Tuesday, December 09, 2008

The New OCLC Policy and Federal Libraries

This blog post attempts to show that the new OCLC Policy (blogged here) effectively anulls a longstanding principle of US law, that work performed by government officials and employees is forever in the public domain.

In a library context, this has always meant that Federal libraries are not only free but compelled to share their information with the public that pays for it.

Many continue to hold that this is still true. As one AUTOCAT poster wrote:
"I find it hard to believe OCLC would attempt to assert an intellectual property right over things such as LC cataloging, which by statute is in the public domain."
Unfortunately, this conception confuses two areas of law. By crafting the Policy as a license, which is perpetual, retroactive and viral, OCLC can effect a sort of ownership--US citizens still own it, but the don't have a right to get it (except, if the qualify, with an OCLC license around it).

Thus, OCLC transforms an expensive service--access to a repository of data that, even OCLC employees admit, would fit on an iPod, with room for 5,000 songs!--into effective ownership. This state of affairs obtains even when all the cataloging and editing was done by other Federal agencies and employees. It is only broken when the library in question itself did the original cataloging. As we shall see, that doesn't help much.

Three Federal Libraries. The OCLC affiliate for Federal libraries, FEDLINK, maintains a list of its members--libraries like the Library of Congress, NASA, Justice, the Smithsonian, the National Library of Medicine, the Supreme Court, etc.

From this list I plucked three that have public catalogs--the Department of Defense, Commerce, and Labor--and carefully examined the first ten MARC records for three common English words. I checked these against the 001, 035 and 994 fields recommended in the Policy FAQ, "How can I determine if a record was derived from WorldCat?"* The results are depressing.

Of the Department of Defense's ten books on "Freedom," zero will be free after the Policy takes effect. None were originally cataloged by the Department of Defense, and all had 035 fields showing they were at one point "derived" from OCLC. In every case, the original cataloger was the Library of Congress, and many were edited by the Department of Defense. But that doesn't count. They aren't DoD original cataloging and they bear the mark of OCLC. As far as the Policy is concerned, that's the end of the story.

Of the Department of Labor's ten "Copyright" books, zero again are free. All ten were cataloged and edited by Federal employees (mostly the LC and the Congressional Information Service). But none were cataloged by the Department of Labor, and all have fatal 035 fields.

The situation at the Department of Commerce was slightly better. Here I searched for "Openness" and got only eight results. Five are clear-cut OCLC records. Two might be free--they lack 001 and 035 fields, although OCLC appears in the 040. I think, however, that they aren't currently held by the library though, and, in an overlooked provision, the OCLC Policy prohibits transfer of records when a library doesn't hold the book. But one is free--cataloged by the University of Alabama and lacking any trace of OCLC transfer.

Don't think the OCLC Policy affects Federal libraries? Think again.

Sign the Petition (if a librarian, also see this one).



Data. Here's what I found. Prove me wrong.

Department of Defense: first ten records with title starting "Freedom."

  • Freedom by Orlando Paterson (035 has ocm; cataloged by LC, edited by Department of Defense)
  • Freedom by William Safire (035 has ocm; cataloged by LC, edited by Department of Defense)
  • The Destruction of slavery (035 has ocm; cataloged by LC, edited by Department of Defense)
  • Freedom : a history (035 has ocm; cataloged by LC, edited by Department of Defense)
  • Freedom and foreign policy (035 has ocm; cataloged by LC; OCLC edits)
  • Freedom and information (035 has ocm; cataloged by LC, edits by Baker & Taylor, Connecticut State Libray and Department of Defense)
  • Freedom and the Law (035 has ocm; cataloged by LC, edited by Department of Defense)
  • Freedom at Issue (035 has ocm; cataloged by LC and about a dozen other instittions, not including OCLC)
  • Freedom at Midnight (035 has ocm; cataloged by LC, edited by Brown, OCLC and Department of Defense)
  • Freedom betrayed (035 has ocm; cataloged by LC, edited by Department of Defense)


Department of Labor: first ten records with title starting "Copyright."

  • Intellectual property and trade (035 has ocm; cataloged by US International Commission, editded by Government Printing Office and the Congressional Information Service)
  • Berne Convention Implementation Act of 1987 (035 has OCoLC; cataloged by Government Printing Office, Congressional Information Service)
  • Berne Convention Implementation Act of 1988 (035 has OCoLC; cataloged by Government Printing Office, Congressional Information Service)
  • Record rental amendment extension (035 has OCoLC; cataloged by Government Printing Office, Congressional Information Service)
  • Satellite Home Viewer Copyright Act of 1988 (035 has OCoLC; cataloged by Government Printing Office, Congressional Information Service)
  • Berne Convention (035 has OCoLC; cataloged by Government Printing Office, Congressional Information Service)
  • General oversight on patent and trademark issues (035 has OCoLC; cataloged by Government Printing Office, Congressional Information Service)
  • Copyright issues presented by digital audio tape (035 has OCoLC; cataloged by Government Printing Office, Congressional Information Service)
  • Legal issues that arise when color is added to films originally produced, sold, and distributed in black and white(035 has OCoLC; cataloged by Government Printing Office, Congressional Information Service)
  • The Berne Convention (035 has OCoLC; cataloged by Government Printing Office, Congressional Information Service)


United States Department of Commerce: first eight records starting "Openness" (only 8 records total)

  • Globaphobia: confronting fears about open trade (001 incldes ocm; cataloged by LC and Colgate)
  • Regulatory reform and international market openness (035 includes ocm; cataloged by Stony Brook)
  • Financial policies and the world capital market : the problem of Latin American countries (001 contains ocm; cataloged by DLC)
  • +A vision for the world economy : openness, diversity, and cohesion (040 includes OCL; cataloged by LC, with edits by National Agricultural Library)
  • Regulatory reform in the global economy (035 includes OCM; Cataloged by University of Georgia)
  • +Globalization and progressive economic policy (040 includes OCL; cataloged by Library of Congress, edited by British Library)
  • Regulatory reform in Spain (cataloged by University of Alabama)
  • Challenges to globalization (001 contains ocn; cataloged by University of Texas)


*The FAQs are not, however, determinative of anything. The Policy makes this clear:
"This Policy is the final, complete and exclusive statement of the agreement of the partiwith respect to the subject matter hereof."
Similarly problemmatic is the claim that OCLC will not be asking libraries to shut down Z39.50 connections. The Policy makes it clear that libraries cannot "Transfer" records to companies or for "Unreasonable use" (ie., building up a free database of library records). Since companies and entities like the Open Library aren't going to agree to the Policy, how exactly can a library avoid violating their contractual agreement if they don't shut down Z39.50 connections?

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13 Comments:

Anonymous GeekChic said...

As I understand the policy, the original cataloguing agency (found in the 040 $a field in the MARC record) can do what it likes with the record. Most of your examples show DLC (Library of Congress) in said field. So LC may freely serve its records via Z39.50 or any other means.

I'm not seeing how this supports the notion that these records are suddenly inaccessible. I'm not saying that the OCLC policy is a good thing - just noting that these records don't illustrate anything bad about it (at least, not to me).

12/10/2008 10:56 AM  
Anonymous Anonymous said...

So this has been an issue since the 80s, and this listserv message from 1997 is persuasive to me:
http://www.library.yale.edu/~llicense/ListArchives/9702/msg00066.html

"Hello,

I have been following this conversation with interest. Resource
sharing and collaborative efforts among various types of libraries are
"hottopics" in libraryland, and certainly resource sharing is what
brought OCLC into existence in the first place, so this discussion is of
value.

Many, perhaps the majority, of cataloging records are produced with
public money, and therefore should be freely available for use by other
libraries. We forget the many (majority) of public libraries in the U.S.
are too small and too poor to have access to OCLC. Many rural libraries
may not even have a professional cataloger on staff. West Virginia is
probably typical of the state of things. Of the 178 public libraries in
the state, only one, the largest, is a member of OCLC. The rest get the
bib records from the West Virginia Union Catalog, to which the academic
libraries libraries contribute. We supply original cataloging, and the
West Virginia Library Commission purchases our records from OCLC for
inclusion. In effect, we are buying back what we produced in the first
place.

Commercial database suppliers have a right to receive payment for
software development, added value information such as abstracts, and
customer support. But for librarians (and OCLC for that matter) to
natter on about copyrighting bib records is antithetical to the very
philosophy we purport to espouse.

Instead of worrying about how to copyright our work, we should be
talking about how to make it more accessible. Sharing freely, we can
help make true the visions of resource sharing and universal library
service.

Donna Lewis
Director, Library Services
University of Charleston (W.Va.)
lewisd@wvlc.wvnet.edu"

12/10/2008 11:16 AM  
Blogger Jonathan K. Cohen said...

I've asked this before, but is anyone planning on legal action to contest the new OCLC policies, using the arguments adumbrated in the original post? I'd contribute.

12/10/2008 2:14 PM  
Blogger Shannon said...

How is the proposed license
1.perpetual
2.retroactive
3.viral
?

12/10/2008 2:48 PM  
Anonymous Katya0133 said...

GeekChic - You're right that LC is free to serve records that it created. However, if another federal library accesses LC records through OCLC, that library is not free to share the records. So, in the case of the DoD library, none of the records in Tim's sample are freely accessible, despite the fact that (1) the record was created by a federal library and (2) the record now resides in a federal library.

12/11/2008 9:14 AM  
Anonymous GeekChic said...

Katya0133: Erm... those records are still freely accessible - through LC. Just because the other federal library may not be able to share them (if they use OCLC) doesn't mean that the records aren't freely available somewhere else.

12/11/2008 11:18 AM  
Blogger Tim said...

Yes, and the Department of Labor records are also freely accessible, but not in LC. To get the information, you need to go to hundreds of institutions. And, whoops, most of them don't have Z39.50 connections, so you can't get them from the institution itself.

12/11/2008 12:13 PM  
Blogger michael said...

What about the viability of implementing the policy on a technical level? Who's going to rewrite all the software involved in these transactions? Do the OCLC plan to rewrite the software behind the Z39.50 connections? Or will it be up to owners of the many systems (thousands from what I understand) that access the connections to redesign their software to check every record for adherence to the policy?

12/12/2008 8:32 PM  
Anonymous Ivy said...

Been thinking about this for a few days, and was considering raising the question on Autocat, where I've been following most of the discussion, but I am way too chicken (and yes, Tim, you can harass me all you want about that, I'm sorry but I freely admit it...)

I am in agreement with your points and I've signed the petitions et. al., but I am wondering: what else can we do? I am not being sarcastic or playing devil's advocate, I'm legitimately asking. OCLC has such a monopoly that I can't think of how we can affect the situation. Any suggestions?

12/13/2008 1:14 AM  
Blogger Tim said...

Some ideas before I got to bed.

1. Convince your library to contribute its records to OpenLibrary, before the policy goes into effect.
2. You catalog, right? Take a look at ‡Biblios.
3. Lobby your local OCLC affiliate (eg., NELINET, etc.)
4. Comment on blogs.
5. Come to ALA MW and let's plan some sessions on it.
6. Buy a t-shirt. Okay, I don't have any yet. Um, make one up?

12/13/2008 1:19 AM  
Anonymous Joe said...

Tim's ideas are all good. Let me propose 3 more.

1) Directly lobby the individual members of the OCLC Board.
http://www.oclc.org/about/trustees/members/default.htm

2) Directly lobby the individual members of the OCLC Members Council.
http://www.oclc.org/memberscouncil/delegates/default.htm

3) Convince your boss to do the same and throw around their status as library management.

Petitions are nice, but it's time for direct action.

12/15/2008 3:53 PM  
Anonymous Ivy said...

Tim,

For reasons that are far too long to fit in this comment field, about the only feasible action for me is #5. Okay, maybe #6 if I can find some of that iron-on transfer paper...

12/16/2008 1:56 AM  
Anonymous Anonymous said...

IANAL - I am not a librarian - so, my understanding of details of MARC records, Worldcat, etc. are limited. But I get that the information about books that LT is built upon come from the shared resources of many institutions. Now it seems that if these records in some way, shape or form have passed thru OCLC and have some trace of that, ownership, which brings restrictions, is being asserted. This can't be a good thing. Especially, since (as Tim notes) it is retroactive.

Maybe something explaining the impact on LT, et al, could be brought to the attention of the LT community at large?
-=Cris=- cad_lib at LT

12/20/2008 8:36 AM  

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