Open Access News

Robert Darnton, Google and the Future of Books, The New York Review of Books, February 12, 2009.  Darnton is the Director of the Harvard University Library.  At his direction, Harvard's is the first and largest library to refuse to participate in the Google settlement.  Excerpt:

How can we navigate through the information landscape that is only beginning to come into view? The question is more urgent than ever following the recent settlement between Google and the authors and publishers who were suing it for alleged breach of copyright....After lengthy negotiations, the plaintiffs and Google agreed on a settlement, which will have a profound effect on the way books reach readers for the foreseeable future. What will that future be?

No one knows, because the settlement is so complex that it is difficult to perceive the legal and economic contours in the new lay of the land. But those of us who are responsible for research libraries have a clear view of a common goal: we want to open up our collections and make them available to readers everywhere....

Despite its principles, the [18th century] Republic of Letters, as it actually operated, was a closed world, inaccessible to the underprivileged. Yet I want to invoke the Enlightenment in an argument for openness in general and for open access in particular.

[M]ost of us would subscribe to the principles inscribed in prominent places in our public libraries. "Free To All," it says above the main entrance to the Boston Public Library....

Our republic was founded on faith in the central principle of the eighteenth-century Republic of Letters: the diffusion of light....This faith is embodied in the United States Constitution. Article 1, Section 8, establishes copyright and patents "for limited times" only and subject to the higher purpose of promoting "the progress of science and useful arts." The Founding Fathers acknowledged authors' rights to a fair return on their intellectual labor, but they put public welfare before private profit.

How to calculate the relative importance of those two values? ...

When the Americans gathered to draft a constitution thirteen years later, they generally favored the view that had predominated in Britain. Twenty-eight years seemed long enough to protect the interests of authors and publishers. Beyond that limit, the interest of the public should prevail....

How long does copyright extend today? According to the Sonny Bono Copyright Term Extension Act of 1998 (also known as "the Mickey Mouse Protection Act," because Mickey was about to fall into the public domain), it lasts as long as the life of the author plus seventy years....As things stand now, for example, Sinclair Lewis's Babbitt, published in 1922, is in the public domain, whereas Lewis's Elmer Gantry, published in 1927, will not enter the public domain until 2022....

[W]e live in a world designed by Mickey Mouse, red in tooth and claw....

[T]he Journal of Comparative Neurology now costs $25,910 for a year's subscription; Tetrahedron costs $17,969 (or $39,739, if bundled with related publications as a Tetrahedron package); the average price of a chemistry journal is $3,490; and the ripple effects have damaged intellectual life throughout the world of learning. Owing to the skyrocketing cost of serials, libraries that used to spend 50 percent of their acquisitions budget on monographs now spend 25 percent or less. University presses, which depend on sales to libraries, cannot cover their costs by publishing monographs. And young scholars who depend on publishing to advance their careers are now in danger of perishing....

The eighteenth-century Republic of Letters had been transformed into a professional Republic of Learning, and it is now open to amateurs —amateurs in the best sense of the word, lovers of learning among the general citizenry. Openness is operating everywhere, thanks to "open access" repositories of digitized articles available free of charge, the Open Content Alliance, the Open Knowledge Commons, OpenCourseWare, the Internet Archive, and openly amateur enterprises like Wikipedia. The democratization of knowledge now seems to be at our fingertips. We can make the Enlightenment ideal come to life in reality.

At this point, you may suspect that I have swung from one American genre, the jeremiad, to another, utopian enthusiasm....

Libraries exist to promote a public good: "the encouragement of learning," learning "Free To All." Businesses exist in order to make money for their shareholders —and a good thing, too, for the public good depends on a profitable economy. Yet if we permit the commercialization of the content of our libraries, there is no getting around a fundamental contradiction. To digitize collections and sell the product in ways that fail to guarantee wide access would be to repeat the mistake that was made when publishers exploited the market for scholarly journals, but on a much greater scale, for it would turn the Internet into an instrument for privatizing knowledge that belongs in the public sphere. No invisible hand would intervene to correct the imbalance between the private and the public welfare. Only the public can do that, but who speaks for the public? Not the legislators of the Mickey Mouse Protection Act....

Libraries say, "Digitize we must." But not on any terms. We must do it in the interest of the public, and that means holding the digitizers responsible to the citizenry....

Don't get me wrong. I know that businesses must be responsible to shareholders. I believe that authors are entitled to payment for their creative labor and that publishers deserve to make money from the value they add to the texts supplied by authors....

But we, too, cannot sit on the sidelines, as if the market forces can be trusted to operate for the public good. We need to get engaged, to mix it up, and to win back the public's rightful domain. When I say "we," I mean we the people, we who created the Constitution and who should make the Enlightenment principles behind it inform the everyday realities of the information society. Yes, we must digitize. But more important, we must democratize. We must open access to our cultural heritage. How?  By rewriting the rules of the game, by subordinating private interests to the public good, and by taking inspiration from the early republic in order to create a Digital Republic of Learning....

An enterprise on such a scale [as the digital collection contemplated in the Google settlement] is bound to elicit reactions of the two kinds that I have been discussing: on the one hand, utopian enthusiasm; on the other, jeremiads about the danger of concentrating power to control access to information....

Google can make the Enlightenment dream come true.  But will it? The eighteenth-century philosophers saw monopoly as a main obstacle to the diffusion of knowledge —not merely monopolies in general...but specific monopolies such as the Stationers' Company in London and the booksellers' guild in Paris, which choked off free trade in books.

By spreading the cost in various ways —a rental based on the amount of use of a database or a budget line in the National Endowment for the Humanities or the Library of Congress— we could have provided authors and publishers with a legitimate income, while maintaining an open access repository or one in which access was based on reasonable fees. We could have created a National Digital Library—the twenty-first-century equivalent of the Library of Alexandria. It is too late now. Not only have we failed to realize that possibility, but, even worse, we are allowing a question of public policy —the control of access to information— to be determined by private lawsuit....

The district court judge will pronounce on the validity of the settlement, but that is primarily a matter of dividing profits, not of promoting the public interest....

If Google makes available, at a reasonable price, the combined holdings of all the major US libraries, who would not applaud? Would we not prefer a world in which this immense corpus of digitized books is accessible, even at a high price, to one in which it did not exist?  Perhaps, but the settlement creates a fundamental change in the digital world by consolidating power in the hands of one company....