From free-rides to private ordering in digital markets: exploring the boundary between academic library licensing practices and copyright exceptions

Author: Olivier Charbonneau

Proposed abstract for the 20TH International Conference on Cultural Economics, Melbourne, 26-29 June 2018

Educational institutions and their libraries benefit from a variety of exceptions to copyright in most jurisdictions around the world (Crews, 2015). The exceptions are seen as essential to fulfilling the social mission of these state sponsored institutions (Hirtke, Hudson & Kenyon, 2009; Larivière, 1989; Gordon, 1982). Despite this, exceptions to copyright introduce some conceptual difficulties in law and economics, both on the normative (desired institutional arrangement) and positive (describing these in economic terms) levels (Elkin-Koren, Salzberger, 2013).

Drawing from internormative contract theory (Belley), cyberspace law (Trudel) as well as economic analysis of law (Maackay), our study attempts to address positive and normative issues of the role of libraries and copyright exceptions in cultural economics. Over the past years, academic libraries have shifted their collection development practices from print resources to digital, licenced products (Farb, 2006; Waller, Bird, 2006). In order to manage the access rights to these digital works, Librarians have devised metadata standards to describe the terms of use they can bestow on their user communities (Maurel, 2007). This mechanization and computerization of private ordering (Garnett, 2006; Mountain, 2003; Gillette, Radin, 2000) offers the raw data required to perform a positive analysis of current licensing practices. It allows us to observe the emergence of new institutional structures.

In order to conduct our study, We have filed access to information requests to all public Universities in Québec, Canada. In turn, we have obtained of over 700 metadata records, all using a common data dictionary, describing licences from four (4) University Libraries. We then have used these records to perform, using descriptive statistics, positive analysis of private ordering practices of academic libraries. In addition, we have compared the results with copyright exceptions and have observed significant overlap between terms negotiated by licence and copyright exceptions enacted by the Canadian Parliament. We conclude that, on the normative level, this overlap indicated a willingness of libraries to codify their social mission in two distinct social systems (Luhmann, 2004), that of markets as well as that of public law. In that sense, copyright exceptions signal to rightholders meaningful market based solutions to their social mission (Yoo, 2007) rather than seeking free-rides.

Our study contributes to cultural economics by addressing the normative and positive issues of copyright exceptions bestowed upon cultural institutions and how they engage with markets of digital works. It was conducted as part of a doctoral thesis in law at the Université de Montréal, under the supervision of professor Pierre Trudel, successfully defended in September of 2017. The data set and thesis will be posted o the Internet as soon as the degree is conferred to the author of this paper. We are now applying the results to a new class of cultural works or goods, namely in designing new institutional arrangements to make digital games available to public libraries using cryptocurrency technology. We would like to thank the Knight Foundation for their generous support to our project.

Full references of this abstract are available here: http://www.culturelibre.ca/recherches-juridiques/2018-acei/ 

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