scannin' by Laura Taylor (CC BY-NC-ND 2.0) https://flic.kr/p/F6XEN

scannin' by Laura Taylor (CC BY-NC-ND 2.0) https://flic.kr/p/F6XEN

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Yes We Scan: Why Concordia Should Not Shelve Its Book Scanner

The copyright mistake at Concordia – a poetry centre scanned several books and posted them on the Internet without permission – has attracted considerable attention in the press and social media. Kate Taylor wrote a Globe and Mail column placing much of the blame at the feet of fair dealing, while I responded with a post yesterday that noted that no one claimed that the posting of the full-text books was permissible and that Concordia was an ill-advised target for fair dealing criticism given that it has a copyright collective licence with Copibec that compensates for copying on campus.

While the focus of the Taylor column and my response was on fair dealing and collective licensing, the Taylor column also included several references to the use of a scanner to digitize books. In particular, it concludes by stating that “Ottawa needs to plug that education loophole good before somebody tries to drive a $10,000 book scanner right through it.”

The inclusion of education as a fair dealing purpose is clearly not a loophole – fair dealing is a user’s right and adding education as a purpose in 2012 only marginally expanded it – but the inference that scanning books is an activity to be stopped requires a response. As I wrote last year, Canada has unveiled a modest digitization goal that calls for the digitization of 90 per cent of all published heritage dating from before 1917 along with 50 per cent of all monographs published before 1940 within ten years. It also hopes to cover all scientific journals published by Canadian universities before 2000, selected sound recordings, and all historical maps. The Canadian targets pale by comparison with other countries. For example, the Netherlands plans to digitize 90 per cent of all books published in that country by 2018 along with many newspapers and magazines that pre-date 1940.

Digitization initiatives often raise legal fears, but the experience in other countries demonstrate that the legal challenges are frequently overstated. For example, U.S. courts have ruled that massive digitization programs such as those undertaken by Google qualify as fair use. The Google Book Search initiative rightly distinguishes between the act of digitization or scanning (a data mining and non-consumptive use of the work that qualifies as fair use) and the making available of those works to the public. This means that millions of books can be freely digitized without fear of copyright infringement, though full access to the text is limited to public domain works (where the copyright has expired) and licensed materials where the copyright owner has granted permission. Partial access (often referred to as snippets) may be granted consistent with fair use.

Canadian law features fair dealing rather than fair use, but a similar approach could be adopted. It goes without saying that all public domain works – which could reasonably be estimated to include anything published before 1940 – could be digitized and made immediately accessible in full text. This appears to be part of what Concordia had in mind with respect to its poetry digitization plans. In addition to the materials that are almost certainly in the public domain, educational institutions, archivists, and the government could launch a crowdsourcing initiative where Canadians help identify additional public domain works of authors who died more than 50 years ago. This would include many books published in the 1940s, ’50s, and ’60s.  Those works could also be digitized and made accessible in full text without the need for permission or further licensing payments. Such efforts should be welcomed by supporters of Canadian culture as a way to breath new life into long-forgotten Canadian works and as a means of raising new awareness of Canadian history.

The situation for in-copyright works is more complicated and requires separate legal analysis for digitization of the works and the manner in which they are made available. The first part – digitizing or scanning the works by educational or research institutions – likely qualifies as fair dealing as it meets the research purpose (and therefore the 2012 reforms to fair dealing have little impact on the issue) and the six-factor fair dealing analysis would likely treat the act of digitizing for full text search purposes as more fair. It may involve a large amount of copying, but the other factors – including alternatives and effect on the work – would tend toward fairness. Enabling full-text searching for Canadian books would increase their “discoverability” without negatively affecting their commercial value. Indeed, it would likely increase their value.

The more challenging legal issue, however, would involve the public availability of the text of scanned or digitized books. Much like the Google Book Search approach, fair dealing and/or de minimis would likely permit a snippet of the work be made available without the need for further permission. For full text, authors would be entitled to specify how, if at all, their works should be accessible. This could involve licensing arrangements or strict limits on the amount of the scanned text that is publicly available. The digitization would create new opportunities for publishers and authors, while opening the door to heightened interest in Canadian works.

In the Concordia case, full-text of poetry books were briefly made available without permission, which would not qualify as fair dealing. However, the act of digitizing works already purchased by Canadian libraries for the purposes of full-text search is consistent with current law and if combined with the availability of full-text of public domain works and snippets of other books (or full-text with permission), would provide an enormous boost to Canadian culture where discoverability has emerged as one of the biggest barriers to commercial and cultural success.

21 Comments

  1. The materials posted online by the poetry centre at Concordia were not in the public domain, or very few of them. Some were out of print and still under copyright, and some were very much in print – recent books. An out of print book is not a public domain book. Nor were the materials made available “briefly”. As I understand it the endeavour dates back at least a year and possibly two. No one has said how many copies were illegally downloaded.

    • Mr. Geist clearly stated “… no one claimed that the posting of the full-text books was permissible…” in the opening paragraph. The remainder of the article was not an absolution of the events at Concordia, but a rational explanation of the needs, benefits, and rights of properly conducted digitization.
      As for the mysterious amount of downloaded copies, there has already been a pledge to purchase 5 copies of each infringed book(see linked Globe article). IMHO, if that did not please each side, we would most likely be hearing more about it and the rumblings of further compensation or legal action.

      • Mr. Geist is also clearly and deliberately propagating two demonstrable falsehoods and one highly debatable interpretation of events, without considering the other interpretation and its ramifications. The falsehoods are that this was a “brief” incident – in my books, one or two years is not brief when it comes to copyright violation in the form of entire books posted online – and that only five illicit copies of each book circulated. The debatable claim is that all this was a “mistake.”

        I also doubt very much that the affected parties will conclude that costly legal action is a viable response to the situation.

  2. Leaving aside Michael Geist’s evident lack of concern for creators’ rights in copyright matters, let’s look at the claims for digitizing existing library collections from the perspective of his argument that this will improve accessibility. The concerns I outline below will also largely hold true for new work in mostly or exclusively digital form.

    First up: will the digitized documents be preserved in their original form, and will the originals remain readily accessible? Don’t assume that this will be the case. For a nightmarish account of the reckless digitizing carried out by a previous generation and up to the present day, see Nicholson Baker’s book “Double Fold: Libraries and the Assault on Paper” (Random House, 2001). It’s hair-raising.

    Because the very real risk exists is that digitizing will be a pretext for libraries to destroy or bury beyond reach original paper documents. Is that something we wish to happen?

    Second: are there possible issues around the future legibility of the digital files, the quality of the digitizing, etc.? I don’t know. Does anyone know? It would be nice if the Canada Research Chair who is so ardently promoting this option would research and report back to the public whether there are any concerns in this respect. As a public policy analyst working on the public dime, Michael Geist has a relentlessly one-sided approach to every issue, rather than informing the public as to the possible benefits and drawbacks involved in the various public policy options.

    More to come.

    • Third: in my view, massive digitizing, and the increasing availability of “content” in exclusively digital form, paradoxically poses huge issues around public accessibility.

      This became evident to me 15 years ago when I wandered into a Canadian university library with which I am not affiliated in any way and asked a librarian for directions to their multi-volume Oxford English Dictionary and Encyclopedia Britannica. I was directed to a computer terminal (with in addition a line-up of students waiting to use it) where, after logging in with my university library number, I could consult the online versions of these publications to which the university subscribed. When asked if the library had bound copies available, I was told that these had been discarded when the online subscriptions were purchased. I left empty-handed.

      Now, most Canadian university libraries don’t mind unobtrusive members of the public wandering in and consulting books in the stacks or reading the periodicals. Few have any kind of controlled access (swiping a card to pass through turnstiles, etc.).

      However, if you wish to consult any document for which the library has purchased digital access – Michael Geist vaunts the rise in library expenditure on access to digital content – you need sign-in privileges. The licences agreed to by the libraries for this material exclude public use. This includes, for example, alumni with library privileges, which in many cases are purchased annually. The licences exclude all but faculty and current students.

      It is also true that in many places – think of town in Ontario and Quebec like Peterborough, St. Catharines, Guelph, Sudbury, Sherbrooke, Chicoutimi – the local university library is far superior to the municipal library serving local residents. Well, this is also true of Kingston, London, even Toronto and Montreal, but there the disparity in quality is a little less acute. If a member of the public wishes to consult a scientific journal – concerning a medical problem, for example, for which they have found a reference online, or for any other topic of interest – they will no longer have access to this at the local university library and are unlikely to find it in a municipal library.

      This, to me, should be a huge concern to people who study this question, as it has enormous implications for civil society and for citizens who live and work outside the academy. Yet no one talks about it.

      The fact is that in this case digitizing will lead to a paradoxical and completely undersireable locking up of content, inaccessible to the public even on the innocuous level of wandering into a library and taking a volume off the shelf.

      • University libraries in particular will be completely unrecognizable in 10 or 15 years. Several in Canada have plans to convert their stacks into below-ground storage and convert the space into massive open-concept work stations, like a call centre, with computer terminals from which students will access digitized content. This has already taken place at several major public university libraries in the Western world, in Australia for example. Before proselytizing in favour of wholseale digitizing, perhaps our Canada Research Chair could take a trip to Australia, inspect the facilities, and speak to students, faculty, librarians – and residents in the community – to see how it is working out.

        One will work at such stations after logging in with a student or faculty number and password, which residents of the community will not have. This will certainly be true for new material purchased digitally – both books and periodicals – but it most likely will also be true for all digital (i.e. newly digitized) content. From a university administrator’s point of view, it will be easier simply to set up the terminals to require log-in to work on them, thereby doing away with the need to shield certain content from certain users once someone is seated at the terminal.

        But maybe I’m wrong. We could ask someone who might get a straight answer to ask the university administrators in Canada currently planning such a conversion of their space. Maybe there’s a Canada Research Chair who could look into this instead of writing blog posts about the wonders of digitizing in the Brave New World descending upon us.

        • Terry Donovan says:

          Any Postsecondary institute I have been to will issue guest accounts. Once you are logged on on-site you will have access to their digital resources.

          • Not for licensed content like current scientific journals.

          • Most university and college libraries will have negotiated so-called “walk-in” privileges, allowing anyone physically visiting the library to access electronic resources, including current scientific journals.
            The process can be convoluted, though. At UofT’s Robart Library, for example, there is a special terminal that will issue temporary credentials to visitors. When in doubt, ask a librarian.

          • If they do they are usually violating the terms of their licence. My alumni privileges specifically preclude access to such materials.

          • The convoluted process you describe suggests I am right and the librarians are keeping things discreet and hard to figure out. And, if I am right, not only does one want to base one’s policy views and decisions on charitable librarians bending the rules and publishers being unaware or looking the other way, but also, if I am wrong, the licences and access policies could change any time.

            And here’s something curious. Once everything goes digital, for a multitude of reasons but urged on for reasons of accessibility, and once bound books and journals are discarded or removed from view, this supposedly intrinsically more accessible delivery technology has within it an intrinsically greater ability to lock down its content. All it takes is a change to a library licence or a change of policy on the part of a library administrator. And that content is removed from public view.

          • mistake:

            not only does one NOT want to base one’s policy views and decisions

    • Devil's Advocate says:

      “More to come.”

      As if we don’t hear enough BS from “IP holders”, copyright collectives and copyright maximalists already.

      • Do you have room for your other foot in your mouth, or do you need to digest the first one first?

        • Devil's Advocate says:

          Nice retort, George, if you’re 10 years old.

          FYI, I was calling “BS” because, judging by the way you’re going on, you obviously live in some parallel world where natural rights are some parasite that copyright needs to be protected from.

          Like a true copyright maximalist, you rush to defend copyright at every turn, whenever it’s “threatened” by radical concepts like Fair Use.

          In your eyes, IP holders are supremely entitled to extract whatever they want from content, in as many ways as they see fit. There’s never enough compensation being paid, and everyone’s “stealing”.

          To you, copyright is the “unalienable”, and natural rights are the abomination. You prove this with every statement of entitlement you make. You’re obviously someone who benefits from more tyrannical IP rights.

          • And I was pointing out that my comments had nothing to do with what you assumed they were about. You’re still singing the same tune, so I guess you had room for the second foot after all. I was going to add to my initial comment that I found your comment something a ten-year-old would write, but decided that would be childish. Congratulations.

            We don’t have anything known as “fair use” in Canada, by the way. And people like you have never ever managed to explain to me a few simple things: why they survived paying a few pennies a page for course materials in university but why that had to change; why a professor should be paid handsomely to teach my work but I should be condemned to earn a pittance producing it; why the mass copying, distribution and sale of my work by coursepack companies and universities does not constitute distribution and sale; and why copyright clearance collectives are the target of so much antipathy by people like you and Michael Geist for the sin of distributing a few pennies to people who produce educational content.

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  7. “More to come.”

    As if we don’t hear enough BS from “IP holders”, copyright collectives and copyright maximalists already.

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