indological digital library

Thu Apr 5 14:52:03 UTC 2007

Colleagues,
I wouldn't want to ignite a controversy, but I do disagree with the thrust 
of Mr. Ferreira-Jardim's note below. The argument seems to be that while 
republishing copyrighted books on the web may be illegal, it is ok because:

a) the books are several decades old
b) the books are "now completely inaccessible" otherwise
c) it might be hard for a legal copyright owner of the works to obtain a 
legal remedy for breach of copyright
     1. because Indian law in such cases might not be clear (?)
     2. because the some of the works are being published online by the 
government of India
d) making "rare, out-of-print materials", "precious MSS" and critical 
source works available freely on the web is a good thing to do

As a scholar and a librarian, I cannot disagree with the *desire* for 
broadest possible access to important and hard-to-get research materials. 
But I do have to disagree with this attempt to sweep the legal realities 
under the rug. To take the points above in order:

a) The books are old, but age itself does not determine copyright status. I 
am not a lawyer, but I believe there are explicit copyright laws in India, 
and any given work published in India (or anywhere else) either IS subject 
to copyright or IS NOT.

b) Most of these books are not inaccessible. It may be difficult to 
purchase private copies for one's own bookshelf, but these books do reside 
in (many) libraries around the world, where they are well preserved and are 
available for local consultation or interlibrary loan. But even if there 
were no copies around where one would want them, that still would not 
affect the legality of republishing them without permission of the 
copyright holder.

c) Enforcement of a law (or lack of it) is a separate matter from the law 
itself. If violating someone's copyright protections is illegal, that fact 
that he or she may not easily be able to do anything about it doesn't 
change the situation: it was a violation of law. (Also, looking at the 
headlines each day, I would hate to base any judgments about the merit of 
doing something upon whether or not it is possible to prosecute the 
government for doing it!)

d) We should not confuse "precious MSS" with modern copyrighted published 
works. The owner of any ancient manuscript certainly has the right to 
republish that work (in print or online) without having to secure 
permission from the author(!) or anyone else. Similarly, a published work 
that has passed out of copyright and into the public domain can be 
republished. But a copyrighted published book that is, say, 40 years old, 
and is still under copyright, BELONGS to its copyright owner, and, as far 
as law is concerned, cannot be republished without permission of that 
owner. (I am certain that I am oversimplifying legal complexities here, but 
you all understand the basic point I am making).

I don't deny that the "source works" in question may be precious to 
scholars, many of whom may indeed have a hard time getting their hands on 
copies of many of them. And obviously the scholarly uses to which these 
sources are put are all to the good and have little in common with 
commercial piracy for profit and other examples of intentional abuse of 
intellectual property. But I am not comfortable with a view of copyright 
that says, basically, "Hey, we are good people doing good work and we need 
this stuff, so it is ok for us to ignore the laws that apply". As someone 
whose writings have occasionally been republished online without permission 
or citation, I can tell you that such arguments don't look quite so 
convincing to the injured party, even if he can't take anyone to court over 
it.

Am I saying that the DLI or other online digital libraries should stop the 
great service they are providing to scholars? No. I am only saying that 
there IS a proper and legal way to go about it, and many libraries around 
the world are developing online materials following such responsible 
approaches. It involves making clear distinctions between public domain and 
in-copyright material. In the case of the latter, one should make serious, 
good-faith efforts to secure permission from the copyright holder, and 
document those efforts. Sometimes the best efforts fail to locate a living 
copyright holder, and many countries (I believe India is among them) are 
now moving towards recognizing a new more open legal status for such 
"orphan works". (See 
<http://www.ala.org/ala/washoff/woissues/copyrightb/orphanworks/orphanworks.cfm>). 
Sometimes the owners are located, and are more than happy to allow their 
works to have a new life online, especially where there is no intention to 
bring out another print edition. Sometimes the party doing the digitization 
work makes a deal with the owner for non-commercial republication online, 
in exchange for giving the owner digital copies of their materials. (See, 
for example, some of the online texts and dictionaries published on the 
Digital South Asia Library at <http://dsal.uchicago.edu>). Sometimes, it is 
even necessary for a library to give a token payment to a publisher to 
secure a perpetual General Public License 
(<http://www.gnu.org/licenses/gpl.html>) allowing them to put the material 
online for non-commercial use. And sometimes, the owner just says "no", and 
we have to live with that.

I know that copyright restrictions are indeed "vexatious" for scholars, and 
that sometimes commercial publishers use these legal regimens to seriously 
exploit academe. But I feel that as scholars we should recognize the value 
of intellectual property as a concept, and put it use to our greater 
benefit. We should neither ignore copyright, nor attempt to sweep it under 
the rug for our convenience, as those approaches tend to weaken our cause. 
We should face it directly, lobby to eliminate or modify unfair regulations 
(e.g. promoting open access approaches to scholarly publishing, working 
towards appropriate fair-use laws, recognizing the status of orphan works, 
etc.), and demonstrate by our actions that while commercial ventures can 
often be exploitive, as scholars we try not to be.

David Magier
Columbia University

--On Thursday, April 5, 2007 11:18 PM +1000 Antonio Ferreira-Jardim 
<antonio.jardim at gmail.com> wrote:

> Dear colleagues,
>
> I am not aware of a digital library of specifically indological pdf-s,
> however I equally agree that it would be an excellent idea.
>
> As far as I can see, most of the scanned texts in the DLI are from
> books published in India at least 40 years ago. Most of the pdfs of
> books published in Europe or the USA are more than 60 years old. Many
> (if not most?) of the total amount of pdfs are of printed works which
> are now completely inaccessible on both the antiquarian and in-print
> market. I also note that the DLI pledges to remove a pdf from
> circulation upon the payment of a fee from the original publisher.
>
> Given these circumstances, I am not aware of any case law precedent or
> legislative requirement in the Indian jurisdiction which would prevent
> source materials of this nature being made public on the grounds of
> copyright breach. That said, India may be party to various
> international agreements relating to intellectual copyright that may
> preclude certain public access to these texts. However, given that the
> project seems (unless I am mistaken) to be almost entirely GOI-funded
> and supported, I would be interested to see what legal remedies in
> which legal jurisdictions would even be available to a publisher
> alleging copyright breach!
>
> The DLI intends to digitise a vast mass of precious MSS and literature
> previously unavailable to scholars. I would personally hope that
> vexatious issues of copyright for rare, out-of-print materials do not
> hinder this excellent endeavour or other efforts akin thereto.
>
> Perhaps a statement of support by scholars is in order?
>
> Yours sincerely,
>
> Antonio Ferreira-Jardim
> University of Queensland
>
> On 4/5/07, JN <jneuss at arcor.de> wrote:
>> Dear list,
>>
>> on Wed, 04 Apr 2007 10:46:51 +0200 Dominik Wujastyk <ucgadkw at UCL.AC.UK>
>> wrote:
>> [snip...]
>> >  I have a growing personal digital library of valuable books as PDF
>> > files.
>> [snip...]
>>
>> is there any platform where scholars could share their pdf-files? I have
>> an ever growing library of valuable indological source books in
>> pdf-format too. if there was a platform to share such resources, the
>> effort of scanning etc. would be reduced and everyone could contribute
>> his or her pdfs. and everybody else could share the fruit of the
>> individual effort. i suppose that it is evident to everyone that
>> computer readable (or rather viewable) versions of works which are
>> otherwise available only in printed form are desirable as you can have
>> your library (or at least important portions of it) with you on the
>> laptop etc., everywhere you go.
>>
>> but then the question arises: what about copyright laws?
>> we all know the gretil archive; many of the texts listed there have also
>> been extracted from printed editions subject to copyrigth laws. i suppose
>> that pdf-files prepared from printed books make a big difference in legal
>> terms, don't they?
>>
>> any chance to overcome this problem, anybody concerned with the question
>> of a (centralized) indological digital library?
>>
>>
>> cheers
>>
>> jn
>>
>> ________________________________________
>> Jürgen Neuß, M.A.
>>
>> Freie Universität Berlin
>> Institut für die Sprachen und Kulturen Südasiens
>> Königin-Luise-Str. 34 a
>> D-14195 Berlin
>> Germany
>>