as I introduce listings from projects like Gutenberg Canada to The Online Books Page this year.

In the US, where many copyrights prior to 1964 didn’t run for their full length unless renewed, a number of digitization projects (most notably Hathi Trust) have been finding post-1922 works with unrenewed copyrights, and making them freely readable online.  These works tend not to be the best-sellers or popular backlist titles, but collectively they embody much of the knowledge and culture of the mid-20th century.  I’ve also been very happy to list many of these works over the past year.

At the same time, there’s been a growing awareness that copyright need not be “one size fits all”, particularly for works that no longer have much commercial value.  This insight helped lead various authors’ and publishers’ groups to negotiate a blanket license to Google to make out of print works generally available online.  The license, part of the Google Books Settlement, is not without its controversy or problems, and might or might not eventually get court approval.  But it suggests political feasibility for similar efforts to free older, more obscure cultural and scholarly works now languishing under exclusive copyright control.

We’ve even seen at least one entertainment industry spokesman speculate out loud that re-introducing simple formalities to maintain copyright might not be such a bad idea.  Such formalities are forbidden by the Berne Convention, so they could not be introduced across the board without re-negotiating that treaty.  That would be no easy task.

But the recent round of copyright extensions may at least provide an opening for international experimentation.  Now that copyright terms go past the Berne minimum in many countries, the post-Berne portion of the copyright term could potentially be made subject to requirements that Berne doesn’t allow (such as the renewal of copyrights in some suitable international registry system).  That could not only free many older “orphan works” for reuse, but if it works well it could also lead to negotiating a farther-reaching international registry system. Such a system could make it easier both to contact copyright holders for permissions, and to free works for the public domain whose owners no longer cared (or who never did want) to maintain exclusive rights.

I’ve been practicing a self-imposed system of “formalities” myself over the last few years.  On every Public Domain Day, I’ve been freeing published works of mine more than 14 years old, except for works where I explicitly opt to reserve copyright.  (Copyrights in the US originally ran for 14 years unless renewed for another 14.)  So: All works of mine published in 1996 for which I control the copyright are hereby released to the public domain.  (Legally, you can consider them all to be declared CC0.)  Much of the publication I did that year online can now be found through sites like the Internet Archive, which started crawling my web sites in late 1996.

I’d be very happy to hear about other gifts people are making to the public domain, as well as successes in bringing more of the public domain to light online, and in expanding the scope of the public domain as a whole.  Happy Public Domain Day to all!

Had I been counting volumes, like many other projects do, I could have officially crossed that threshold a while ago.  But I’ve been trying to keep the total down by counting not volumes, but works.  (Or more precisely, editions.)  As I count them, a two-volume novel, a 22-volume encyclopedia, and a 100-volume journal run each count as one “book”.

This kind of count reflects my desire to build a catalog where people can easily find what they need.  Almost no one looking for a three-decker Victorian novel will be satisfied with finding just Volume II, so I try to make sure all the volumes can be found together whenever possible.  For similar reasons, I’ve also been working on helping people find suitable editions of widely published works, and supporting smarter subject browsing.  It’s one thing to have access to a million books, as now can be found at my site and a number of others.  It’s another, more useful thing to easily find the most useful book for your needs among those millions of titles.

Often what one reader will find most useful is a book that someone else has found useful as well.  So I’m very grateful to the readers who have been submitting suggestions to the site, both for books to curate from the extended shelves, and for a variety of titles from smaller, more out-of-the way collections, or on personal or organizational websites.

We’ll be taking a short break over the holidays from listing new titles in significant number, but I look forward to resuming the new book listings in 2011.   I’m also looking forward to offering new, improved ways of locating books in even larger collections as the year progresses.

Merry Christmas to all who celebrate it, and warm wishes for happiness and interesting reading in the new year!