Copyright and the Code

You might not know this, and based on the attendance at open hearings and such you probably don’t care, but the ALA Council approved a minor revision of the ALA Code of Ethics last week. I had a very small part in this process as the RUSA representative to the ALA Committee on Professional Ethics.

Almost everyone with any interest in the Code was happy with it, except for Article IV, which since 1995 has read, “We recognize and respect intellectual property rights.” Apparently, this article was slipped into the Code during the last revision without much discussion. On the surface, it seems innocuous enough. To me it doesn’t say much more than, “we obey the law.” The problem that I and others had was with what wasn’t said, namely, that librarians also want to make information available to people. After many good suggestions and a lot of wrangling, the revised wording, and that which I think was approved, is: “We respect intellectual property rights and advocate balance between the interests of information users and rights holders.”

Near the end of the committee discussion, I found myself in the unusual position of being on the radical side of the debate. In general, I’m temperamentally moderate and believe in different spheres of justice, to borrow and inappropriately apply a term of Walzer’s. For example, I’m one of those who thinks the ALA shouldn’t take a position on the Iraq War, despite the fact that I have opposed it from the beginning on ethical, political, and military grounds. This would mark me as a “conservative” among some groups of librarians. However, the pendulum shifts when it comes to library issues. I proposed dropping the property rights clause entirely, and substituting something like, “We want to make as much information as possible as freely available to as many users as possible.” Perhaps not that very wording, since it isn’t bureaucratic enough, but certainly that sentiment.

At one point, I was accused of wanted to do away with copyright, but such was not the case. My argument for this change assumed that the ALA as an organization and the vast majority of librarians want as much access to information as possible, and that while we agree with the idea of copyright, we do not in fact agree with much of current copyright law, especially the Sonny Bono copyright extension and the Digital Millennium Copyright Act. Had those acts been in force in 1995, Article IV might not have been written.

Article I, Section 8 of the Constitution states the purpose of copyright: “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” My personal test case for copyright is T.S. Eliot, who has been dead for over 40 years, but whose estate maintains strict control over much of his work because of copyright extensions and charges high prices for inclusion of his work in anthologies. But any copyright that extends this far past the author’s death isn’t promoting the progress of anything. It’s of no benefit to the author or the common good. The idea of copyright as an unlimited right to ownership by a corporation to some piece of intellectual property in perpetuity has no justification, legal or moral.

I wanted to write this yesterday, because I was thinking of Martin Luther King Jr., and his use in the “Letter from Birmingham Jail” of Aquinas’s distinction between just and unjust laws. Under natural law theory, a law on the books (or a positive law) is only just if it’s in accordance with the natural law. We can have unjust laws, and it seems to me that people are much more likely to ignore an unjust law and not feel bad about it. How many people, I wonder, make copies of their own DVDs to put on their video iPods or other portable devices? Plenty. But why would so many people violate the law against this? Because it’s a stupid law, and also an unjust one, if we can imagine a clause of the natural law governing digital copies of DVDs. People violate this law all the time, and feel no remorse at all. Nor should they.

The new code wants to ensure that librarians are on record supporting the rights of people to access information that may be copyrighted, which libraries have been doing since there was copyright. With current copyright law, we might not be able to create libraries today if they didn’t already exist, and if we move to an all digital world with the extremely restrictive digital rights of today, then libraries will have a harder time serving users. A more radical approach would have been the acknowledgment that a lot of us only grudgingly accept current copyright law, and push it to the limit in various ways to get information to users. Upon reflection, I don’t think the more radical version would be a good idea, because we don’t want to give the copyright fascists any more ammunition to attack libraries with, but I still believe that in the dark shadows of our professional souls where the lawyers aren’t allowed, the needs of the users still trump excessive copyright laws. We just can’t officially admit it.

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