Why Libraries Can’t Go Digital

Library trustee Robert Darnton has an article in the upcoming New York Review of Books promoting the planned renovation to the New York Public Library’s main branch.  Focusing on the NYPL’s financial problems, it makes a strong argument in favor of consolidating services in the 54th Street building – though Darnton soft-pedals the movement of books off site: moving 1.5 million of 3 million books does not mean that “most” volumes will stay in the building.

What caught my eye was Darnton’s aside that, despite the promises of the information age, most of the books the library needs to acquire will still be available only in hard-copy for the foreseeable future.  I had almost exactly this conversation yesterday, so it’s ego-stroking to see the same claim in the NYRB.

The reasoning behind it is simple.  No matter what improvements are made to the digital display of text – and between new file formats, e-readers, tablets, and the plummeting cost of storage and transmission there’s not much barrier left to going digital – the law means that libraries have a hard time leaving physical objects behind.

It all comes down to the fact that most of what libraries do is possible because it is covered by the first sale doctrine in North America and the doctrine of exhaustion in the EU and international IP law.  Both principles say that once a rights-holder (i.e. author or publisher) has sold you a physical copy of their work you can do with it as you like.  You can loan it to someone, mail it across the country to another library, or split its spine and re-bind it.  None of those rights can be presumed with digital materials, where there is no first sale doctrine and most products are sold under licenses that restrict their use.  Many publishers refuse to sell e-books to libraries; others license them so that they “self-destruct” after a specified number of loans.  None permit the “loan” of an e-book to another library elsewhere.  How could they, since sending information electronically always involves copying the copyrighted material?  Today, academic journals are licensed mostly in expensive bundles that don’t even offer permanent access to the materials being “bought” (this extortionate pricing was at the root of the recent boycott of Elsevier).

Where the publisher makes no specific restrictions on use, like with the millions of indie books being sold as .pdfs , a library can’t loan the content at all without exposing itself to a possible lawsuit for copyright infringement – there’s no way of guaranteeing that copying won’t occur.  Anyone who doubts the restrictions on libraries in a digital age should look at the Author’s Guild’s lawsuit against library consortium HathiTrust and its claims of what constitutes infringing activity – all digital backups for preservation purposes where the physical object is not in immediate danger of disintegration, for example.

Is any of this going to change?  Some expansion of fair use/fair dealing is possible, even likely, but grander changes would require an almost inconceivable amount of political will.  Unless libraries find themselves with the billions of dollars necessary to settle the potential class action lawsuit, as Google has, they are likely to stick with physical objects not by choice but by legal necessity.  One hopes that those who believe that “everything is available on the internet” will notice this before their needs outstrip their reach, and they wonder why their library doesn’t have the digital-native content that they need.

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