Book publishers love that libraries can act as free marketing venues, introducing readers to new authors and keeping them focused on books. But publishers don’t like it when libraries act as commons – that is, when they promote easy access and sharing of knowledge. A successful commons may modestly limit a publisher’s absolute copyright control – and even minor incursions on this authority must be stoutly resisted, publishers believe.
One of the more egregious such battles now underway is a lawsuit filed by Harvard Business School Publishing, John Wiley and the University of Chicago Press against the Institute for the Study of Coherence and Emergence. ISCE is a small, nonprofit membership group that “facilitates the conversation between academics and business people regarding social complexity theory, particularly the implications for the management of organizations.”
The focus of the publishers’ lawsuit is ISCE’s virtual library of 1,200 books. May ISCE self-digitize and lend its virtual books to its members on a one-usage-at-a-time basis, for private, educational, non-commercial purposes?
The publishers say no, and are seeking to establish their legal authority to shut down such unauthorized “reproduction, display and distribution” of the books. But ISCE counter-claims that the fair use and first-sale doctrines of copyright law give it the legal right to lend its virtual books. (Fair use is the legal doctrine of copyright law that allows excerpts to be shared noncommercially. The first-sale doctrine prohibits the seller from controlling what a consumer does with a book or DVD after it is purchased, such as renting it, lending it or giving it away.) ISCE claims, in addition, that libraries are entitled to special-use privileges under copyright law, which apply in this instance.
ISCE explains what's really going on here: “The Harvard B School folks and Wiley think that ALL digital access should be pay per use and that libraries have no rights. So much for the idea of academic research. The lawsuit is fundamentally about what rights academic libraries have to make use of the books which they have purchased.”
Michael Lissack, the founder and executive director of ISCE, once housed the library in his home. But when he moved to a smaller house that could not accommodate his books, he decided to scan and digitize the entire library, and then destroyed the original paper copies. The books are now “housed” on the servers of Amazon Web Services.
Besides saving space, another key reason for digitizing the book was to make them amenable to a search engine that Lissack had developed, which could recommend to users other relevant research literature based on an analysis of large blocs of text from a book or essay. The idea, as Lissack explained in ISCE’s response to the lawsuit, was “to make sense of large volumes of complex information that are not manageable by the common keyword searches (often filtered by popularity) – to find in large, but specialized libraries books with treatments of ideas similar or relevant to a detailed statement of a topic to be researched.” In effect, the search engine acts like a reference librarian, making suggestions of other, potentially germane books to read. (Now, there’s an innovation that the content owners are not offering!)
It’s not as if any Web user can stumble into the ISCE library and read the publishers’ books for free (as if that were such a scandal). ISCE serves only its members, and shares only books that it lawfully purchased. Access to the ISCE library requires a password. “To simulate a physical research library as closely as possible,” writes ISCE in a counter-claim lawsuit, “the full text of a book may be accessed by only one researcher at a time and only ‘checked out’ for the ‘reserve’ period of two hours (after which it is automatically checked back in).”
The publishers filed their lawsuit in federal court in June 2013 alleging that the ISCE library contains more than 50 volumes published by them, and that ISCE’s self-digitization and sharing of the books constitutes a copyright violation. Any time that an ISCE member views one of the library’s books on his browser, it amounts to an illegal “reproduction, display and distribution” of the book, according to the publishers.
It’s ironic that institutions that purport to help open academic inquiry and scholarship are so hostile to a nonprofit that is doing just that. Which interests should be privileged -- property rights intended to maximize sales revenue, or the open, efficient sharing of knowledge? It’s particularly shameful that the University of Chicago Press, a noncommercial, tax-exempt academic publisher, is participating in this lawsuit. Are they so focused on maximizing their copyright control that they are not willing to defend the fair use practices and library rights that lie at the heart of academic research?