The title of this piece is from an episode of long-running television series, Law and Order, written by Rene Balcer. The fictional New York Assistant District Attorney Jack McCoy wins a critical element of his case by pointing out his adversary's failure to adhere to local jurisdictional requirements in handling legal matters.
The National Emergency Library (NEL) was initially presented as a public service by the Internet Archive. Faced with closures of schools and libraries due to the pandemic, the Archive’s idea was to minimize access restrictions to a digital collection of books, making the study and research processes easier for students and researchers. The Internet Archive gave a sense of the titles provided in their initial blog post, materials “acquired with a focus on materials published during the 20th century, the vast majority of which do not have a commercially available ebook”.
Theoretically, the access offered through the NEL would allow those in educational communities to make available to students a variety of useful learning materials without the limitation of being constrained by the specific number of physical copies held in the Internet Archives’ collection, the usual process that creates waitlists for digital copies, a single copy borrowed by a single individual. The NEL laudably saw those as being a barrier to education and eliminated the artificial constraint of waitlists. Access to this National Emergency Library was limited to a specific time frame, i.e., ending either by June 30, 2020 or “the duration of the U.S. national emergency”. Borrowers could access a borrowed title for two weeks before the digital copy would disappear from their access point, such as their web browser or reading device.
For the initial announcement, there was broad and visible support. Jill Lepore wrote glowingly in The New Yorker about the initiative. Early on, NPR featured a positive report, but within a week had ensured that their coverage gave equal time to those who took issue with the Archive’s approach.
Professional associations -- the Association of American Publishers (AAP), the Science Fiction Writers of America (SFWA), the Authors Guild -- complained that the Archive’s approach would wreak economic havoc on authors and publishers. In unison with a certain segment of library professionals, the associations’ point was that the Archive, while claiming the legal status of a library, was not operating according to “library rules” and, regardless of its intentions, ran the risk of damaging existing protections for traditional public lending services.
Lawyers rattled sabers on both sides. One week into April, Brewster Kahle was acknowledging on the Archive’s blog that his organization had “moved in “Internet Time” and the speed and swiftness of our solution surprised some and caught others off guard. In our rush to help we didn’t engage with the creator community and the ecosystem in which their works are made and published.” While Kahle put forward some corrective actions, the Archive response seems unlikely to fully assuage stated sensitivities.
In the existing environment of the traditional information community, access is handled by looking at segmented populations in the context of a geographical region. What digital content individual patrons may borrow from a library -- whether it be a trade or academic publication -- depends on negotiated licenses and partnership agreements in place at the institutional level. Over time and to save stakeholder time, the information community adapted business practices to allow larger groups -- a county library system or an academic cooperative -- to license the content at an affordable level, while recognizing local community needs and usage.
The original announcement on the Archive blog noted the following, “Working with librarians in Boston area [sic], led by Tom Blake of Boston Public Library, who gathered course reserves and reading lists from college and school libraries, we determined which of those books the Internet Archive had already digitized.” Theoretically, at least, there was some intent to curate what would be on offer, but a subsequent line in the Archive’s announcement indicates a realization that the size of the collection couldn’t scale to satisfy what Kahle calls “a global community of displaced learners”. An April 13 post on the Archive blog noted statistics from UNESCO, documenting how the pandemic was impacting the educational sector. 188 countries have closed down their schools nationwide and 91% of students worldwide have had their education disrupted. The Internet Archive saw this in terms of a global need and moved to serve any population whose circumstances had deprived them of local access. At the same time, while content providers and libraries continued working to ensure that access to needed resources was available, the Internet Archive was drawing attention to the problem that, for some market segments, the model does not meet the need. The previously referenced April 13 blog post also included messages of thanks from educators at the middle, high school and college levels. Required reading and research materials that those educators could not find or readily obtain through normal distribution channels were available in a timely fashion from the Internet Archive.
In a public health crisis, it’s easy to assume that existing practices will be set aside in favor of new societal conditions in order to meet an emerging need. For a more traditionally-understood information community, we understand that we’re operating within an imperfect, artificial construct with an intentionally limited view of technology and use. However, it is one that has been worked out in recent decades by publishers and librarians through adversarial as well as collaborative engagement. While many library patrons don’t fully grasp that reality, players in the existing ecosystem referenced by librarian Lynne Thomas do. The Internet Archive was trying to play stickball in Canarsie without acknowledging or abiding by Brooklyn rules.
As the AAP noted in a press release, dated March 23, content providers have stepped up in remarkable ways to serve the public during a difficult period. There are a variety of community efforts, including an effort by NISO, to aggregate information about how access to books, journals, datasets, and other content is being widened. We try to make that news more discoverable by those whose lives have been made more challenging (more frantic) by current circumstances. But the move by the Internet Archive surfaces a point that our community is frequently less likely to admit. The world is bigger than Canarsie.
Set aside for the moment worries about unanticipated legal precedents in copyright and the agony of renegotiating world treaties. One take-away from this global pandemic might be the humble recognition that there are existing needs in the marketplace that are not satisfactorily served by current access models.
Open access over the past 25-30 years was driven by frustration with business models in the wake of the serials crisis. And businesses are notoriously slow to innovate when risk to a seemingly stable financial model is involved. But the world today does not look the way it did in the '90's, when the members of the community were initially experimenting with digital journals in Project Tulip. This global health crisis is going to have long-term ramifications for higher education and research communities. To survive, the information community will have to be ready to adapt to shifts made in those communities. Access models need to serve fundamental business requirements, of course, but surely there is room for improvement. The question is whether it is time to work out better possibilities, better models for satisfying information needs in a marketplace ready for new efficiencies and approaches. How might we innovate more successfully to ensure that critical information resources are made accessible to all?