By Diane Leenheer Zimmerman. Full text here.
The enormous controversy generated by the Google Library project demonstrates three important points. First, the potential for digitization to protect works against loss or deterioration is tremendous. Second, digitization creates an opportunity to offer access to preserved works without regard to a user’s physical location—something that both promises a great public benefit and, from the copyright owner’s perspective, seriously threatens the economic well-being of the copyright industries. Third, copyright law as currently designed cannot help either realize the benefits of digital preservation or mediate effectively and reasonably between the public and the copyright owner over the issue of access.
This Article steps behind the Google Library controversy to outline the public gains and current problems arising from a broad right to digitize for preservation purposes. It suggests that we cannot hope to save the fragile embodiments of our cultural life for future generations unless we can come to terms with issues such as whether to require consent for preservation copying or which conditions should govern access to the databases that store preservation copies. The Article suggests a series of obligations that should bind any would-be archivist so that the public interest is served in ways that a purely private actor like Google may ignore. It also attempts to lay out possible compromises that would allow the public to reap the benefits of digital preservation while retaining an incentive structure for the creators that will not undercut production of the very materials we hope to save.