The inaugural Australian Library and Information Association (ALIA) Library Week Oration, delivered at the State Library of NSW, 1 May 1996 by The Hon. Sir Anthony Mason AC, KBE - Chairman, National Library of Australia Council; Chancellor, University of New South Wales; National Fellow, Research School of Social Sciences, Australian National University.
Selected photographs from the Oration are also available from the ALIA site.
The title of this Oration, "Reading the Future", calls for a speaker with the qualities of a seer. Unfortunately, I am no Nostradamus. Yet reading the future is the challenge which now confronts libraries and library communities throughout the world.
In order to give you some idea of where I come from, I should describe myself and my relevant interests. First, I confess to being a lawyer. I would like to say that I am "simple lawyer" but that would be to place too great a strain upon your credulity - the simple lawyer, like the simple scientist, is a figment of the imagination. Apart from being a lawyer, I am an avid reader with an abiding interest in history, literature and current affairs. My life has revolved around books and the services that librarians can offer. But until July last year, when I was appointed Chairman of the [Council of the] National Library of Australia, my experience was largely confined to that of a user of library services, though I have had a close connection with the High Court of Australia library. My experience as a user of libraries extends to the libraries of the ANU and the University of NSW, institutions with which I am presently associated, and the Library of the Mosman Municipal Council, where I occasionally accompany my five year old grandson, whose taste in books differs from mine - he is an enthusiastic reader of Usborne Adventure Books, Asterix and Paul Jennings.
The history of libraries goes back a very long way. Some knowledge of that past is essential to an understanding of the present and may equip us better to identify the problems of the future. In the words of T.S. Elliot,
"Time present and time past
Are both perhaps present in time future,
And time future contained in time past."
Although we associate the library with printed books, the library existed long before the printing press was a gleam in William Caxton's eye.
A collection of clay tablets from the 21st century BC found in Babylonia was thought to be the first library. Private libraries and temple libraries were known in Ancient Egypt. Immediately before and during the Hellenistic period, the Great Library of Alexandria flourished while that city was the intellectual centre of the Eastern Mediterranean. The Great Library was thought to have 500,000 papyrus rolls. After the collection was heavily damaged in Caesar's wars against Pompey, Mark Antony, as a gift to Cleopatra, endowed the Great Library with the 200,000 volumes of the library of the Kings of Pergamum, another famous library of the ancient world.
Unhappily, the Great Library of Alexandria was destroyed in the third century AD. But, in its time, it had not only collected and preserved the documentary published heritage of the Egyptian people comprehending all aspects of Egyptian life and thought, it had also extended its coverage to embrace works of general interest in the ancient world. The activities of the Great Library were not limited to collection and preservation; collection and preservation were undertaken for the purpose of study and research.
What I have just said about the Great Library reminds us that the historic role of the library as a treasury of knowledge for scholars and the people has remained constant. The preservation of, and access to, the published heritage of the nation for the purpose of study and research - as well as the collection of works published elsewhere relevant to our situation - is a responsibility of our libraries now as it was of the Great Library then.
But the idea of a library as an on-site owner of a large collection is giving way to the notion of a functional library which will deliver electronic materials not housed on-site. The functional library will collect only materials which are regularly used.
Unfortunately, no library in the modern world can aspire to such an all-embracing collection as was possible in the ancient world. Even such a well-endowed university library as Harvard cannot acquire all relevant material. The old expectation that a national library can maintain a comprehensive collection spanning all disciplines and subjects to satisfy the requirements of scholars is no longer sustainable. Conversely, with the deluge of information available on the Internet, quality of information has emerged as a problem - notably in on-line services for schools and community groups.
But the problem of quality is not confined to those services; it extends to books. For municipal libraries and others, selection based on quality assessment and inter-library loans, coupled with efficient delivery services, are the pathways to enhanced performance.
Today, throughout the world, libraries are contending with a variety of constraints upon their capacity to develop collections in an era where publications are expanding across an ever-widening landscape of subjects and forms. These constraints range from endemic funding limitations and storage inadequacies to the increased cost of acquisitions and subscriptions due to the pricing structure of very large international publishing and information groups such as Elsevier NV. These structures have been reinforced by the merger of very large publishers. This has lifted the price of books and particularly serials way beyond the rise in inflation. The future of serials is in the balance. Technology may result in the article displacing the journal as the unit of library currency.
The Report of the Association of American Universities Task Force on a National Strategy for Managing Scientific and Technical Information, 1994 stated:
"There is ample evidence that scientific and journal pricing does not reflect a competitive economic market."
The Report pointed out that the functions performed by publishers had migrated into the hands of a relatively few very large commerical publishers - a monopoly-like market place. The report goes on to say that, in the commercialization of the scientific journal, the concept of the university as a supplier of scientific knowledge was lost. The report makes the point:
"This knowledge has too great a value for achieving national and global education and research agendas for its ownership and control to be relinquished to enterprises with different goals."
As things stand, it is the large publishers, not the authors, who make the profits from the distribution of sceientific and academic journals, though it is the authors and the academic review process that creates the value in them.
The emergence of networking as a means of disseminating and retrieving information required libraries to offer computer-based facilities in addition to maintaining infrastructure for print materials. The purchase of equipment with a relatively short life span for information technologies places another burden on the stretched budget of libraries. As library services become more complex and technologies change, greater investment in staff training becomes necessary.
At the same time, Australian libraries in common with libraries elsewhere, are now participating in the technological advances which are taking place in communications. Those technologies can provide secondary bibliographic resources, information about information and access to the holdings of other institutions. The technologies are expanding access to documents and information and are expediting the delivery of services. The new technology is the key to transforming the National Library from a Canberra-based institution into a truly national institution making its materials available to a wide range of users throughout Australia, either directly or through other libraries and institutions. That should enable the Library to overcome any misconceptions that it exists to serve the Canberra community rather than the entire Australian community.
Taking advantage of the new technology has its problems. First, it is expensive. It therefore requires a re-allocation of resources. Secondly, planning that re-allocation is problematic for various reasons, of which I shall mention two. One is the uncertain rate of technological development, implementation and user acceptance. The other is thevery rapidity of technological change, often of an unexpected kind, with its hidden menace that tomorrow to-day's technology will become yesterday's hardware. So the National Library, like the State Libraries and the University Libraries, is faced with the necessity of making difficult choices in terms of reallocation of resources with a view to taking advantage of the new technologies, and this at a time when the extent to which electronic text will replace print remains uncertain. Choices must also be made by government and by legislators - not least with respect to the daunting problems presented by moves to alter the existing copyright regime.
For the National Library, these choices have been difficult. Despite funding limits which may become more severe, the Library is applying its resources to embrace technological change. In order to do so, the Library is reducing its collecting and processing of overseas printed materials. It has implemented its announced policy of concentrating on its strong Australian, Asian and Pacific collections. That policy accords with Australia's growing engagement with its neighbours in the Asia-Pacific region by Australian governments past and present. That engagement will lead to greater cultural exchanges between Australia and its neighbours and to greater regional understanding and co-operation.
It is simply not possible for the Library to advance on all fronts. So it makes sense for the Library to concentrate on expanding the principal strengths in its collections. This may disappoint people who, like myself, have strong interests outside those fields. They may feel that their areas of interest have been abandoned and that the Library should become a Library of last resort - a library long-stop, so to speak. However, the National Library cannot collect the scraps left by others. That said, there is scope for co-operation among libraries in relation to collections.
The electronic retrieval, storage and dissemination of information offers some solutions to the problems facing libraries. Electronic storage provides a possible solution to the problems facing libraries. But electronic storage will not solve the problem unless it becomes permanent and a substantial print replacement. Predictions of replacement have not come to pass. Despite a decline in newspaper circulation and book purchasing, the print medium almost certainly will remain with us. Umberto Eco disagrees with McLuhan's view that image will dominate alphabet in the new electronic culture and that electronic technology will create the global village. According to Eco, solitude is the likely problem of the new age [1].
The doomsayers wrote obituaries for radio and the cinema. Both are now thriving alongside television. So far, modern technology has not succeeded in producing an electronic text which is as readily accessible and as comfortable as the book and I doubt it ever will.
The Australian newspaper of 2 April 1996 contained a report of a project at the Massachusetts Institute of Technology where an effort is being made to create "the book of the future". According to the report
"The project ... envisages the creation of paper embedded with a microscopic mesh of conductive wires, covered by what he calls 'electronic ink' - tiny spheres of matter that respond to electrical impulses to reveal either a black or white side.Each paper page would contain perhaps a million electronic ink dots that could be arranged, by digital impulses sent through the wire mesh, to look exactly like a page of any book complete with picture.
[the plan is to link] several hundred pages to a memory device embedded in the spine of the book, such as a miniature CD drive, to create a more pleasant, convenient, versatile and easy-to-read version of a computer screen."
In other words, the object is to create a pseudo-book.
Joseph Jacobson, the project leader, considers that the younger generation, glued to computer screens, seem to ignore books. And there is some evidence that there is a decline in the reading of books by teenagers [2]. This has led one commentator to suggest that if Jacobson's project succeeds, then there could be an explosion in book publishing.
Whether his project succeeds or fails, the likelihood is that electronic texts will substantially replace print in a large number of areas, particularly where the search is for information rather than anything else. Electronic texts may not be as dominant outside the realm of information, thought they will play a large part in the dissemination of ideas and in teaching where they can be easily combined with sound, movement and graphics. It will take time before the potential of the program content of electronic text is fully realized. But electronic text has advantages over books in that they are bulky, time-consuming and costly to produce. They are also composed as an entire whole rather than being accessible as to particular topics [3].
All that does not mean that electronic texts solve the storage problems of libraries by making libraries redundant. The futuristic vision of the scholar strapped to his work-station, whether at home, place of work or in a library, may be a flight of fancy. Michael Gorman has suggested that the vision might have some applciation to technicians and technologists but not to scholars and scientists whose requirements will call for greater flexibity [4].
The accessibility of electronic text on screen does, however, offer to libraries a potential solution to the growing problem of meeting the service demands of users. That would be a great improvement. But there may be copyright hurdles.
The emergence of the Internet with its ever-widening array of users - now said to be 40,000,000 and rapidly increasing - provides access to information in competition with libraries. It is likely that usage of the Internet and other on-line services will be greater in Australia than in many other countries by reason of our high academic participation and high degree of computer literacy. And there will be an expansion in the materials available on the Internet and other on-line services.
Electronic text brings about a more direct relationship between the reader and the author. It has been said that reading electronic text is more conducive to thinking and reflection than reading printed text. To me, it all depends upon one's purpose in reading. Is the purpose leisure and entertainment or is it reflection or reserach? Having said that, I acknowledge that viewing a screen enhances one's concentration. For example, when I was a judge, I found it easier to concentrate on argument presented on a television screen in court than on an eyeball to eyeball argument in court.
Given the availability and accessibility of a range of information spanning so many fields, there is the likelihood that there will be a very significant degree of direct participation by individuals in on-line services. However, libraries will cater for a substantial number of people who, for some reason or other, do not go on-line. Driven by functional necessity, libraries will provide access to a large range of information in electronic form and that much of that information will have its source not in the library that is providing access but elsewhere in Australia and overseas. That development will parallel the inter-library lending of books and the provision of efficient delivery services both of which will enable effective use to be made of the Distributed National Collection.
The combination of technological and economic pressures is likely to lead to a very significant change in all information handling organizations from publishers to libraries and archives, over the next 10 years. Those who will need information on a regular basis - students, academics, public servants and professional people and others - will have access to an electronic global network which provides information, messaging and publishing facilities [5].
Just as the electronic text changes the relationship between author and reader, so it will also change the relationship between publishers and libraries. Publishers and libraries may become competitors in the same business - that of providing access to information - a matter which has some importance for copyright which I shall indicate later. Brian Kahin [6] points out that, under the old model
"publishers saw that books and journals were manufactured and physically delivered; libraries cataloged and made them available to one user at a time. In the new model, these classical functions ... disappear. Publishers traditionally evaluate, assemble and integrate products. Libraries evaluate products and assemble and integrate multipublisher environments. But is CompuServe a publisher or a library? It publishes its own material, mounts material published by others, provides gateways for other publishers and offers forums for user interaction." [7]
He asks the question: is Compuserve the equivalent of a commercial lending library? The question underlines the potential for competition that exists between the library and the on-line service provider. And, from a commerical viewpoint, there could be no reasons why a particular provider would prefer not to make its service available through a library.
The new technology could bring about a direct relationship between author and user and exclude the publisher, unless the publisher can demonstrate that it has added value to the author's text.
There is a possibility that the publisher, whether copyright owner or holder of rights from such an owner, may make the electronic text available only to a particular institution and on terms whereby the text is not to be made available to other users. Whether there will be any greater incentive to follow such a course in the electronic age than there has been in the past remains to be seen.
In the course of time, the National Library, among others, will proceed to digitise part of its collection for network access. Just how long-lasting digitised material will be is somewhat uncertain. But digital technology offers the possibility of creating and managing more fluid, dynamic documents and sharing them on a grand scale [8].
The problems which confront libraries today are compounded by the inadequacies of the law of copyright. It is no exaggeration to say that the shortcomings of the law of copyright and the absence of an appropriate regulatory regime governing the transmission of knowledge by means of the new technology are the cause of much uncertainty. The Australian government recognized the need for reform of the existing law by asking the Copyright Law Review Committee (CLRC) to undertake a wide-ranging enquiry into the Copyright Act 1968 (Cth). Submissions have been made to the Committee by interested parties, notabliy by ACLIS, by universities including the University of New South Wales, and by the Office of Regulation Review. The points made in these submissions are fundamental to the free flow of knowledge, ideas and information in this country, a matter of vital importance to the political, intellectual, economic and social life, as well as the education, of all Australians.
In February this year the CLRC published 'Copyright Reform: A Consideration of Rationales, Interests and Objectives'. The document leaves me with a profound sense of unease. It states:
"Ultimately the most important factor determining the theoretical shape of copyright is the public interest."
It goes on to say:
"Supporting the public interest requires balancing the interests of [the copyright interest groups]. The question of what is in the public interest is open to serious debate."
It is necessary, of course, to achieve a balance between the interests of stakeholders. But the document fails, in my view, to give adequate prominence to the paramount Australian public interest in the free flow of knowledge, ideas and information. The document also fails to acknowledge that the value of Australia's imports of copyright material far outweighs the value of its exports of such material and that extension of copyright protection will, in all probability, aggravate that marked imbalance. In its submission to CLRC, which preceded the CLRC document, the Office of Regulation Review made this telling point:
"Australia has a substantial and consistent net deficit in royalty transactions related to copyright ... the difference between inflows and outflows - the annual net flow - has been around $A1.2 billion in recent years. In 1993-1994, payments of royalties to overseas holders of copyright totalled $A1,732 million, while royalties earned from overseas totalled $A380 million." [9]
Yet the CLRC document simply says, among other unpersuasive comments:
"Australia is currently a net importer of copyright material. Our copyright regime may change this through its effects on the production of local product or by its inhibiting effect on the relative attractiveness of imported products." [10]
Given the marked annual imbalance of well over $A1 billion, a new copyright regime of extended protection would need to have magical properties to bring about the result suggested by CLRC. The likely reality is that such a regime would aggravate the imbalance. Indeed, the Office of Regulation Review stated in its submission that
"a general extension of copyright protection ... would have few (if any) tangible benefits and holds the risk of substantial costs." [11]
The CLRC document blithely omits any reference to this argument.
The two aspects of Australian public and national interest I have mentioned - access to knowledge, ideas and information and the financial cost to Australia - are critical considerations. Once this is recognised, we have much to lose from an expansion in copyright protection. It will suit copyright owners and large commercial interests in the United States and Europe but disadvantage Australia as well as the developing nations and poorer peoples of the world. We have already compromised our interests by our ill-starred endorsement of the 1994 TRIPS agreement at Marrakesh. It would be foolish indeed if we were to go further down that track.
My concern was not dispelled by the exposure draft of proposed amendments to the Copyright Act released by the then Federal Minister for Justice. That draft proposes "[a] new broad right of electronic transmission to the public". A transmission for which a fee is payable to the maker of the transmissions, that is, the person who is responsible for determining the content of the transmission, is expressed to be a transmission to the public. There will be many circumstances in which a librarian is the person responsible for determing the content of the transmission and it will ordinarily charge a fee. But the fee charged by a non-profit library is simply a recompense for its service in making and delivering the copy; the fee contains no component for the information itself. Why should the making of a non-commercial transmission, eg for research or study, for such a fee, amount to an infringement of copyright? Yet that may be what the exposure draft proposes. It is significant that the exposure draft, in s. 25(1) goes further than the recommendation of the Copyright Convergence Group that transmissions of copyright material "which are made for a commercial purpose should be deemed to be transmissions to the public" [12]. Most library transmissions would not be for commercial purposes. Why has the change been made? Libraries should be exempted from any transmission right, the effect of which might otherwise be to exclude them from supplying copies for non-commercial purposes or for research or study.
Another major concern with the concept of copyright and its possible expansion is that it might extend to the electronic browsing of documents on a screen. In this respect, the commentary in the CLRC document is disturbing. The commentary states:
"It has been suggested that because technology now exists to monitor all uses made in the electronic environemnt, it is now appropriate to allow copyright owners to charge for those uses, even when these uses have not traditionally amounted to infringement of copyright. Thus, 'browsing' through a database might attract a charge". [13]
Browsing or reading print material does not constitute an infringement of copyright. The user should have an opportunity to decide whether the document is of value to him. And that means that a user should have reasonable access to the document on screen in order to determine whether he wants a copy. Browsing, or even reading, on a screen is unlikely to operate as a substitute for acquisition of, or subscription for, the original work. Neither browsing nor reading amounts to making a reproduction or copy or to infringement and should not become so.
A further question arises in relation to the scanning of print material into an electronic or digital reserve only for the purpose of enabling a user to browse or read what appears on the screen. If a library can hold a hard copy on its shelves and readers may consult it without a fee, why should the new technology of scanning the same material into an electronic reserve only for the purpose of allowing reading on screen lead to a charge? Why should a change in the technology of delivery, something not ordinarily associated with copyright, overthrow the historic approach?
Behind the move towards expanding the concept of copyright is a broad notion that copyright should extend to information and ideas. Historically, copyright subsists in the form of expression. The law has consistently denied, for very sound reasons, that there can be copyright in facts or ideas. That fundamental legal doctrine, based on good sense and the public interest, has been obscured by the argument advanced on behalf of large commercial publishers that these who provide information should have the protetion of copyright. Some commentators who urge the expansion of copyright have sought to suggest that the distinction between the protection of expression on the one hand, and facts and ideas on the other, is difficult to maintain. It is a distinction that has prevailed for a very long time and it was recently affirmed by the Supreme Court of the United States. [14] The fact that it may not be easy to apply in some particular cases is a flimsy reason for abandoning it.
If there is to be a change in the concept of copyright, there should be an insistence on a stronger element of originality. In Anglo-Australian copyright law, the threshold requirement for originality is low. Equally important is the continued need to insist on the requirement that reproducing or copying a substantial part of the copyright work is the core element of infringement.
There should be no weakening of the exception in favour of fair dealing. The fair dealing exception to infringement of copyright is, and always has been, squarely based on recognition of the paramount public interest in the copying or reproduction of copyright material for certain purposes such as research and study, criticism or review, news reporting, court proceedings and the provision of legal advice. If the fair dealing exception is to be changed, it should be extended along the lines of the flexible American fair use exception. That would permit the use of copyright material for important public purposes.
The concerns which I have expressed have already been raised in the United States in consequence of the Clinton Administration's proposed legislation to give effect to the recommendations in the White Paper on Intellectual Property and the National Information Infrastructure. The White Paper's recommendations significantly extend both the concept of copyright and limit the public interest exceptions. Congress is also considering a proposal to extend copyright protection from 50 to 70 years after the death of the author, an extension which is now in place in Europe. The United States and the European Community are already seeking to secure international acceptance of an expansion of copyright or some new form of intellectual property protection to cover databases not now protected in some countries by copyright because they lack adequate originality.
In addition to the costs already mentioned, the intellectual consequences to Australians of increased copyright protection are obvious. The more we pay for overseas materials, the less we will be able to afford with possible detrimental consequences for school and university students. And this at a time when Australian universities, research and educational institutions, including libraries are already facing the possibility of large reductions in government funding. Those reductions could affect Australia's present capacity to generate the A2 billion overseas revenue which it presently generates from providing education to foreign students. Increased copyright royalties can only reinforce that unwelcome possibility.
Some idea of the order of financial cost can be gained from the potential cost to Australian Universities of possible additional fees under statutory copyright licences for use of materials in electronic reserve in university libraries, being originally print materials converted electronically for display on screen. In the case of the University of NSW alone, the possible cost, according to preliminary calculations on a particular basis, could well amount to $A2,800,000 annually. What an expansion of copyright would cost over and above present fees is impossible to estimate.
Apart from the education and the library sector, there will be the cost to business, government, the entertainment industry, and individuals, not least Australian students.
In conclusion, I reiterate that the new technology offers important advantages to Australian libraries and library services. But the enjoyment of those advantages is threatened by the possibility of expansion in copyright protection. The ACLIS submission to the CLRC raises points of fundamental importance to libraries and deserves strong support, not only from the library community, but from Australian users generally. They include, but are not confined to, all the elements in the education sector, particularly schools, universities and training institutions and colleges. The public interest issues which I have identified merit consideration at a conference at which users as well as other interest groups are represented.
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