LIBR 287-06

The Open Movement and Libraries

Professor Ellyssa Kroski


The Library and the Bazaar: Open Content and Libraries



"Libraries are creatures of the historical and statutory balance in copyright law."

 (Henderson, C. 2008)



Libraries have traditionally been the gatekeepers for information seekers.  While the ALA seeks to provide information for all-- to level the playing field-- our environment has increasingly been doing that for us.  The advent of the internet and the information age as seen libraries playing catch-up to the methods of information distribution the internet provides.  Anyone with a computer and an internet connection can access a wealth of knowledge that once may have been the purview of very few.  Yet there are still obstacles to be navigated for both patrons and libraries.


Copyright, a series of limited rights intended to stimulate creativity and ensure that a work's creator gets his or her fair share of the profits resulting from the copying of it, is one such obstacle.  Perhaps it's wrong to call copyright an "obstacle" per se, since the point of copyright is to provide the creator leverage with which to make money or in other ways use the work for their own gain.  However, the new popularity of new media and the ease with which information is transferred from one person to another has given rise to new models of information rights.  Some models, like the Creative Commons, have provided more freedoms for creators and users, while others, like Google and Microsoft’s systems have provided easier access for users, but restrictions on the use and copying of the works.


This essay will consider new copyright models in libraries, and how libraries can and should modify their own systems to promote and provide access to open content.    We will focus on the reasoning behind supporting new models and methods of distribution, especially with regards to open licenses like Creative Commons, as well as the obstacles inherent in distributing open content.  Finally we will examine some content distribution systems that work closely with libraries, and what effect the collaboration has had for both sides. 


In any topic of “open content”, we must first explain exactly what we mean.  Traditional copyright is conferred upon creation of a work that is “fixed in a tangible medium”(Boynton, 2005).  No action is needed on the part of the creator, they automatically are granted all rights.  These rights are supposed to provide the creator with a modicum of control over their work and monetary control so as to create incentive to create more.  However, the rights are also strictly controlled vie narrow definitions of the law, so that even uses that may seem benign are forbidden without explicit copyright holder approval.


With the advent of the internet, new ways to circumvent intellectual property laws came into vogue.  While digital piracy is, of course, illegal, the transmission of intellectual property and information so easily to all corners of the globe gave rise to new formations of information access, and new ideas about how information could be provided to users.  While the methods of sharing information have multiplied due to the global reach of the internet, American laws have become more restrictive.


Open Content licenses, on the other hand, are the driving force towards making it easier to use and replicate creative work.  Laurence Lessig’s brainchild, Creative Commons has popularized the idea of “some rights reserved.  While there are a number of open licenses, such as the GNU Free Documentation License, the Open Content License and Creative Commons, CC is the best known, and thus the best open content license to illustrate the use of open content in libraries.  Also known as “copyleft”, the open licenses are pioneering the concept of “some rights reserved”.  Creative Commons, for instance offers a number of different licenses at varying levels of restriction, from “Attribution”, which allows for redistribution, remixing and display so long as due credit is given to the original creator, “Non-Commercial” which allows for display, redistribution and remixing as long as no profit is made from the work, as well as several other levels, all of which are as simple to understand as any legally-binding license can be.


There are other sources of open content because, while Creative Commons, et al, allow an individual to opt-in to a license, other groups, like the Open Content Alliance and Open Education Commons, aim to create clearinghouses that allow users to redistribute and gain access to material freely.  To this end, these two, along with other open content distribution sites work with libraries to find and promote content rather than license it.


When we consider the way in which copyright and its newer structures affect libraries we also must examine how libraries themselves view copyright.  The ALA asserts that the duty of the library is to balance the rights of the user to have access to information with the rights of the copyright holder to gain some sort of return on his or her creation.  Libraries, as they usually are structured straddle the line between strict copyright—they pay for and own a copy of the media, or they pay for rights to access digital information—and a commons learning environment—they lend out the media and anyone with a library card can usually access their digital information.  "Libraries, after all, as a shared resource of a specific community, with information freely available for use by any member of that community, are the model of an (only slightly different) information commons," Lee suggested in 2003, and by viewing creative and academic work as communal property, libraries have always struggled to incorporate the concepts of communal information and freedom of information with the existing laws governing what may or may not be done with the information provided.


When considering the meaning of new methods of licensing, therefore, Carol Henderson, in the ALA’s statement of copyright and libraries, asserted that “What librarians seek as copyright law and related rules are being reshaped for the digital age is to maintain for users, and for libraries and educational institutions acting on their behalf, their rights to at least the same extent as they have enjoyed them in the analog environment.” (Henderson, 2008)  This means that while users enjoy the freedoms of some new licenses, and other systems restrict the rights of both institutions and users to copy and replicate the information while making content easier to access, libraries must always take care to weight the needs of the institution, the needs of the user and the needs of the copyright holder.  The institution, of course, wants to preserve and retain the information so as to have the broadest collection available as possible, as well as the freedom to loan out media for a particular duration to users. Users need the freedom to use information as they see fit—as the ALA’s “Freedom to Read” statement says, “The freedom to read is essential to our democracy.” (ALA, 2004).  Freedom and diversity of information is paramount in terms of the library protection of user rights.  Therefore, it is under these constraints that libraries must look at open content.  The open content works must provide free access to information to the users if not to the library itself, must provide high quality, diverse content that is easy to find and easy to use.  At the same time, it must balance the users' needs with the copyright holders' desires.


Because copyleft reserves some rights for the copyright holder, it behooves the library to do some research into the types of open licenses available, since not all of them will be the same.  This is, in fact, one of the things that does recommend the traditional model: it may be part of a "permission culture" wherein it's necessary to ask permission for every use, but as a general rule a library knows that it can't use much, if any of a work without permission.


Open content, however, is freely available in a time where the rising costs of scholarly journals can eat into a library's budget.  There is often no cost besides the library's own cost in maintaining a database of digital articles, monographs and other content, the upkeep of which is relatively low compared to the initial costs of traditionally copyrighted scholarly journals and books. (Johnson, 2008)  Similarly, since much open content is self-archived, it can be accessed without the library itself having to worry about the cost of upkeep aside from making sure the references in their database are correct.  However, many libraries feel it is part of their duty to not just provide access to information, but also to preserve it. In fact, though, Henderson notes "Librarians also recognize that a key societal function of libraries -- the archival function -- is at risk because electronic information is so seldom actually available for purchase and permanent retention or preservation." Since all open content licenses provide for redistribution and preservation in other archives so long as all attribution remains correct, the worry that libraries cannot purchase and permanently retain digital information is, if not needless, then at lest less pressing.  Open content is available for library archiving as needed.  In fact a library that wanted to create their own repository of open content works could create a depository that was specifically designed to appeal to the demographics of their own audience, made up of open content works that may not have been brought together in the same collection before.


Library ideals are more often present through the ideas of open content as well.  Korn and Oppenheim describe Creative Commons philosophy as being a "free and open exchange of digital content and [creating] a middle way between "...the extremes of copyright-control, and the uncontrolled exploitation, of intellectual property." The licence [sic] was inspired by the open source movement and follows the principles enshrined within copyleft which encourage the free distribution of works and any derivatives made of it."  Compare these beliefs with the free distribution of information inherent in section seven of the ALA's Freedom to Read, where it is declared that:

The freedom to read is of little consequence when the reader cannot obtain matter fit for that reader's purpose. What is needed is not only the absence of restraint, but the positive provision of opportunity for the people to read the best that has been thought and said. Books are the major channel by which the intellectual inheritance is handed down, and the principal means of its testing and growth. The defense of the freedom to read requires of all publishers and librarians the utmost of their faculties, and deserves of all Americans the fullest of their support.

While the ALA does not mention freedom of distribution or, indeed copyright at all, the ideals of providing all the information a patron has need of, while at the same time not exploiting intellectual property is clearly apparent.


Because libraries already consider information to be a common good, or what Ciffolilli terms "properties of non–rivalry, non–excludability," meaning "the amount of good available for consumption does not vary with the number of consumers drawing upon its stock ... [and] given the low marginal cost of reproduction and distribution of a public good" (Ciffolilli, 2004) it's hard, if not impossible, to charge individuals for use.  Even if the freedom of information wasn't part of the library mission, the digitization makes information harder to both archive and keep proprietary.  In fact, using open content allows libraries to circumvent efforts to keep information rare without stepping over copyright lines.  Open content does not concern itself with trying to keep information scarce, nor, usually, with putting a price on information.  Although it's not unheard of for open content information to be sold in alternate forms, digital information under open licenses typically allows for entirely free distribution.


The Association of Research Libraries asserted also that "Access to copyrighted materials inspires creativity and facilitates the development of new knowledge." (Office of Scholarly Information, 2004)  There are a number of ways in which open content supports the creation of new information or creative works. The ARL suggests that scientific knowledge is necessarily based on other scientific work, as is true in other fields.  A more solid example of creativity building on open content, is that Flickr, a web-based image-sharing gallery has an entire section of Creative Commons licensed photography and artwork that can be used with attribution in art projects of any kind in public or school libraries.  Creative Commons, especially under licenses that allow for derivatives encourage users to redistribute and redefine information, in a way that libraries have always encouraged.


Redistribution, redefinition, and remixing are parts of many open content licenses, however, unfortunately, the exact definition of open content is not exact over different definitions.  Some open content calls for  "free, immediate, permanent access to refereed-article full-texts online" (Harnad, 2003), without any sort of provision made for reuse or redistribution.  Knowing whether or not information is allowed to be used and reprinted in other places or in other ways could be the difference between a library erring on the side of dis-use for fear of stepping on the creator's toes.  An article on an open content site that makes no allowance for redistribution might close off creative re-use of the information by a library or patron. 


Because of the variations along the spectrum of open licensing, library staff has to be patient and careful about archiving and reusing open content works.  Korn and Oppenheim offer a strong list of reasons why libraries, especially academic ones, should be careful of the Creative Commons licenses, including issues with ownership, wherein an institution that owns the work may not want its material being made available for redistribution by the creator, lack of provisions for user accountability, the fact that CC provides only global licenses, which may cause problems if academic or library institution is going to be or has already been licensed in other areas of the world, nor is it clear whether Creative Commons licenses will be upheld in all parts of the world.  Also, restricting open content to patrons using "Technical Protection Measures" would be incompatible with open content licenses in general and Creative Commons in particular.


Similarly, several licenses offer what, in CC is known as a "share-alike" model. In the share-alike license, the work allows derivatives, so long as the content is licensed under the exact same license.  The problem, which may not worry library staff unduly except when it comes to assisting patrons by providing them with open content, is that licenses differ across and within licensing organizations.  A Creative Commons article under an "Attribution-ShareAlike" license cannot be reworked to include information from a Creative Commons article under an "Attribution-Non-Commercial-ShareAlike" license, for the simple reason that each article requires the remix to be offered under the exact same license as the parent, where the two parent articles are under different licenses.  Patrons and library staff will have the same problem if trying to handle multiple types of open content for different sources.  This might seem like a rare problem, but if a user is in need of particular information and several articles are under different licenses, it should be the library's duty in some way to make the copyright information clear either in the database or while providing the information to the patron.  It is absolutely imperative that library staff understand the basics of how to tell which rights are being reserved and be able to communicate that to the patron, in whatever way they need.


One of the best ways to handle the conflicting licenses is to work with an organization that provides open content and thus can work out one or two non-conflicting licenses.  There are a number of them: the Scholarly Publishing and Academic Resources Coalition, which is a coalition of academic research libraries and universities and which supports open content repositories, the Public Library of Science's journals, the Open Content Alliance, which brings together libraries of all stripes to digitize and make available public domain content on "a truly open, non-profit and non-exclusive basis." (von Holstein, 2008)


The Open Content Alliance, which works in tandem with academic and private libraries, as well as media groups like the Internet Archive, brings together content from all over the web.  Their stated goal is to "build a permanent archive of multilingual digitized text and multimedia material.”  To do so they have formed coalitions with libraries, most of whom donate out-of-copyright materials from their collections for digitizing in an easily searchable database at the Internet Archive.  While the OCA does not require content to be public domain or open content before it digitizes works, traditionally copyrighted works must come with legal permission from the copyright holder.  However, despite a commitment to respecting the content owners, all participants (which includes content owners who allow their work to be submitted) must agree to the founding principles of the Alliance, the first of which is “The OCA will encourage the greatest possible degree of access to and reuse of collections in the archive, while respecting the rights of content owners and contributors.”(emphasis mine)  While the second principle gives contributors control over the actual terms of agreement, the OCA streamlines process by both calling for contributors to provide for as open access to their work as possible as well as creating content licenses for their archive that will not conflict with each other.


For the large libraries and library consortiums that make up the bulk of the OCA’s major contributors it’s interesting to see what services the alliance provides.  Bernard Margolic, Director of the Boston Public Library offered that “[they] are, in the most basic and important meaning of the word, “enriching” the world. As [they] open these books we give opportunity for their use in many new and expanding ways for new and expanding audiences. [They] are doing what libraries as supposed to do.”  The OCA doesn’t provide services to the libraries beside that of creating a coalition of libraries and other content providers, and creating an open repository that at least mostly allows for reproduction and reuse of works.  This is direct opposition to repositories such as the one being put together by Google (of which Stanford takes part), which digitizes all works, but only allows them to be used via proprietary software and under restricted circumstances.  To the OCA contributors, while Google has a wider audience, it is better to provide as free access as possible, in order to, as mentioned earlier in the paper, support the creation of new works, via ease of use and freedom of information.  While the OCA does not directly develop and maintain the archive and repository, they organize and make it possible for libraries to access and submit content, and promote content that they may not be able to physically maintain in their own collections.


Although the OERCommons is affiliated with fewer libraries, as a clearinghouse for open educational material, it’s a useful open content resource even for the libraries not feeding into it.  OERCommons bills itself as a “comprehensive open learning network where teachers and professors (from pre-K to graduate school) can access their colleagues’ course materials, share their own, and collaborate on affecting today’s classrooms.”  Unlike OCA, which mainly concerns itself with already collected works, and mainly works in the public domain, OERCommons is a clearinghouse for new and recent work, submitted both by partner institutions and individual donors.  The difference is apparent methods of participation—while OCA requests that prospective participants email them to discuss rights and the pragmatic aspects of digitization, OERCommons has a streamlined sign-up to make the process of contributing easier.  OERCommons demonstrates a different method of content collection and distribution.  Although libraries do collect some of the content, and Universities more, OERCommons’s aims are “to expand opportunities for those who use open educational resources to develop and submit high-quality content for others to use and localize” along with their aims to create an access point for students, educators and laypeople to explore and evaluate open educational content.  Because of this emphasis on personal ownership, most of the material on OERCommons is licensed under a Creative Commons “Attribution-NonCommerical-ShareAlike”.  While some of the problems with using Creative Commons were discussed before, it might be noted again here that some problems could arise from libraries, especially academic ones, providing patron content.  There are no provisions to allow users or partner libraries to track what resources are being used, nor is there a provision in case an owning learning institution wishes to revoke their Creative Commons license.


Within the context of this resource, libraries aren’t just collecting or maintaining a collection.  They need to encourage and expand the knowledge of their educators and learners to allow them to understand what open education content is, and how to use it within the terms of the CC license.  Libraries can re-use and maintain their own set of open content within OERCommons as well as support its use, creation and recreation.  As OERCommons suggests “Re-use and adaptation of OER by educators bring new potential to support individualized teaching and learning, personalized networked services, and collaborative innovation across institutions and academic disciplines.”  For libraries this can mean the ability to offer innovative methods of learning, and the creation of networks between libraries that are collaborating on OERCommons.


Libraries have other choices with regards to handling open content.  There's very little research on how libraries can and have systematized access to Creative Commons and other open licensed creative works, as opposed to educational or academic materials.  Since much of the creative open licensed work is decentralized to a certain extant, making it sometimes hard to track down open licensed work to promote in a systematic way, libraries have to rely on word-of-mouth or other resources, such as Cory Doctorow's blog, Boing Boing.  Doctorow is a well-known author and advocate for open content, so when he becomes aware of work, especially traditionally published work, being licensed under Creative Commons, he notes it on his blog.  While this isn't exactly a distribution system for the work, per se, by becoming aware of what works are under Creative Commons, Doctorow is assisting libraries in the midst of building their own repositories or collections of open content.   In becoming aware of who is producing open content, it also allows libraries that want to promote open resources to reach out to creators and promote their open content work in a more organized manner.


The most traditional method of promoting, if not distributing, open content is, of course, to buy it in physical form.  Many open content digital journals sell a print supplement, and many, if not most, of the creative works producers sell physical copies of their books.  A library could promote open content by providing the content in both physical and digital formats, and letting patrons know how to find repositories, the library's own or otherwise, of open information or creative works.


Libraries have a wide variety of options to choose from when it comes to handling open content.  The sheer number of licenses available and the combinations can confuse libraries into choosing to err towards more restrictive content rights.  However, as many libraries have found, the net affect of opening up their collections to open content repositories is to preserve their collections more fully.  Any library can collect and reprint or archive the digital information else, creating innumerable backups, and simultaneously, any library that has opened itself to open content licenses has also opened itself up to a catalog larger than anything it could ever hold in its own physical area.  While libraries that promote being a part of a consortium of open content providers may gain access to a certain amount of prestige for supporting and encouraging open content, promoting open content quietly by simply offering access to databases is not enough.  Open content can provide patrons with the diversity of information they desire and the quality of information they desire, but only if libraries promote the inclusion of those materials and how they can be used.



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