Darnton Makes the Case for DPLA at Columbia Law

“Robert Darnton, director of Harvard’s University Library, delivered the 25th annual Horace S. Manges Lecture at Columbia Law School’s Kernochan Center on April 2. Entitled Digitize, Democratize: Libraries and the Future of Books, Darnton’s case for the Digital Public Library of America (DPLA) made extended analogies between the current situation and the commercial monopolies that preceded the creation of copyright in early modern France and England, as well as to Britain’s enclosure movement. While Darnton was careful to accord respect to the ‘legitimate interest of the book industry’, he was not shy about criticizing what he sees as excessive commercialization. Said Darnton, ‘the cultural commons has been largely appropriated by business interests,’ and he called for finding ‘a just equilibrium.’ In particular he cited Google Books, which proposed to scan library’s holdings for free and then sell access to the content back to them, as well as the escalating cost of scientific journals – four times the rate of inflation, he said – and the efforts of publishers like Elsevier to prevent public access to taxpayer funded researcher via opposing NIH efforts and the Federal Research Public Access Act, and championing the now-defunct Research Works Act. Said Darnton, the lesson of the rejected Google Books settlement is that ‘it is possible to build a mass digital library and it should be built for the public good’ rather than as a private commercial enterprise. DPLA, of course, is such an enterprise, and plans to split off from Harvard to form its own non-profit. Of the challenges facing DPLA, Darnton characterized the legal issue of how to handle copyrighted works as the hardest problem, and called upon his audience of lawyers to help find resolutions. Among the possible solutions he mentioned are extended collective rights management organizations, as are in place in some Northern European countries; with an opt-out provision; invoking section 107 of the copyright act to use fair use as a defense, something which could be strengthened in the DPLA’s case by its non-for-profit mission; and authorial volunteerism. (He even suggested that digitization of a commercial printed text into an entry in an educational database might itself constitute a ‘transformative work’, an argument unlikely to be embraced by most intellectual property attorneys.) He also complimented Maria A. Pallante, the new Register of the U.S. Copyright Office, and raised hopes that she would revive the work of the Section 108 study group, which might offer another way forward. (The Copyright Office gave a similar shout out to the DPLA in October 2011 in its mass digitization report, as LJ reported.) Darnton’s personal preferred solution, not endorsed by the DPLA, would be a ‘moving wall.’ ‘I think the DPLA should steer clear of books currently on the marketplace,’ he said, waiting five to ten years, by which point most books are no longer making money, if they are still in print at all. The few exceptions could opt out. He also proposed paying ‘fair royalties’, at least to those few authors who make a living by writing...”