While I was reacting to one aspect of the New York Times article on the OCA, others were reacting to the very last bit of the article on the proposed ILL-like service from the Open Library initiative. Aaron Swartz was interviewed at the Berkman Center. Günter Waibel briefly described the effort. Peter Brantley had something to say.
But Peter Hirtle really had something to say.
For me, this is the key potion of Peter's post:
As much as I want to encourage digitization and freeing of post-1923 works that are indeed out of copyright or orphaned, I know that Peter Hirtle has a strong position here. This principle is one that we've been looking at quite closely in a related realm -- developing a proposed "drop-off" digitization service for faculty. Not surprisingly, faculty sometimes hope we can digitize, say, slides that they have purchased commercially. We must determine who the source is and if we can obtain digital versions (whether at a fair price or at all). If we then decide that we can digitize them for the faculty member (which will not always be the case) we definitely cannot add the files to our collections or hold on to them in any way.
Unfortunately just because a book is out of print does not mean that it is not protected by copyright. Right now a library may use Section 108(e) of the Copyright Act to make a copy of an entire book for delivery to a patron either directly or through ILL, and that copy can be digital. But the library has to clear some hurdles first. One of them is that the library has to determine that a copy (either new or used) cannot be obtained at a fair price. The rationale for this requirement was that activity in the OP market for a particular title might encourage a publisher to reprint that work. In addition, the copy has to become the property of the user - the library cannot add a digital copy to its own collection.
Is this inefficient? Yes. Would it be better if libraries could pre-emptively digitize copyrighted works, store them safely, conduct the market test when an ILL request arrives, and then deliver the book to the user if no copy can be found? Yes. But this is not what the law currently allows.
Peter ends his post with a goal for us all --that we should all work toward "convincing Congress that the public good would benefit from a more generous ILL policy for out of print books " in order to increase access to our collections.