decoration decoration
Stories

GROKLAW
When you want to know more...
decoration
For layout only
Home
Archives
Site Map
Search
About Groklaw
Awards
Legal Research
Timelines
ApplevSamsung
ApplevSamsung p.2
ArchiveExplorer
Autozone
Bilski
Cases
Cast: Lawyers
Comes v. MS
Contracts/Documents
Courts
DRM
Gordon v MS
GPL
Grokdoc
HTML How To
IPI v RH
IV v. Google
Legal Docs
Lodsys
MS Litigations
MSvB&N
News Picks
Novell v. MS
Novell-MS Deal
ODF/OOXML
OOXML Appeals
OraclevGoogle
Patents
ProjectMonterey
Psystar
Quote Database
Red Hat v SCO
Salus Book
SCEA v Hotz
SCO Appeals
SCO Bankruptcy
SCO Financials
SCO Overview
SCO v IBM
SCO v Novell
SCO:Soup2Nuts
SCOsource
Sean Daly
Software Patents
Switch to Linux
Transcripts
Unix Books
Your contributions keep Groklaw going.
To donate to Groklaw 2.0:

Groklaw Gear

Click here to send an email to the editor of this weblog.


To read comments to this article, go here
The British Library - "The world's knowledge" DRM'd and for a price
Sunday, May 07 2006 @ 10:35 AM EDT

My grandmother was a research librarian. If you live in a small town, you may not know what that is, but if you live anywhere near New York City, you know that if you are working on a research project, or even if you just want to know what makes the sky blue, you can call the NYC Public Library and ask to speak to the research department, and a research librarian will help you find what you are looking for. Before there was a Google, there were research librarians like my grandmother.

Of course, nowadays, you can chat live with a librarian online. And the kinds of things my grandmother kept in her head are now pages of online info, and there are instructions on that page on how to find a research librarian to help with questions by email or phone. You still can benefit from research librarians' skills, because, as this page puts it, "Whether it's searching the Internet, contacting a trade association, or finding facts from books, journals, government documents, or online databases, our professionally trained information specialists know the quickest way to find accurate information...from seconds ago or centuries ago."

If you saw the old movie, The Desk Set, my grandmother was the Katharine Hepburn character.

And a character she was, indeed. I loved my grandmother, and I was like a little barnacle any time she was around. For some years when I was a little girl, she lived with us, and I'd have to say she was the dominant influence in my young life, because I both loved and admired her. It was my grandmother who taught me how to write. I wonder what she'd make of libraries today. I wish I could ask her. Isn't death the worst thing? I'd give anything to ask her what she thinks libraries should do about lending digital copies of books. I'm sure she'd have something useful and interesting to say, my dear, brainy grandmother. It's a major question that all libraries now face, and after researching what one library is doing, the British Library, using Microsoft's .NET framework and a system they call Digital Object Management or DOM, I think the answer they've arrived is altering the very meaning of what a library is, what it's for, and who it benefits.

My grandmother worked in an era when women didn't work unless they absolutely had to. And she had to, first because she came from farm folk who didn't have a lot, and so she taught school in a little one-room schoolhouse (well, two rooms) with a pot belly stove to heat the room and she'd trudge through feet of snow to get to the school early and get the stove going. She was so relieved when my grandfather showed up in her life and she didn't have to teach like that any more. Then after a happy interlude of marriage and family, my grandfather died suddenly and prematurely from scarlet fever, and she taught school again, high school this time, in more established settings. He got it from drinking water on a train, the family story went, and I was taught never to drink water on trains, because, my grandmother said, it came from ice blocks that melted, and people were not careful to be clean.

We'd have tea together every day when I was little, just the two of us, only my tea was what she called cambric tea, namely hot water with milk and sugar, in pretty little cups, and she would tell me stories about her life. My favorite story was about her going to a dance with my grandfather, before they were engaged, and her petticoat fell down to the floor. She fell in love with him on the spot, because he just reached down and scooped it up and waltzed her out of the room, as if nothing extraordinary had happened and it wasn't the most humiliating moment in her life. My grandfather was a character too, but that's a story for another day. She taught me many valuable things, like how to deal with adversity, and she taught me values by telling those stories.

That is how I know quite a lot about libraries. She taught me how to use the card system. They'd have rows and rows of wooden file cabinets with drawer after drawer of index cards, so you could find where things were located in the library. That is how, when I first read about Google's books project, I knew instantly that what they are wanting to do is to set up a kind of digital version of those index cards, not to "steal" the books, but so we all would know where to find them. When she was first widowed, she taught school, but later she decided to go to graduate school and switched careers in mid-life to become a librarian. My grandmother was never afraid to try new things.

It was she who introduced me to London, her favorite city, when I turned 15. And because I wanted to see Paris, she took me there too, although she didn't speak a word of French, and we had an absolute blast. She was such a fun person, always ready for an adventure. I was old enough to realize though that Paris is for when you are a bit older and not with your grandmother. She kept a very watchful eye, which taught me something important too, now that I think of it.

So my grandmother was self-made, through real effort and hard work, a survivor, and she truly enjoyed a very long and unusually interesting life. Becoming a librarian meant she had a more comfortable time from then on, because she ended up head of the department, and she worked for many years after the normal retirement year, because she just loved it, and she was so valuable, the library blinked at the regulations. Years later, when I read Langston Hughes' poem, Mother to Son, it reminded me of my grandmother's grit and determination and flair for life:

Mother to Son

Well, son, I'll tell you:
Life for me ain't been no crystal stair.
It's had tacks in it,
And splinters,
And boards torn up,
And places with no carpet on the floor--
Bare.
But all the time
I'se been a-climbin' on.
And reachin' landin's, and turnin' corners,
And sometimes goin' in the dark
Where there ain't been no light.
So, boy, don't you turn back.
Don't you set down on the steps
'Cause you finds it kinder hard.
Don't you fall now--
For I'se still goin', honey,
I'se still climbin',
And life for me ain't been no crystal stair.

When her husband died, her mother told her something very much like that, although in her own cultural style. My mother still has the letter. And in the letter my great-grandmother told my grandmother to view the terrible tragedy in her life as an opportunity to teach her offspring what it means to endure in God's strength. Everyone in those days was religious, I think, in America anyway, or at least, like Mark Twain, they pretended to be. But my great-grandmother was sincerely so. Such folk saw challenges as a way to show that they knew how to rely on God to meet life's hard knocks with dignity and to build and refine character. It is, to me, a beautiful letter, and my grandmother lived it and she endured what could not be changed, and she didn't sit down on the stair because she found it "kinder hard". She had several opportunites to marry again, but she loved my grandfather so much, she just never could quite say yes to anyone else. Instead, she invented a new and full life, travelled a great deal, loved her job, which she thought was important, made many friends, and she was happy, despite the hole in her heart that never fully healed. I don't know, though, if she'd want to be a librarian in the digital age.

Everyone realizes that technology means people can copy and share digitally, and so what should a library do? Here is the NY Public Library's page on copyright and how it impacts their services. They say they can find the hard to find, and even if they don't have the document you want, they'll find it for you. That was my grandmother's job, finding the hard to find, and she enjoyed it. I guess you could say the apple didn't fall too far from the tree.

Libraries are looking for ways to loan digital works while respecting copyright law. There has always been a certain tension between libraries and publishers, because the latter want everyone to pay for a book or article, and if you don't have the money, too bad for you. Libraries, on the other hand, traditionally want to make knowledge available to all. It's the heart of what they are, or what they traditionally have been. But since my grandmother's day, we have new, top-heavy copyright laws, with the entertainment moguls pushing for what suits them sitting on top, and once RIAA lawyers get in the mix, you know how complicated everything gets, and so libraries have to be careful to set policies that comply with the law. It's hard. Here's the dignified way the NY Public Library does so, posting a notice about copyright law and what it means to you.

So, I can search for one of the books my grandmother introduced me to when I was a child, the Betsy-Tacy series, and it will tell me which branch library has the book to borrow, and I can read a chapter of the book online to see if it's worth the trip. You will see the copyright information is prominently displayed, so you know it isn't public domain, and you can behave accordingly. It is obvious that they could make the entire book available digitally, not just the first chapter, and eventually that is exactly what will happen to all books, because people are acclimating to the Internet and no one wants to drive to Long Island or the Bronx or whatever to borrow a book, when they know it can be easily emailed to them at nearly zero cost to anyone after the first copy is scanned in. (I can search instead for the Betsy-Tacy books on Google, and as you can see, they provide considerably less in the way of text, for those of you in a panic about Google Books.

But, then what? What about copyright? If the library can email it to me, I can email it right on to you and you and you, or put it on BitTorrent, if I don't respect the law. Of course, there are a lot of laws that depend on simple compliance. I can kill someone with a knife from my kitchen drawer, if I decide I don't care about the law forbidding murder, and the knife doesn't arrive with any kind of device to prevent it. I'm on my honor to keep the law. Not everyone does, of course, but we don't ban knives, because they are useful for chopping up vegetables. So we rely upon enforcement of the law, not predictive prevention by mechanical means.

But with copyright, for some reason it is perceived as not enough. Indeed, the library has an ebook collection, and music and videos too. How does it work? If I want to read "Macromedia Flash 8 for Dummies," for example, I can borrow the ebook for 21 days, and, while most of their books come with prohibitions on copying, I can copy this book ten times in a seven day period, and there are no restrictions on printing pages, remarkably enough. This indicates a couple of authors who are not paranoid, and I commend them. Even in a digital age, you can still act like a human being, if you so choose. Creative Commons licenses make that possible too. But if I want to borrow The Adventures of Tom Sawyer, I can't. They don't have it. They do have an audio version, and you can transfer it to CD and transfer to a device. It's a system from a company called OverDrive, which strikes me as a funny name for a restriction system. After 21 days, the book "returns" itself, because the files expire and I won't be able to open or listen to the book any more, assuming I have no l33t skillz and no criminal inclinations. In case I do suffer from the latter, there is a copyright notice at the bottom of the page that leads to a page that lets me know that copyright law covers digital copies too:

Important Notice about Copyrighted Materials

The laws of copyright protect the digital content ("Content") that is made available in this Software (as defined in the Digital Content License Section of the OverDrive Terms and Conditions of Use "Agreement"). See http://www.overdrive.com/terms.asp. Copyrights in the Content are held by their respective owners.

You may use the Content for personal use only, any commercial use is prohibited. The Content and any other copyrighted material may not be modified, copied, distributed, shared, displayed, emailed, transmitted, sold or otherwise transferred, conveyed or used, in a manner inconsistent with the Agreement, use of the Software or rights of the copyright owner.

Now, that book is in the public domain in the US, so I'll probably just get it without any rights restrictions from Project Gutenberg and read it aloud myself. Thank you to all the volunteers who work to make those books available. The OverDrive license says basically the same thing, with more words and more warnings. Here's the heart of it:

Digital Content License. When you "clickout" or otherwise "download" (referred to herein, collectively as "Download") Content from the OverDrive Service, OverDrive grants you a limited, revocable, non-exclusive, non-transferable license to download or stream such Digital Content to your computer and/or your Device(s) solely for your personal non-commercial use. You shall not copy, reproduce, distribute or use the Digital Content in any other manner. You shall not sell, transfer, lease, modify, distribute or publicly perform the Digital Content in any manner and you shall not exploit it commercially. Do not (A) decompile, disassemble, or reverse engineer the Digital Content or attempt to do so; or (B) modify the Digital Content or create any derivative works therefrom. This license to the Digital Content you Download will continue for as long as your copy of Digital Content exists pursuant to and in accordance with the terms and conditions of this Agreement. ...

Security, Cracking and Hacking. You shall not violate or attempt to violate the security of the OverDrive Service. Accordingly, you shall not: (i) access data or materials not intended for you; (ii) log into a server or account which you are not authorized to access; or (iii) attempt to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without proper authorization. Violations of system or network security may result in civil or criminal liability. We reserve the right to investigate occurrences which may involve such violations and may involve, and cooperate with, law enforcement authorities in prosecuting users who have participated in such violations. You agree that it is your responsibility to install anti-virus software and related protections against viruses, Trojan horses, worms, time bombs, cancelbots or other computer programming routines or engines that are intended to damage, destroy, disrupt or otherwise impair a computer's functionality or operation which may be transferred to your computer via the OverDrive server.

Hmm. That last paragraph takes us into a new zone. If I want to listen to the Tom Sawyer audiobook, I must install antivirus software? I discern they assume we are all using Windows. (Actually, the NY Public Library accommodates Apple software too, although they seem never to have heard about GNU/Linux users.) But I'm not using Windows. Still, that requirement is in the license. To be law-abiding, I'd have to install software I don't need or want. Plus, there is something that doesn't feel quite right about being told what one must do with one's own property, and my computer is mine. But I suppose my remedy is not to use the service.

But let's say I can swallow that part, understanding as I do the horrors that Windows users experience and that the regulation is for the common good. What, though, about the part where I must promise not to use the material in any way other than to read it? What about fair use? Poof. It's gone. Fair use is part of copyright law too, of course, but they don't mention it in any way, so unless I happened to know about it, the license appears to forbid it. And if I accept that license, have I contracted away my fair use rights?

They have a privacy policy too, which essentially says that unless you give them the info they need about yourself, you can't use the service. So, one difference between now and my grandmother's day is that reading involves being tracked in ways no one used to do. Of course, my grandmother knew what you were researching, but there was no databank that was retained with such personal information as your credit card. If I want a book badly enough, and don't wish to travel, the truth is, I'd probably still sign up and do this. But it does have a feel to it that is different from borrowing a book in meat space, doesn't it?

It is presumed by some that we are all criminally inclined nowadays. Sadly, the truth is, a few of us are. (Most of us aren't, but some of us can see that technology has changed everything, but that's another issue.) My grandmother would likely point that out. She stopped teaching because she noticed a change in her students, that over time there was less and less respect shown to authority and she said she ended up spending too much time trying to maintain some order in the classroom and less on teaching, and it became both boring and disturbing to her, so that is why she switched careers. And the truth is, if everyone in the world showed respect to others, there would be no need for elaborate DRM protections, because you could just say, "You can use this for your personal use, but please don't use it commercially or put it on the Internet" and we'd all comply. It's simply the case that the worse people behave, the stricter the laws tend to become. So there is a certain amount of karma in this picture. But why isn't it enough to let people know the law and then enforce it against those that break the law?

Draconian DRM is undeniably altering what a library is and how knowledge can be found and used. It alters not only what libraries are like; it alters the way copyright law works, without anyone passing a law. And it makes corporations like Adobe enforcers of the law and of whatever restrictions authors and publishers choose to place on top of the law. Where is the statute that says how many times you can copy something within what time frame? Who decides what is fair? Who passed a law banning fair use rights? You may say that authors are free to set the terms, but at least under US Copyright Law, that isn't the case. Fair use limits what they can prevent. As this article, "DRM, Trusted Computing, and the Future of our Children," points out, DRM alters the way copyright is enforced:

The biggest buzzword in DRM right now is 'Trusted Computing'. This is about creating a way for companies to trust your computer with their copyrighted material (rather than anything to do with consumers trusting their computers). For several years Intel have been included a 'Trusted Computing' encryption chip on motherboards, and when Windows Vista is released it will support this framework. For the first time there will be a very solid and secure way for a publisher to determine if your machine has the right to play their copyrighted material. When you try to play a movie, it will check with their server to see if your Trusted Computer has the correct permissions. If you attempt to run an illegitimate file, your computer will refuse. No matter what you do, a chip on your motherboard will refuse to cooperate.

This is a very strange approach to copyright enforcement. It means that when you buy a copyrighted file, you don't actually have the permission to use it. Your computer has the permission. The file won't work on another computer, or your mobile phone, or your PDA, or your heavily modified XBOX. It's a bit like selling a person a book, but designing it so that people cannot read it in the bath (or in the garden or in the kitchen). Instead of finding a way to stop the end user giving illegitimate copies of a work to other people, this type of DRM is about controlling the right to copy work for any purpose, and in the process it determines the end user consumption method and options as well.

Would you like to see what a more fully DRM-loving library looks like? Take a look at the British Library. The British Library's motto is "The world's knowledge." For example, here's how they describe themselves:

The British Library is the national library of the United Kingdom and one of the world’s greatest libraries. The collections include more than 150 million items, in over 400 languages, to which three million new items are added every year. We house books, magazines, manuscripts, maps, music scores, newspapers, patents, databases, philatelic items, prints and drawings and sound recordings.

On their "Digital Object Management" page, they add this:

Under longstanding Legal Deposit legislation the Library receives a copy of every printed publication produced in the UK and Ireland. We also purchase materials extensively from around the world.

Technological developments mean that we are now collecting an ever-increasing number of electronic items. These include

  • Digitised materials sourced in the UK, received under a voluntary arrangement with some publishers since January 2000
  • The digitisation of our own collections of newspapers, sound, etc
  • e-Journals
  • Cartographic data
  • Audio CDs and other sound items
  • Publishers' archives
  • The products of Web archiving

Beyond this, however, the Legal Deposit Libraries Act 2003 (which should come into effect some time in 2006 or 2007) extends the present legislation and places legal requirements on us.

  • It enshrines the principle that electronic or e-publications and other non-print materials will be deposited in the Library

  • It ensures that these publications can be saved as part of the published archive, and become an important resource for future generations of researchers and scholars.

The processes needed to deal with electronic materials are intrinsically the same as those needed for traditional print materials, but the solutions need to be different.

The British Library's solution is Digital Object Management or DOM. And they explain their software choice:

Software tools

We have also assessed the choice of tools in building this storage sub-system. We have chosen to work in a Microsoft .NET framework, using BizTalk 2004 and C#. We have established that there are clear productivity and cost benefits from this approach. We have looked at DSpace, Fedora, and ePrints software for the digital repository system: none of these offer exactly what we need, although some design features are of interest.

So it's a Microsoft shop, with all that that implies for your privacy and usability and security. So let's say you wanted a digital copy of a document housed at the British Library. How does it work? Obviously, they won't just send it to you in the clear. They don't trust you or the law's ability to dissuade you from behaving criminally. So what is their solution? Here you will find the British Library's Document Supply Services services terms and conditions, which is too long to quote in full but which is horrific enough that I hope you do read it. What stands out is that they charge money to loan. Libraries don't traditionally cost anything, if you wish to borrow a book. That little shift changes the landscape utterly.

Individuals can't borrow digital materials anyway, as far as I can see. It's such a complicated system, I may not have it all figured out, which is another issue. But from what I see, individuals can only buy a license to read within a time frame. Only organizations can use the digital loan service. The library reserves the right to refuse you service. They also reserve the right to only send to your "registered address". The NY Public Libary, in contrast, will send your materials to you anywhere you happen to be, recognizing no doubt that people do travel and sometimes they are in a hurry and they registered at their home address, and don't want to have to run home to receive a digital copy. The British Library makes you buy, but you don't really get ownership of what you bought. There are no first sale rights, because you get timed documents. You are buying a kind of timed access during a window they set. Even if you're an organization and you get something on loan, you can't copy, scan or electronically store the materials they provide.

But that isn't enough to satisfy them. You also must first swear -- no kidding -- you are abiding by copyright law. Say....*what*? Who thinks up this stuff? Who do they think they are? You think I'm exaggerating, don't you? No. Take a look:

3.1 We will supply Copies via the Library Privilege Photocopy Service solely to those customers who confirm that they conform to the requirements of the following sections of the UK Copyright, Designs and Patents Act 1988 (“the Act”) as amended from time to time including any Regulations made there under:
Sections 37-39;
Sections 41-42; and
Sections 45-50

3.2 The Library Privilege Photocopy Service is NOT available to You if You are:

3.2.1 registered as an individual;
3.2.2 located in the USA; or
3.2.3 a commercial organization except if located in the UK and requests are made under sections 45-50 of the Act

3.3 If you are located outside the UK, it is Your responsibility to confirm that You are not contravening Your own country’s legislation in receiving Copies provided by Us under the terms of the Library Privilege Photocopy Service.

3.4 If Your organisation is eligible to receive Copies under the Library Privilege Photocopy Service, You undertake that, for each Copy requested under:

3.4.1 Sections 38 and 39 of the Act (supply of copies for non-commercial research or private study purposes) by a member of Your organisation, You will obtain from such person a declaration substantially in accordance with the Act’s current Regulations (a current version of the declaration is available at www.bl.uk/copyright or from Customer Services) and payment from such person at a rate as stipulated in the Act’s Regulations. If You do not obtain a signed declaration from the person making the request then You will deemed to be in breach of these Terms and Conditions and You may be liable for any costs or damages suffered by Us as a consequence of Our supplying such Copies on the understanding that such a declaration has been obtained. You (and the person giving such declaration) must not copy, scan, store electronically or further sell such Copies, unless You have a separate licence or agreement that specifically permits this;

You are allowed to print out one copy, and that is all, and must promise to delete the electronic copy:

4. Electronic Document Delivery

4.1 You undertake that any Copies delivered by any electronic method (including facsimile transmission) will not be processed, manipulated or retransmitted other than to enable a single copy on paper to be printed. In addition, You must ensure that all electronic versions of the Copy are deleted after successful printing unless specifically indicated otherwise on any message accompanying the Copy.

So cut that "manipulation" out. Document manipulation is verboten, whatever that means. When you order that digital document, you will be using what they call secure electronic delivery, which is a method of sending encrypted PDFs which you must print out within 14 days. Here's how it works:

To read and print documents sent to you by SED, you first need to download and install the full version of Adobe Reader 6.0 or later- earlier versions of Reader and the basic versions of Reader 6.0 or later won't let you open the encrypted PDF files. We recommend that you use at least version 6.0.1.

Once the software is installed, you need to activate the Digital Rights Management (DRM) function. If you have installed the latest version of Adobe Reader (version 6.0.1 or later), this happens automatically when you download a secure document. If you have version 6.0: connect to the internet, open Reader 6, then choose Tools > eBook Web Services > Adobe DRM Activator. Click 'Yes' to launch your web browser and connect to the Adobe DRM Activator web site. Then follow the on-screen prompts.

Once you have installed Adobe Reader, it's vital that you test that it's working. If you can read and print this test document, your copy of Adobe Reader is working and you can confidently receive your documents by SED.

You also must pay what they call a copyright fee:

Copyright Issues and Terms of Supply

All documents sent by Secure Electronic Delivery require the additional payment of a copyright fee. The only exception to this is for UK and Irish registered customers wanting either Standard or 24 hour delivery, who can ask for the Library Privilege service if they satisfy all other criteria.

If you ask for SED and don't use the Copyright Fee Paid service, your order is likely to be rejected.

A copyright fee? What is that for? They have a service for ordering documents, called Articles Direct. Because they are supplying digital copies of paper documents, they have special rules. Here are some of the terms and conditions for that service:

All documents are supplied under licences from rightsholders or their agent(s). We will charge a publication-specific copyright fee as set by the rightsholder or their agent on all documents supplied in whatever format.... The copyright fee will be in addition to any service or delivery charges for the supply of the document....

The contents of documents supplied are copyright works. Unless you have the permission of the rightsholder, the Copyright Licensing Agency Ltd or another authorised licensing body, you may not copy, store in any electronic medium or otherwise reproduce or resell, any of the content, even for internal purposes, except as may be allowed by applicable law unless the document was supplied by electronic delivery or immediate delivery in which case a single copy may be printed (which may itself not be further copied).

If the document was supplied by electronic delivery, it must be downloaded from our secure server within 14 days of us sending you a notification email. The document can be accessed only once.

Some documents supplied by electronic delivery and immediate delivery can be stored locally on a hard drive for up to 3 years from the time and date given on the email notification or downloading, others will expire sooner. In all instances only one printed copy may be made. After 3 years, or sooner for some documents, view and print permissions will expire and you will no longer be able to open the document.

You can't store or copy most documents even for your own internal, private purposes. DRM makes it possible for the document copy to time-expire on their terms. Heaven help you if you try to print out your one permitted copy and you have a paper jam. Why do we need to pay a copyright fee? What is it for? The library explains:

Copyright is important because it protects the interests of those who create and those who invest in creativity. If there was no copyright, it would be impossible for creative people to make a living from their creativity.

No one would be willing to come up with the money to make a film, to write or publish a book or journal, or to bring out a record - because there would be no way of earning a return on that investment.

Now it might be going too far to say no one would publish a book or a journal without such copyright protection, as they claim. Cory Doctorow publishes his works online and at the same time sells them as traditional books, and he makes a living. How did that happen, if their theory were true? And as for journals, there are millions of bloggers out there, most of them writing for free. One thing is certain - we'll never run out of people willing to write. And American Idol stands for the proposition that there are literally thousands and thousands of people in the US alone who are wild to sing and make music for us. So it just isn't the case that no one will write or make music without money up front. The British Library continues:

Now that it is so easy to copy material, it is more vital than ever that we respect copyright so that people continue to produce the creative works that society needs. This is why copyright law has a method for providing financial reward to creators for uses of their intellectual property....

However, it is often much easier to obtain a copy via a supplier such as the British Library. This, too, deprives the author and publisher of income and therefore the law now says that in many circumstances a copyright fee must be charged.

So that is the purpose of the copyright fee, to provide income to authors and those who "invest in creativity". But it is also the death of the concept of a free library, where even those with little or no money can go to learn and access the world's knowledge. Is it acceptable to you that they must go in person, while the rest of us can use the digital capabilities technology makes available, because we can afford to pay and pay and pay? A real line has been crossed, here, with the British Library buying in to the traditional publishers' hatred of libraries. Librarians are supposed to stand up against such encroachments. My grandmother would have, I know. When she was young, she didn't have a dime to spare, and she became a highly educated woman in part because of libraries. She knew how vital they were to those whose dimes were all accounted for just to pay necessary bills but who were hungry to learn. Here's another part that really bothers me:

If you pay the copyright fee, and abide by any terms and conditions associated with the provision of the article (for example, you cannot re-distribute or re-sell it because this would also deprive the author or publisher of income), you will not be in breach of copyright.

What is it about DRM that makes people add on not-yet-legislated items to copyright law? In the US, anyway, there is no "copyright fee" that you have to pay or you will be "in breach" of copyright law. And US folks are allowed to obtain materials from the British Library. Here's when you must pay the copyright fee:

Although there are some exceptions, you will need to pay a copyright fee in most cases, including:
* If the document you are ordering is intended for any kind of commercial use whatsoever, or research / private study with a commercial purpose
* If you are not registered with the British Library or are registered as an individual
* If you are based in the USA
* If you order a document to be supplied by secure electronic delivery. Customers based in the UK and Ireland may order Library Privilege documents to by supplied by Standard or 24 hour secure electronic delivery, but 2 hour secure electronic delivery always requires payment of a copyright fee.
* If you are ordering more than one copy of the same article, or more than one article from the same issue of the journal (a separate copyright fee will have to be paid for each copy we make)

* If you want to circulate copies within your organisation.

For more information on the definition of 'commercial use', see our FAQs on Copyright.

Important: Paying the copyright fee does not mean that you are allowed to make further copies from the document without permission or an appropriate licence.

You do not need to pay a copyright fee for an item ordered on loan.

Here are the few instances where you don't have a pay a copyright fee:

* You are ordering the item on loan
* The copy is wanted for research for a non-commercial purpose or private study and you are making the request via an organisation registered with the British Library (note that this does not apply if you are based in the USA). For more information on the definition of 'commercial use', see our FAQs on Copyright.
* The copy is required for parliamentary or judicial proceedings, a Royal Commission or statutory inquiry.
* The copy is required to replace an item that has been lost or damaged, but this is only available for publicly funded libraries in the UK.

That leaves me out, because they don't loan to the US. So, it's pay, pay, pay for me. But wait a second. Here in the US, our Copyright Law permits fair use, and under fair use, I don't have to pay anything to the author and I don't need his permission to make fair use of his work. But if I pay up front, just because I am in the US, there goes my fair use rights, or they become paid-for rights, if they survive at all.

I guess I agreed to British law, now that I remember their terms and conditions, so what is the law there? There is a fair dealings provision of the Copyright, Designs and Patents Act 1988 (sections 29 and 30) "for non-commercial research purposes, private study, criticism, review or current news reporting, so long as the publication or reproduction is accompanied by a sufficient acknowledgement identifying the work and the author". The British Library suggests that you stick to no more than 5%, but that isn't the law in the US. Even if it were, where do you find that possible in the DRM? When the document shuts itself down, does your chosen 5% remain available? How does the DRM make it possible for me to exercise those rights?

Let's *all* keep the law down to the last jot and tittle, shall we? And by the way, when did the world move to enforcing the law by means of corporations? Adobe is now our copyright police?

If the copyright fee is for the author, how come he gets it if it's a rush order and not if it's by mail? It's still one copy. Now, if you live in the UK, you don't have to pay the fee on a loan. You are getting a copy, not just a loan that you return. But wait. They just told us that in some circumstances, we only get to keep the document you buy for a specified time period. So why isn't that a loan too? If I pay for something, I do think I should be able to keep it forever. And if I can't keep it, it's really a loan. So if it's a loan, I am paying a copyright fee for a loan. No? What am I missing? Deeper, why does any of this make sense, in a digital age, when you can set up a database and let it pretty much run itself? A fee for what? I thought the whole idea of a library was that it made books and music available to those who couldn't pay.

You fortunate UK and Irish guys don't have to pay the copyright fee but that doesn't mean they trust you. No siree. Here's what you have to do to prove you have no criminal intent:

If a copyright fee does not need to be paid on the copy you are ordering, we call it a Library Privilege copy. The person who wants the Library Privilege copy, i.e. the end user, must sign a Copyright Declaration Form in order to declare that they are not knowingly breaking copyright law. You can download Copyright Declaration Forms from www.bl.uk/copyright (PDF format). If the Library Privilege copy is delivered electronically or by fax, you must ensure that a similar declaration is signed. You do not return these forms to us, but instead should keep them for a minimum of seven years in case the rights owner, or their agent, requests an audit of the Library Privilege service.

Seven years? Copyright authors can request an audit of the British Library to find out if you failed to keep your permission slip for seven years? You have to keep your permissions slip longer than the IRS requires US citizens to keep proof of their finances? Are they insane? I note the Library doesn't want to be bothered with that stupid paperwork. Nope. It's for all you Would-Be-Pirates in the UK and Ireland. Happy bookkeeping. Doesn't it make you just yearn to get materials from the British Library?

So, for the rest of us, how much is this fee? That, of course, is the privilege of the author or those who have "invested in creativity". They can set it as they please. This is after all, about their happiness, under a law that seriously favors only them:

The publishers set copyright fees, either by themselves or through their agents, and the fees will therefore differ from publication to publication. The average level is around £7.50, but they can be much higher.

It's up to you to check an ever-changing online databases and tally up. There is some relief if the item is reeeeally old:

A default copyright fee of £5.00 per item is charged on certain non-journal material, such as conference proceedings and books. A fee of £0.00 applies to all items published over 100 years ago, plus certain material for which the rightsholder has set a fee of zero.

Oh, and there is a service charge, and here's the Terms and Conditions [PDF] they tell you to read on their How to Order page:

11. Copyright

All material is subject to UK Copyright Law. Requests for a complete reproduction of material that is in copyright will require written copyright permission from the copyright holder before Reproductions will accept the Order Form.The Customer must attach the original permission from the copyright holder to the order (photocopies are not acceptable).

12 Permission to Reproduce

The British Library owns and retains at all times the copyright on all reproductions produced. Customers may not reproduce any material supplied for any reason, (including academic or personal,and whether for profit or not) without prior written permission from the British Library. Customers wishing to reproduce supplied material should apply to the British Library Permissions Departments for the applicable fees.

What if you can't find the copyright holder? No. Really. What about orphaned works? There is no arrangment for that. Here's what you have to go through just to pay for and get the stuff digitally, if you are able to get permission. First, how to pay:

2. Documents supplied by secure electronic delivery - Terms of Supply

Documents are supplied under the Terms and Conditions of our Copyright Fee Paid service.

The contents of the document are copyright works, supplied by secure electronic delivery from the British Library. Unless you have the permission of the copyright owner, the Copyright Licensing Agency Ltd or another authorised licensing body, you may not copy, store in any electronic medium or otherwise reproduce or resell any of the content, even for internal purposes, except as may be allowed by law.

The document has come from an electronic store or has been scanned from a paper or microform original, under licence from the publisher. The publisher cannot be held responsible for any errors resulting from the scanning process.

The terms of the licence under which the document was copied and transmitted permit it to be printed only once....

Restrictions

The following restrictions apply, unless you have the permission of the copyright owner, the Copyright Licensing Agency or another authorised licensing body.

You may print only one paper copy, from which you may not make any further copies. You may not make further electronic copies or convert the file into any other format. You may not cut and paste or otherwise alter the text.

You may forward the notification email to the person who made the original request in order for them to print the single copy, but you may not save or print the document before forwarding it.

Licensed Intermediaries must observe the following additional conditions when forwarding an electronic file:

1. Only the notification email can be forwarded to the end user. The document must not be loaded on to a server for downloading by the end user.
2. The British Library cover sheet must not be detached from the electronic file.

Replacements for defective copies

If you need to ask for the complete document to be resent, because it is defective or is the wrong article, you must destroy the wrong/defective copy and any associated electronic files.

There are different restrictive terms if you receive it by FAX or mail. How do they plan on enforcing this? By fly bots buzzing through our homes to spy on us? Actually they have a plan. If you purchase certain materials and you don't fully pay, this is what you agree they can do about it:

We may enter Your premises without notice and recover the Products which have not been paid for in full. This sub-clause constitutes Your authority for Us to enter the premises of any other person holding the Products on Your behalf and on whose property the Products may be and remove the Products.

Now, wait a second, cowboy. You want to enter my premises without notice and search for and take back your stuff? Without going to court at least first, to establish your version of events is true? So no more "my home is my castle," or the old quaint US idea that there can be no unreasonable search and seizures. This isn't a government search; it's by a library on behalf of private copyright owners, and it's a Brave New World, where to get content at all, you are required to waive all your normal rights. And your dignity as a human being too. Can you imagine your little kids when they burst into your house and demand their copyrighted documents back, you deadbeat parents?

And deeper, what if you have no money? Like my grandmother when she was young? How do you access the world's knowledge now?

They tell us all this is necessary in the digital age. Things are different than they used to be:

The processes needed to deal with electronic materials are intrinsically the same as those needed for traditional print materials, but the solutions need to be different.

The Library has set up the Digital Object Management Programme (known as 'the DOM Programme') to develop the technical solution to the problems given to us in having such digital items (also known as 'objects') as part of the Library's collections.

They are, of course, aware of the need to consider longterm storage, although their solution is, to me, questionable. Can they, for just one issue, guarantee that Microsoft will be around in 50 years? That .Net and Biztalk2004 will still work? If not, then what?

Compare, please, the Smithsonian's far more reasonable terms:

Use of text, images and other content on this website are subject to the following terms and conditions:

CONTENT IS PROTECTED BY INTELLECTUAL PROPERTY LAWS

Text and image files, audio and video clips, and other content on this website is the property of the Smithsonian Institution and may be protected by copyright and other restrictions as well. Copyrights and other proprietary rights in the content on this website may also be owned by individuals and entities other than, and in addition to, the Smithsonian Institution. Smithsonian expressly prohibits the copying of any protected materials on this website, except for the purposes of fair use as defined in the copyright law, and as described below.

FAIR USE IS PERMITTED

Fair use of copyrighted material includes the use of protected materials for non-commercial educational purposes, such as teaching, scholarship, research, criticism, commentary, and news reporting. Unless otherwise noted, users who wish to download or print text and image files from this Web site for such uses may do so without the Smithsonian Institution’s express permission, provided that they comply with the following conditions:

1. The content may only be used for personal, educational or noncommercial purposes;
2. Users must cite the author and source of the content as they would material from any printed work;
3. The citation must include all copyright information and other information associated with the content and the URL for the Smithsonian Institution website;
4. None of the content may be altered or modified;
5. Users must comply with all other terms or restrictions which may be applicable to the individual file, image or text;

See the difference? The British Library fell in love with DRM and bought the idea that creativity only happens inside a tightly controlled, moated safe zone, with soldiers at the ready to keep it inside, and we -- the library patrons -- we're the bad guys in this picture. And the prices! Let's say I would like to get a copy of a patent or a legal document from "Articles Direct", their service if you aren't a regular customer. It will cost me £26.00 plus copyright fee for a patent up to 100 pages. If it's only a two page patent, it's still £26.00 plus copyright fee. A document sent to me by Secure Electronic Delivery is £16.00. Plus copyright fee. It's a dollar more if I want it by FAX. If I am in no rush, they can mail it to me for £7.95. Plus copyright fee. The world's knowledge... for a price. And one many, many individuals in this sad old world can't possibly afford.

Finally, the library says the website's content is also copyrighted, so naturally there are restrictions on what you can do with it:

The content of this website can be accessed, printed and downloaded in an unaltered form (unaltered including being stretched, compressed, coloured or altered in any way so as to distort content from its original proportions or format) with copyright acknowledged, on a temporary basis for personal study which is not for a direct or indirect commercial use and any non-commercial use. Any content printed or downloaded may not be sold, licensed, transferred, copied or reproduced in whole or in part in any manner or in or on any media to any person without the prior written consent of the British Library, including but not limited to:
* transmission by any method
* storage in any medium, system or program
* display in any form
* performance
* hire, lease, rental or loan

They seem to be offering to sue me for what I've done in this article. Except I'm still an American. I can use copyrighted content under fair use, which this is. But for how long? If the entire world goes DRM, you can kiss fair use goodbye. How would you like to live in the British Library's world forever?

I think the best way to get materials from the British Library would be by means of the Freedom of Information Act, and I'm only half joking:

The Freedom of Information Act 2000 received Royal Assent on 30 November 2000. It gives a general right of access to all types of recorded information held by public authorities and places obligations on public authorities to disclose information, subject to a range of exemptions. In common with other public bodies, the Library is required to implement the Act fully from January 2005.

Access rights came into force on 1 January 2005, enabling anyone to make a request for information, although the request must be in writing (letter, fax or email). The Act gives applicants two related rights:

* The right to be told whether the information exists
* The right to receive the information within 20 working days, where possible in the manner requested

In some cases, where information is exempt from disclosure, the Library is required to consider whether the public interest in maintaining the exemption outweighs the public interest in disclosure.

The materials are still under copyright, of course, but you don't have to sign away your firstborn. Most of the materials are free. Here's their copyright information on this method of obtaining materials from them:

Charges

Most of the information listed in the Publication Scheme is available free of charge, and available on the website or from the Library as detailed in the Scheme. Where charges do apply, this is stated in the Scheme. Where the Scheme indicates that the Library intends to make information available free of charge, we reserve the right to charge for copying, printing and/or postage.

Copyright and the Publication Scheme

Information available through the scheme is protected by copyright of The British Library Board unless otherwise indicated. The information contained in such copyright protected material may be used but not copied, distributed or published in any format or medium. The information must be reproduced accurately and not used in a misleading context. If you use any of the information available through the scheme, or distribute it to others or republish it, you must identify the source of the material and acknowledge its copyright status.

Brief extracts or copies of copyright material included in the schemes may normally be published or reproduced under the fair dealing provisions of the Copyright, Designs and Patents Act 1988 (sections 29 and 30) for non-commercial research purposes, private study, criticism, review or current news reporting, so long as the publication or reproduction is accompanied by a sufficient acknowledgement identifying the work and the author. Fair dealing for the purposes of current news reporting does not apply to photographs. Any uses not covered by fair dealing will normally require permission from The British Library Board or other copyright owners concerned.

You are not allowed to publish facsimile duplicates of any materials you have obtained from the publication scheme without written permission from The British Library. Please note that you may be required to pay a fee.

This page treats one more like a human. They tell you what the law is, and they inform you of what you can't do. There is a "fair dealing" provision, which allows you to use brief extracts or copies of copyrighted material for such things such as news reporting, review, and criticism, as well as private study and noncommercial research, just like in the US.

So, maybe they should inform their DRM about fair dealing? My question is: why don't the Library's terms and conditions match the Freedom of Information Act? Someone really needs to think about this conceptually.

I've been researching libraries and DRM for weeks. Why did I finally write about it? Because, as you can see from the story in News Picks, Expert Group to advise EU Commission on how to build the European Digital Library the British Library is one of the "experts" advising the EU Commission:

In today’s meeting, the group discussed the Commission's vision for the European Digital Library (see IP/06/253) and set up a framework for future discussions. The group also had a first exchange of views on copyright issues. In a recent online consultation, right-holders supported the adequacy of the present copyright rules and the need to fully respect and enforce them, while cultural institutions highlighted a number of problems in the present copyright framework that could potentially undermine efficient digitisation and digital preservation.

As I told you in March, Microsoft has already made a pitch to the EU Digital Libary for their future version of XML, and with it they suggest monetizing the world's knowledge:

However, besides a careful approach to technical issues, we have to find a way to make the digitization effort self-sustainable. We propose a strategy that is focussed on the content exploitation models. We recommend that content consumption scenarios strongly complement other factors, such as preservation, in driving the main aspects of the digitization process: selection of material, quality of the content scanning, metadata enhancement, delivery channel, and access services. This same principle is expected to boost the digitization of the non-English material as local economies and local needs present opportunities for exploitation of such data.

Most of the scenarios for exploiting digital content will require a clear value proposition. We propose to enhance digitized and archived content by context sensitive aggregation with the contemporary content. Essentially, the archived information would be used in association with the current and highly valued information that may be in the public domain (already in the digital form) or distributed by publishers.

One such scenario is educational material for schools. Augmentation of text books with the digitized content of historical documents provides a clear value that can be captured through the supplementary cost of educational material and re-invested into digitization. The key is a clear connection with the educational curriculum. At the national level, teaching history, language, geography, and similar subjects is primarily done in the native language and focussed on the national aspects of the shared history. They are particularly amenable to boosting digitization of the material in the native language. Furthermore, similar type of collaboration with newspapers, journals, etc., in a local language, is possible through augmentation with digital copies of newspapers from the past, for comparison, specific interest, or pleasure. Again, the augmented value of the publications can be captured through appropriate pricing and re-invested into further digitization.

DRM is part of the plan, and I encourage you to read the entire Microsoft document. It would make my grandmother roll over in her grave. Some of the librarians at the British Library are deeply troubled too about what DRM is doing to libraries. How will we access the materials if the DRM company goes out of business someday?

If they duplicate what they have done at the British Library, I think it's fair to say that it is the death of public libraries as we have known them, and the world's knowledge will be available only DRM'd and for a price.


P.S. DRM doesn't work.
It won't block any serious criminals.
All it does is annoy and degrade the honest
... and give monopolies a way to stay that way.


  View Printable Version


Groklaw © Copyright 2003-2013 Pamela Jones.
All trademarks and copyrights on this page are owned by their respective owners.
Comments are owned by the individual posters.

PJ's articles are licensed under a Creative Commons License. ( Details )