The COVID-19 pandemic has created a huge increase in demand for digital copying and distribution of written (and visual) materials for distance learning at all levels. This includes everything from current news articles to textbook content to literature and non-fiction books.
Writers are, of course, eager to make our works more widely available — and to make a living to enable ourselves to continue to write.
One (illegal and unfair) way to make our works available in digital formats is what the Internet Archive has done by unilaterally deciding that rights to digital copying and distribution of our work are valuable — and therefore that the Internet Archive should appropriate those rights and give them away for free.
But there is a better, legal, fairer way: Federal funding to make learning materials available in digital formats for home schooling during, and after this emergency.
Normally, if there is an emergency that creates an increase in the need for some service for a public purpose, the next step is to discuss how much this service is worth, and how the government will fund it.
Why should all of the cost of providing rights to digital copying and distribution of distance learning materials be borne by creators? The digital librarians are getting paid. The programmers are getting paid. The builders and maintainers of the server farms are getting paid. Everyone involved is getting paid — except the writers, photographers, illustrators, and other creators of the works that are now in such demand.
Even in a pandemic, we don’t confiscate masks or other essential supplies without paying for them, or expect workers in mask factories to work extra shifts without pay. If the government wants more masks, the government buys masks. If property is to be taken by eminent domain, in an emergency or otherwise, (1) the decision is made by the government, not by a private entity, and (2) the government has to pay fair market value for what it takes.
We don’t necessarily need any change to copyright law, any more than we need a change to property rights to enable the government to buy protective equipment for front-line workers providing public services.
To date, pandemic legislation has included neither any funding nor any mechanism for acquiring and making available distance-learning materials.
Up to $50 billion has been appropriated for airlines. Zero dollars have been appropriated to acquire digital teaching and learning materials for the tens of millions of students studying at home. (There’s some funding for other educational purposes, including for network connectivity, hardware, and software — but not for the content this technology would be used to deliver.)
Are airlines really that much more important than education?
The cost of acquiring digital distribution rights for distance-leaning materials would be quite modest, compared to other line items in the pandemic emergency bills. If Congress appropriated 1% for digital learning materials of the $50 billion it has already voted to give the airlines this year, that would amount to about $100, on average, for rights to each of the five million books that the Internet Archive has illegally scanned and is illegally distributing in digital formats through its “Open Library”. That’s a relatively small amount for the government, but could be significant to authors.
Funding for digital content won’t solve the problem without a mechanism for distributing those funds to authors. How might this work? One possible framework would be opt-in licensing of specific works. Another option would be “collective licensing”. In the USA, writers don’t currently have any licensing organization that represents us and is empowered to negotiate collective licenses on our behalf, and antitrust law makes it difficult for writers to organize such an entity. Reform of antitrust law is needed to allow “self-employed” freelancers to organize collectively.
A potentially simpler mechanism to implement than collective licensing, and one that it might be possible to put in place more quickly, would be a “public lending right” (PLR), funded by the Federal government, providing a pool of money for creators of works lent in printed form or copied and distributed in digital form through “e-lending”.
PLR schemes already exist and compensate authors for lending of printed works in Canada, throughout the European Union, and elsewhere. The PLR scheme already successfully in operation for many years in the UK was expanded to cover digital “e-lending” in 2018, and many other countries are similarly extending PLR to “e-lending”.
PLR schemes are intended as a supplement to, not a substitute for, purchases of books or e-book licenses. But if authors were fairly compensated, through licensing fees and PLR payments, most of us would be eager to participate in projects to digitize our backlists and distribute them to students for distance learning. But authors need to be involved in these projects, and we need to be fairly paid.
Much work will be needed to establish a “Public Lending Right”, possibly including “e-lending”, in the US. It may not be possible before the end of the current pandemic. The first steps are for Congress to recognize that this is a need that deserves funding, and for libraries (including, and ideally starting with, the Library of Congress), schools, and educational institutions to start talking to authors about how to make such a system work in the US the way it has in so many other countries.