The Public Display of Digital Library Collections

• Publication year: 2012

NORTH CAROLINA JOURNAL OF LAW & TECHNOLOGY VOLUME 14, ISSUE 1: FALL 2012

THE PUBLIC DISPLAY OF DIGITAL LIBRARY COLLECTIONS

David R. Hansen*

This Article evaluates the scope of the public display right in the context of digital library collections, and suggests an interpretation of the right that tries to make sense of the practical concerns that its drafters expressed when creating it. In short, the Article focuses on the sometimes-forgotten but important fact that the unauthorized display of copyrighted works is only an infringement of the copyright owner’s exclusive right if the work is displayed to “the public.” The Copyright Act nowhere defines the term “the public,” but viewed in light of its legislative history and interpretive guidance from the courts, this Article argues that the “public” part of “public display” can be read as meaning “the public market for copies” of the work. When a display does not impact the traditional public market for copies of the work—i.e., when one exploits copies at a level of use consistent with traditional uses like library lending, for example—there is no public display and therefore no infringement of the public display right.

1. INTRODUCTION

   Digital copies of millions of copyrighted books lie virtually untouched somewhere on Google’s servers.1 A related collection of under-exploited content rests in the digital collection of the HathiTrust.2 Similarly, vast stores of cultural and scientific

   
   

   * Digital Library Fellow, U.C. Berkeley School of Law.

   1. See Joab Jackson, Google: 129 Million Different Books Have Been Published, PCWORLD (Aug. 6, 2010, 1:20 PM), http://www.pcworld.com/article

      /202803/google_129_million_different_books_have_been_published.html (“As

      of June, the company has scanned 12 million books.”).

   2. See Statistics Information, HATHITRUST, http://www.hathitrust.org/statistics

      _info (last visited Dec. 5, 2011) (listing 9.8 million currently digitized volumes, but only 2.6 million public domain works that are currently available for full

      
      

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      content—both print and born digital materials—remain effectively unread because readers cannot view them online, outside of the libraries and archives that hold them. Many have asked why this vast store of cultural material, which can be freely checked out in physical formats from many libraries around the world, must remain inaccessible in the digital form. This Article seeks to address this digital access incongruity by explaining how copyright law has facilitated limited library lending in the past and how it may continue to do so in the future, at least where the application of the public display right is at issue.

      This Article argues that, so far as the public display right is concerned, unauthorized but limited display of digital copies of copyrighted works is not an infringement of the copyright owner’s exclusive rights because such a display is not to the “public.” Viewed in light of the legislative history and interpretive guidance from the courts, this Article argues that the “public” part of “public display” can be read as meaning “the public market for copies” of the work. When a display does not impact the traditional market for copies of the work—i.e., when one exploits copies at a level of use consistent with traditional uses like library lending, for example—there is no public display and therefore no infringement.

      It is important to state from the beginning that this construction of the public display right does not overcome all of the hurdles that impede digital lending. While understanding the public display right is important for addressing the access puzzle, it is only one part. Other rights, such as reproduction and distribution, stand as more immediate hurdles to full digital library access. Nevertheless, public display remains as a right of importance to future applications and one that, this Article argues, can be entirely consistent with pre-digital uses.

      Why are so many collections of works largely unavailable for online viewing? The short answer is that many of these works are not available online because their owners, when they can be

      
      

      
      

      viewing). Both the Google and HathiTrust collections grant limited access for uses such as text-mining, search, and snippet views. Id.

      
      

      found,3 have not authorized online viewing, and because those who wish to make them available (namely, digital libraries) feel that they are not permitted to do so because copyright law restricts such unauthorized access.4 But the law does not grant blanket control to

      
      

   3. Many works in these collections are thought to be “orphan works” (i.e., works whose owners cannot be located), which are problematic because even if users seek permission from owners, none can be obtained. Maria A. Pallante, Orphan Works and Mass Digitization: Obstacles and Opportunities, 27 BERKELEY TECH. L.J. (forthcoming 2012); see JOHN P. WILKIN, COUNCIL ON LIBRARY AND INFO. RES., BIBLIOGRAPHIC INDETERMINACY AND THE SCALE OF PROBLEMS AND OPPORTUNITIES OF “RIGHTS” IN DIGITAL COLLECTION BUILDING

      (2011), available at http://www.clir.org/pubs/ruminations/01wilkin/wilkin.html

      /wilkin.pdf (estimating that up to fifty percent of the in-copyright holdings of the HathiTrust should be considered orphan works); see generally DAVID R. HANSEN, BERKLEY DIGITAL LIBRARY COPYRIGHT PROJECT, WHITE PAPER NO. 2, ORPHAN WORKS: MAPPING THE POSSIBLE SOLUTION SPACES (2012), available

      at http://ssrn.com/abstract=2019121 (reviewing the most recent proposals to address the orphan works problem).

   4. This rather blunt formulation of the problem has a reciprocally (and dangerously) blunt solution: Simply convert unauthorized access into authorized access. This happens regularly; users (and the libraries and archives

      that act on their behalf) seek out and pay for licenses that permit online use. For

      large scale access, research libraries do so by expending massive amounts on “big deal” licensing packages. But even on a large scale, licensing for digital access is not a complete solution because it ignores the situation where licensors cannot be found, are difficult to negotiate with, or may not understand or even respond to the request for use. This problem is broadly considered to cover so- called “orphan works” whose owners cannot be located, but also other works that are similarly difficult to license. See generally DAVID R. HANSEN, BERKLEY DIGITAL LIBRARY COPYRIGHT PROJECT, WHITE PAPER NO. 1, ORPHAN

      WORKS: DEFINITIONAL ISSUES (2011), available at http://ssrn.com/abstract=197 4614.

      Furthermore, while publishers of the core collection of library holdings are sometimes willing and able to license access to their works, libraries and archives collect and preserve many unique—and for preservation purposes, arguably more important—sets of materials whose copyrights are held by less sophisticated parties. Finally, by licensing, libraries also abdicate a central part of their charge—to curate and preserve the cultural and scientific record. When

      a library licenses for mere access (but not ownership) of a work, the burden of

      preservation shifts from the holding library to commercial publishers whose incentive to preserve may only last as long as the work retains commercial viability. Without owning a copy of the work at issue, a library or archive cannot ensure complete preservation of that item for the future.

      
      

      copyright owners. This has long been a feature of the Copyright Act’s structure of rights and limitations:

      The Copyright Act does not give a copyright holder control over all uses of his copyrighted work. Instead . . . the Act enumerates several “rights” that are made “exclusive” to the holder of the copyright. If a person, without authorization from the copyright holder, puts a copyrighted work to a use within the scope of one of these “exclusive rights,” he infringes the copyright. If he puts the work to a use not enumerated . . . he does not infringe.5

      While it is true that the exclusive rights are broad, they are not boundless. So, the more complete answer is that access to these works should be restricted only if access runs afoul of one of the six exclusive rights circumscribed in section 106 of the 1976 Copyright Act6 (“Copyright Act” or “Act”) or the use does not fall within one of the several limitations on those rights as codified in sections 107–122 of the Act.7

      This is a basic point, but one worth making when considering the ways in which digital collections of copyrighted works might be made viewable online. It is through these specific exclusive rights and the yet more specific limitations on those rights that Congress created a “balance between the artist’s right to control the work during the term of the copyright protection and the public’s need for access to creative works.”8 The specific rights and limitations underlying this balance also enable the core economic fiction that copyright relies upon: the making of inherently non-rivalrous intellectual goods into rivalrous ones through the grant of a “limited monopoly”9 so that authors may obtain a return on their creative investment in the marketplace.10

      
      

   5. Fortnightly Corp. v. United Artists Television, Inc., 392 U.S. 390, 393–95 (1968); see also Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 447 (1984) (“Even unauthorized uses of a copyrighted work are not necessarily infringing. An unlicensed use of the copyright is not an infringement unless it conflicts with one of the specific exclusive rights conferred by the copyright statute.”).

   6 17 U.S.C. § 106 (2006).

   7 Id. §§ 107–122.

   8 Stewart v. Abend, 495 U.S. 207, 228 (1990).

   1. Sony Corp., 464 U.S. at 429; see also James Boyle, The Second Enclosure Movement and the Construction of the Public Domain, 66 LAW & CONTEMP.

      
      

      It is also through these specific rights and exceptions that digital collections have, in some ways, been left out in the cold. In the digital context, a familiar set of exclusive rights has continued to meet the interests of rightsholders by maintaining the exclusivity of their works.11 But

      ...