Legal and Licensing

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Copyright presents one of the most significant roadblocks in making the DPLA a reality. The issues are numerous and complicated, particularly in light of the ongoing litigation with Google Books. Because the project is still in the early phases of planning, the specific details of legal/licensing model are still in discussion. DPLA has expressed a commitment to a model that is compliant with copyright law--however, even a transparent and legal approach to a digital public repository brings up a lot of issues and questions:

• Orphan works--does fair use allow for the digitization of books for the purposes of preservation?
• Doctrine of first sale--how does this apply (if at all) to digital formats?
• Third party permissions--some parts of books (for example, photographs or maps) are restricted by third party permissions. Can that material be used under the terms of the original license, or would a different agreement need to be crafted?
• Metadata--would the DPLA be able to use proprietary metadata (e.g. MARC records)?

Initially, the DPLA will be focusing exclusively on material that is available in the public domain--it is unclear whether or not newer materials will be purchased or if such a model is even possible. The potential problem with building a collection that exists entirely within the public domain is that DPLA will need to distinguish itself from other public digital repositories (such as Project Gutenberg) that already exist on the internet.

At this point, it's difficult to say what kind of licensing model would allow the DPLA to make copyrighted materials available. Current eBook lending models do not allow for unlimited use of copyrighted works--if a library buys three licenses for Harry Potter, a maximum of three people can read Harry Potter at any given time. Because DPLA would work on a national level, the number of copies that would need to be purchased would be enormous in order to avoid lengthy hold lists. Additionally, it's possible that eBook publishers would put severe restrictions on eBook materials in order to compensate for a perceived loss in revenue. They could go the route that HarperCollins took and impose arbitrary check out limits before the book needs to be repurchased, or they might raise the price of eBooks by 300% for libraries, as RandomHouse recently did. Or, they might not even make eBooks available for libraries to lend out.

DPLA might consider a model similar to My Media Mall. The collection could be available to the public, but public libraries could purchase additional copies of particular books for use by their patrons only. Such a model would certainly help build a national resource that is closely linked with the public library system--however, DPLA would need to organize on a national level with public libraries in order to make that happen.

The resolution of the Google Books lawsuit will also likely have serious affects on the legal framework that the DPLA ends up using. There is clearly a need for reform of copyright law in order to account for our increasingly digital world, but how that will play out remains to be seen.

Additional Sources

• The Library of Utopia from Technology Review. A great in-depth article about the project itself, as well as a discussion of the legal issues the steering committee is examining.
• The DPLA Development Wiki--Legal Issues--The questions for discussion section outlines some of the issues that the steering committee is exploring. Suggested Resources has some great links to scholarly articles about copyright law. There's also a great section that discusses models for orphan and copyrighted works that are currently used in other initiatives.
• DPLA Homepage--A brief description of the project's goals in regard to legal issues.