Information Access and the 800-Pound Gorilla

Current technology offers unfettered access to good information and good scholarship, but standing in the way is the U.S. copyright law, argues Bryn Geffert.

February 20, 2017
 
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Last summer, the U.S. Senate easily confirmed Carla Hayden to became the first new librarian of Congress in almost three decades.

At her confirmation hearing last April, Hayden conversed fluently with admiring members of the Senate Committee on Rules and Administration. All enthused about the promise of the internet to make information universally available. All agreed on the need to digitize the Library of Congress’s holdings and place those holdings on the web. Senator John Boozman, a Republican from Arkansas, said it was time to get the Library of Congress “out to the hinterlands.” Hayden agreed.

In this era of fierce partisanship, the genial bipartisanship on display that day was remarkable, flowing naturally from the self-evident value of disseminating information as widely as possible.

Good education happens, and, indeed, democracy itself works, only when students and citizens enjoy unfettered access to good information and good scholarship. In practice this means that neither a homeschooled fifth-grader, nor my 15-year-old son, nor a high school student in rural Arkansas, nor a college student at a state university, nor a scholar in Niger, should be denied free and easy access to nearly all unclassified information held by the Library of Congress. Or, for that matter, from any major library.

Current technology makes this somewhat lofty vision eminently achievable.

But standing in the way is an 800-pound gorilla: U.S. copyright law.

The current copyright statute, passed in 1976 and revised in 1998, grants authors of books, articles, films and other creative work exclusive rights to their publications -- including the exclusive right to distribute their publications -- for the length of their earthly sojourn. Plus 70 years after they die. The vast bulk of material published in the U.S. after 1923 cannot be digitized and shared.

Hayden knows this. She sees the gorilla every day. But she ignored him during her confirmation hearing, thus placing herself in an awkward position. She could describe in the Senate hearing room the Library of Congress’s laudable decision to digitize the 1774-1804 papers of Alexander Hamilton, this past year’s unanticipated Broadway idol. But she could say nothing about most of the approximately 2,000 published works about Hamilton cataloged in the Library of Congress’s collection.

Might not a student/retiree/scholar/hipster interested in Hamilton’s papers be equally interested in John Chester Miller’s Alexander Hamilton: Portrait in Paradox (1959), James Thomas Flexner’s The Young Hamilton (1978) or Albert Furtwangler’s The Authority of Publius (1984)? The Library of Congress and my library own all three books, but, under current law, we may not digitize or distribute any of them.

Examples of disconnects between copyright law and the public interest are endless. Should the mother of a child with leukemia enjoy access only to medical books published more than 70 years ago? Should the father of an autistic child read only scientific literature published before 1923? (Hint: the serious study of autism began only in the 1940s).

The point, here, is obvious: Congress’s library and other libraries cannot distribute most of their literature to most people. Current copyright law undermines the Library of Congress’s mission, Carla Hayden’s ideals, the professed desires of senators and, of course, the public interest.

It was not always so.

The first copyright statute, enacted in 1790, allowed authors to retain copyright in their work for 14 years. And they could, if they desired, renew that copyright for an additional 14 years. Congress believed that a maximum period of 28 years offered the “limited” protections authorized by the U.S. Constitution to “promote the Progress of Science and useful Arts.”

Under the original statute, the Library of Congress, my library and any library in the world could digitize and disseminate without charge Miller’s, Flexner’s and Furtwangler’s studies of Hamilton to the homeschooled fifth-grader, to my 15-year old son, to the high school student in rural Arkansas, to the college student at a state university and to the scholar in Niger.

We have now, today, the technology to achieve the vision endorsed by our new (and possibly best) librarian of Congress -- a vision ostensibly shared by her admiring senatorial colleagues who, though they agree on little else, appear to agree on this.

What we lack and what we need is an old law -- an old law to serve new technology.

But first we need our new chief librarian to point at the gorilla, yell for Congress’s attention and beg the legislators who confirmed her to act in accord with the ideals they articulated last spring.

Bio

Bryn Geffert is the librarian of the college at Amherst College.

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