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When Owning Isn't Owning

Submitted by Jenny Levine on February 28, 2006 - 5:28pm

At the Ontario Library Association Superconference earlier this month, I argued that library schools need to offer a course in copyright, licensing agreements for electronic products, and digital rights management (DRM), because they all affect the future of how libraries will interact with our users as entertainment and information becomes increasingly digital. It's unfortunate that at a time when the broadcast flag is again rearing its ugly head and media and publishing companies continue to try to buy legislation giving them free rein with users' rights, most librarians are completely unaware of just how much these moves could affect them.

Let's discuss a very chilling example, though, to help illustrate the point. Libraries do what we do because of something called the "right of first sale," which essentially means that we can buy an item and circulate it to patrons specifically because we bought it, and we can then do with it as we wish (in our case, we like to share). It's a fair use right that people take for granted with physical items like books, CDs, and DVDs: "I bought it, and if I want to lend it or give it permanently to someone else, I can."

There are media, entertainment, and other types of companies that would love to change that, but it's too embedded in our law and in our minds for them to even try (which doesn't stop them, but so far the courts have agreed with us for the most part, rather than with them).

This isn't true in the digital world, though. Not only are these same rights nonexistent in our law when it comes to digital content, but these same companies are able to advocate and contribute obscene amounts of money to legislators to make sure THEY are the ones who will control these rights. They would love nothing more than to tell users when and how they can use content, putting restrictions on what you and I would normally think of as "our rights."

That's what it means in the abstract, but try this on for hypothetical size. Let's say that there's a company called ReallyGreatDigitalContent, and it likes libraries because we're actually a pretty big market. It starts negotiating with libraries to sell them their great digital content, and Really Great Public Library—RGPL—(or any other library in the U.S.) decides to sign an agreement in order to provide its patrons with access to such really great digital content. The agreement includes words like "purchased" and "ownership," and it allows them to buy content at a specific price/level for one year.

RGPL clears the agreement with its lawyer, and then starts buying microcontent from the company, content confident that they actually own—on which they are spending a great deal of money to purchase.

But therein lies the problem, because while RGPL THINKS it owns the content in the traditional sense of the term—in the same way it thinks it own the books, CDs, and DVDs it has purchased—it DOESN'T. Because digital content is different from physical content, in that there is no right of first sale for it, despite the seemingly reassuring terms of the signed agreement.

So at the end of the year, RGPL allocates the same budget line to renew the agreement for another year and buy even more really great digital content for its patrons; however, now the company ReallyGreatDigitalContent has changed its mind. Prices go up to an even more insane level, one that effectively prices the content out of RGPL's budget range. Disappointed, but mindful of its budget, RGPL reluctantly decides not to renew the agreement and decides to just keep circulating the content it already purchased under the previous agreement.

Except it can't—as ReallyGreatDigitalContent is quick to point out to the library. RGPL librarians are stunned when the company alleges that unless they renew the agreement, they cannot circulate the older content they previously purchased. The librarians are sure they understand what words like "purchased" and "ownership" mean, so they contact their lawyer, the one that approved the original agreement.

Their jaws have to be scooped up off the floor when the lawyer confirms that ReallyGreatDigitalContent is right and that "owns" doesn't mean what we think it means when it comes to the digital world. In fact, it turns out that, technically, RGPL does "own" the content, but they have to renew the agreement and pay an additional fee in order to circulate the content. It sounds completely surreal and impossible, but it's true.

Because there is no equivalent "right of first sale" in the digital world, this is EXACTLY what could happen to libraries, especially if these companies continue to buy legislation that favors their copyright rights over peoples' fair use rights.

This is just one reason why it's so important that librarians understand that copyright and DRM issues are critical for us, and why we need to explain this to legislators AND the public. There's a lot more to all of this, and you need to understand the big picture, even if you don't grasp every detail. Start paying attention to sites like Academic Copyright, the copyright-related posts at Boing Boing, Copyfight, Digital Consumer, Freedom to Tinker, Furdlog,, or any of a hundred other sites out there that discuss these issues.

I don't care which ones you read (and feel free to leave additional reading suggestions in the comments), but start reading and paying attention, because this hypothetical situation could be a reality tomorrow.

Technorati tags: copyright, digital content, digital rights management, DRM, electronic resource management, fair use, library, licensing agreement, right of first sale

Comments (6)

Don't know technical

Don't know technical problems but I do know that it's a hard thing to make this change in educational system.

The problem with your

The problem with your hypothetical is that it presumes that the terms 'purchased' and 'ownership' in a contract necessarily transfer title to the copyright. Your example perfectly describes how copyrighted content is customarily provided under a license agreement (limited right to use for a specified period). Assuming the contract was cleared by a competent lawyer, he/she would be able to advise the client as to whether the title to the copyrighted content is being purchased or whether, as indicated in your hypo, only a limited right of use is being gained.

Therefore, your hypothetical, as evidence in support of the claim that there is no digital right-of-first-sale doctrine simply because the copyrighted content is provided in digital (as opposed to physical) form, is based on a faulty premise and completely wrong.

David, I'm not a lawyer, so

David, I'm not a lawyer, so I cleared this concept with someone who is, and he doesn't believe I'm wrong. The point of my post is that librarians don't know enough about this to be able to read the contracts, so we think we own content but in reality, we don't. I think the concept still stands.

The way I've always seen

The way I've always seen this issue is that copyright deals with who has the rights to copy someone's intellectual property.

If I have 'rights of first sale' for a book, this does not mean I can photocopy the book and give to others.

A digital world situation is not technically a 'borrowing' situation. Transmitting a digital file is more akin to copying than it is to lending, therefore the 'rights of first sale' do not apply. This may be wrong (I'm no lawyer), but it makes sense to me.

As per Coase theorem, however, it really doesn't matter _who_ you give property rights to -- you will still achieve an efficient economic outcome. We could give copyright power to the consumer. However, I think this would reduce access to content, because artists etc would want to charge a very high premium to give up those rights.

I agree with the above that

I agree with the above that this has been an issue for some time. I consider a library to not truly own any item that has had its rights restricted in some way. Therefore, you don't really own:

- Any book you bought that came with a shrinkwrap - most textbooks these days or books bundled with CDROMs. Due to licensing, many libraries are not permitted to circulate the CDs or allow access to the 'added content' websites that come with such books.

- CDs - you don't own the music, just the physical coaster and the right to play it in your private home and make one private copy (depending where you live), unless there's DRM

DVDs - same as the above, removing the right to make a personal copy due to DRM. And of course, there's those pesky regions.

First sale still applies to the above, sure, but the right to do what is allowable within the law for each of the above has been restricted for some time.

I agree that we need to become empowered about these issues by learning and reading. I would add the liblicense-l mailing list for discussion of database and journal licensing issues.

For a few years I worked on broadcast licensing compliance in the library. It was tedious, complex, required constant rereading of the Copyright Act, publisher websites, licenses, meetings with lawyers etc, but it did give me a much better understanding of the issues that I'm glad to have now.

As an aside, if you receive CDs for free from record companies (many broadcast and music libraries do, and perhaps others have them donated or purchased from public radio fairs) check the covers carefully. They may have a note inserted to state they they are promo items which 'remain the property of the record label at all times'.

Actually, this hypothetical

Actually, this hypothetical scenario is a reality now and has been for several years, so I absolutely share your sense of urgency. Within the academic sectors, most librarians who are responsible for licensing digital content are very aware of these issues. Negotiating terms for perpetual access, carefully evaluating preservation/archiving policies, educating your legal counsel about key library issues and dealing with a whole host of other related things we didn't have to worry about in the print world have become routine parts of the licensing process. But academic librarians got to that point after having been burned by just the kinds of scenarios you describe. Every library school student needs to get a solid grounding in these issues.