Prof. Randal C. Picker, University of Chicago Law School
January 7, 2014

If you have been following this blog carefully, you know that I have been preparing for my first day of my Winter 2014 Copyright course through a series of blog posts (here, here, and here, and you can see the syllabus for the course here).  Today is that day and yet I sit at home grading Antitrust exams.  Chicago is especially frigid today (-15 degrees temperature on waking) and the University has cancelled classes for the day.  Copyright now will start on Wednesday.

Part of what I hope to accomplish on Day 1 is to make clear the difference between use rules and access rules.  That is an ongoing part of my copyright scholarship (see here and here for versions of that), but the issue has come up again recently in a controversy regarding efforts by the U.S. Department of Defense to digitize an archive of images that it controls.

Start with access vs. use and then turn to the DOD controversy.  In the main, U.S. copyright law defines a set of rules for allowed and disallowed uses.  As the copyright owner, under Section 106 of the statute, I control a series of rights, including the right to make copies, to make derivative works, to control distribution of copies, and more.  The statute also limits those rights in a number of ways, including the important fair-use exclusion set forth in Section 107 of the statute.

But that set of rules doesn’t guarantee any access to the underlying work or the physical objects in which it might be embodied.  Other rules, including the ordinary rules for physical property but other laws as well, will determine whether I can gain access to the copyrighted work.  The use rules of copyright and the access rules of other law are just separate, sometimes overlapping, systems.

On Dec. 21, 2013, boingboing, a prominent news site on Internet culture and more, reported that DOD had entered into a 10-year deal for the digitization of a DOD image archive.  As the headline put it: “US Department of Defense’s public domain archive to be privatized, locked up for ten years.”

We should unpack that briefly.  Under Section 105 of the U.S. copyright statute, works of the U.S. government receive no copyright protection and are thus understood to be in the public domain.  But the fact that anyone is free to use those works without infringing copyright doesn’t mean that we have ready access to those works.  The point of the DOD’s digitization project is to boost that access.  DOD appears to be giving access to those images to a private firm to do the digitization so as to reduce spending tax dollars on the project, but, in exchange, DOD is giving the contracting firm exclusive rights to those digitized images for a period of time.

I want to highlight a few of the trade-offs in that arrangement, so consider some of the possibilities.  DOD could just do the digitization itself or could hire an outside firm to do that digitization if DOD believes that it doesn’t have the relevant expertise.  DOD buys from outsiders all of the time and pays for that through defense appropriations tied to general taxes.  DOD could do the digitization or pay for it directly and make the images available for free.

The advantage of that approach would be to maximize the use of the digitized images.  The images themselves are public goods – meaning that my use doesn’t interfere with your use – and a positive price for the digitized images would prevent uses by individuals or firms that value the use for less than the fee being charged.  We would like to avoid losing those uses.

That is the standard analysis, but I think that the analysis is meaningfully more complicated here.  Of course, having the DOD pay means paying for the digitization through general tax revenues.  Taxes also distort behavior – a general point – but I am more concerned here with a different angle, call it the risk of over-digitization.  The problem with paying for services with general taxes is that it makes it much more difficult to organize opposition to particular uses of those tax revenues.  Blocking a particular use of tax revenues may not actually mean that taxpayers pay less, so they may have weak incentives to try to block any particular use of tax revenues.

Interested users of the images will press the Department of Defense to digitize these works and make them available for free.  In contrast, the people who will bear the cost of digitization – you and me – will be poorly organized and not well situated to oppose digitization.  Like many decisions made by the government, with free access paid for out of general tax revenues, we don’t have a good mechanism for assessing whether the social value for digitizing the archive exceeds the costs of doing so and, for the reasons given, the political process is likely to be sharply distorted in favor of digitization.

Here is where introducing a third party may be socially valuable.  A private third party will have profit-maximizing motives in mind and will only be willing to digitize in those circumstances where it thinks it can recover the cost of it digitization through user fees.  The advantage of a user-fee regime, whether done by private parties or by the Department of Defense, is precisely that we get market feedback on how valuable the digitization is.  A user-fee regime operates as a check against the over-digitization that might otherwise evolve when projects are financed through general tax revenues.

These are complex waters. You might run the same analysis as to public libraries or similar services, so my point here isn’t to resolve these issues in the abstract but to suggest that the trade-offs involved – underuse vs. over-digitization – are more complex than I believe is often recognized.