Intellectual Freedom and

Access to Information in the

Digital Age

Intellectual Freedom and

Access to Information in the

Digital Age

"Intellectual Freedom is the right of every individual to both seek and receive information from all

points of view without restriction." (ALA)

Assumes access to information

"Intellectual Freedom is the right of every individual to both seek and receive information from all

points of view without restriction." (ALA)

Assumes access to information

In the past decade, a combination of technology and law has

combined to limit access to information in the U.S.

In the past decade, a combination of technology and law has

combined to limit access to information in the U.S.

Observation:Observation:

Question:

What responses have these changes inspired, and what effect

will those responses have on access to information and to the

practice of intellectual freedom in the U.S.?

Question:

What responses have these changes inspired, and what effect

will those responses have on access to information and to the

practice of intellectual freedom in the U.S.?

Discussion OutlineDiscussion Outline

• frantically-paced background overview• examples of new types of access

limitations that have arisen since 1997• examples of responses to new access

limitations• scholars• general public

• frantically-paced background overview• examples of new types of access

limitations that have arisen since 1997• examples of responses to new access

limitations• scholars• general public

Copyright confers upon the owner a specific set of rightsCopyright confers upon the

owner a specific set of rights• right to reproduce - to make copies• right to distribute the work• right to perform the work in public• right to make derivative works

• right to reproduce - to make copies• right to distribute the work• right to perform the work in public• right to make derivative works

Balance of rights for users: fair use and first sale

Balance of rights for users: fair use and first sale

• fair use provides for exceptions which are beyond the control of the copyright holder

• first sale doctrine makes libraries, gifts, and rental stores possible

• fair use provides for exceptions which are beyond the control of the copyright holder

• first sale doctrine makes libraries, gifts, and rental stores possible

Changes in LawChanges in Law• period of time copyright is in force - Sonny

Bono Copyright Extension Act of 1997• expansion of types of information covered

- e.g., proposal to cover database contents• deletion of the need to affirmatively claim

copyright - effect on use because of inability to find owner

• period of time copyright is in force - Sonny Bono Copyright Extension Act of 1997

• expansion of types of information covered - e.g., proposal to cover database contents

• deletion of the need to affirmatively claim copyright - effect on use because of inability to find owner

Changes in TechnologyChanges in Technology

digital changes everything • with copy protection and

licensing technologies, control over the use of a legally acquired work falls largely to the owner

digital changes everything • with copy protection and

licensing technologies, control over the use of a legally acquired work falls largely to the owner

Confluence of law and technology

Confluence of law and technology

Digital Millennium Copyright Act (1998)Digital Millennium Copyright Act (1998)

Technology supported by law limits information access

Technology supported by law limits information access

• fair use becomes matter of owner's technological choice rather than of law

• first sale doctrine becomes irrelevant given license control

• Result: balance of rights tilts in favor of owners

• fair use becomes matter of owner's technological choice rather than of law

• first sale doctrine becomes irrelevant given license control

• Result: balance of rights tilts in favor of owners

New Problems, e.g.,Access to Scholarly

Materials

New Problems, e.g.,Access to Scholarly

Materials

Access Limitations: CostAccess Limitations: CostCost Increases 1986-2000

0

50

100

150

200

250

Journal Cost CPI

Percent Increase

Access Limitations: TechnologyAccess Limitations: Technology

• digital subscriptions - printed copies increasingly not available

• once subscription lapses, no access even to issues published during subscription period

• digital subscriptions - printed copies increasingly not available

• once subscription lapses, no access even to issues published during subscription period

ResponsesResponses

LegalLegal

• Judicial:- Eldred v Ashcroft

- Kahle v. Ashcroft

• Legislative- PDEA, etc.

• Judicial:- Eldred v Ashcroft

- Kahle v. Ashcroft

• Legislative- PDEA, etc.

CreativeCreative

New scholarly publication models, e.g., • SPARC®• Budapest Open Access Initiative• Public Library of Science• BioMed Central (UK)• Directory of Open Access Journals

• over 800 journals listed

New scholarly publication models, e.g., • SPARC®• Budapest Open Access Initiative• Public Library of Science• BioMed Central (UK)• Directory of Open Access Journals

• over 800 journals listed

CreativeCreative

• popular extra-legal solution: ignore the law if it is too onerous• file sharing• not simply an economic decision - also a

control decision• iTunes, European download services as

examples of legal downloading

• popular extra-legal solution: ignore the law if it is too onerous• file sharing• not simply an economic decision - also a

control decision• iTunes, European download services as

examples of legal downloading

CreativeCreative

• popular legal solution: use the letter of the law to change its spirit • Creative Commons• uses copyright to selectively grant or

withhold specific rights• creators keep some rights, grant others• donate work to the public domain (since 1992,

must affirmatively do so)• Founder's Copyright: 14 years, then public domain

• popular legal solution: use the letter of the law to change its spirit • Creative Commons• uses copyright to selectively grant or

withhold specific rights• creators keep some rights, grant others• donate work to the public domain (since 1992,

must affirmatively do so)• Founder's Copyright: 14 years, then public domain

CreativeCreative

• Organized access to public domain or"commons licensed" resources• ibiblio• scientific sources, e.g., BioMed Central• new initiatives underway in specific areas e.g.,

Public Commons of Geographic Data• MIT's Open Courseware initiative• search engine initiatives, e.g., Google and 17

major universities

• Organized access to public domain or"commons licensed" resources• ibiblio• scientific sources, e.g., BioMed Central• new initiatives underway in specific areas e.g.,

Public Commons of Geographic Data• MIT's Open Courseware initiative• search engine initiatives, e.g., Google and 17

major universities

SummarySummary

• law and technology have combined to tip balance of traditional rights between owners and users since 1997

• legal remedies to restore balance do not seem likely in the present political climate

• people are therefore taking copyright and re-designing it into "copyleft" to suit their own purposes

• law and technology have combined to tip balance of traditional rights between owners and users since 1997

• legal remedies to restore balance do not seem likely in the present political climate

• people are therefore taking copyright and re-designing it into "copyleft" to suit their own purposes

ChallengesChallenges

• scholarly works: credibility and incentives• popular: create business models that will

both broaden access and "Promote the Progress of Science and Useful Arts” - i.e. need to provide financial incentives

• international agreements are an increasing challenge - Berne Convention, WIPO, etc.

• scholarly works: credibility and incentives• popular: create business models that will

both broaden access and "Promote the Progress of Science and Useful Arts” - i.e. need to provide financial incentives

• international agreements are an increasing challenge - Berne Convention, WIPO, etc.

Conclusion:Conclusion:• responses are both legal and creative:

creative thus far more promising• commons inspired "copyleft" approaches

are becoming an important force in enabling access to scholarly and creative works; and

• these approaches will contribute to the effective practice of intellectual freedom in this country going forward

• responses are both legal and creative: creative thus far more promising

• commons inspired "copyleft" approaches are becoming an important force in enabling access to scholarly and creative works; and

• these approaches will contribute to the effective practice of intellectual freedom in this country going forward

•"This song is Copyrighted in U.S., under Seal of Copyright # 154085, for a period of 28 years, and anybody caught singin it without our permission, will be mighty good friends of ourn, cause we don't give a dern. Publish it. Write it. Sing it. Swing to it. Yodel it. We wrote it, that's all we wanted to do.” Woody Guthrie

•"This song is Copyrighted in U.S., under Seal of Copyright # 154085, for a period of 28 years, and anybody caught singin it without our permission, will be mighty good friends of ourn, cause we don't give a dern. Publish it. Write it. Sing it. Swing to it. Yodel it. We wrote it, that's all we wanted to do.” Woody Guthrie