Smooth operators? DIA incompetence exposed

Just how competent is management at New Zealand’s Department of Internal Affairs? Christine Dann has been digging, and has some answers:

When Book Guardians Aotearoa (BGA) started questioning the National Library of New Zealand’s (NLNZ)  plan to completely dispose of over 600,000 books (which make up most of the oddly-named Overseas Published Collections/OPC) we were told by the then Minister of Internal Affairs, Tracey Martin, that it was an ‘operational matter’ for Department of Internal Affairs (DIA) management to deal with, and she would not intervene on behalf of the public and our books.

The current minister, Jan Tinetti, fobbed us off with the same ‘operational matter’ line when we began questioning the deal the NLNZ struck with the Internet Archive (IA) in July 2021 to put the books into containers, ship them to Manila to be digitised, and then go on to the law-breaking Open Library website run by the IA.

The mushroom method of ‘consultation’

In making its decisions to dispose of the books in the OPC, and to offer them to the Internet Archive, the NLNZ made no effort to consult with anyone outside the narrow sphere of library management and the management of companies providing digital services to libraries. It claims to have obtained sign-off from the Library and Information Advisory Commission (LIAC), a statutory body appointed by the Minister of Internal Affairs, which meets four times yearly at public expense. But as LIAC has been conducting its business in total secrecy for most of its existence (check its webpage and note the lack of current information) BGA can not verify this claim. However, given the extremely narrow range of expertise and lack of independent thinking which the LIAC commissioners bring to their role of providing advice to the Minister, it seems likely. Of the current six commissioners, only two have worked in libraries (in managerial roles), one is a professor of information management, two are managers of digital organisations, and the sixth one is (you guessed it) also in a managerial role – in the DIA. As is the ex officio member of the committee – the National Librarian.

Making decisions without involving those affected by them is technically known as the mushroom method of consultation – “Keep them in the dark and feed them s**t.” So who should the library managers have been talking to, instead of talking among themselves?

Who should have been consulted

When it comes to the proper management of a collection of books developed at public expense over  eight decades, which contains many rare and valuable volumes, as well as essential works which are now out-of-print and/or not accessible to the general public in any other New Zealand libraries, then the obvious people to consult with are the actual and potential users of the collection. The students, academics, researchers, writers, and voracious readers who value and use the NLNZ’s collections. It is their advice on which of the books are still wanted and needed which should be sought. Since the OPC covers every subject in the Dewey cataloguing system, it is clear that the subject experts among the users must also be consulted on what should be retained and what can be safely disposed of. Finally, if usage of the OPC were really as low as the NLNZ claims it was/is (and BGA has strong doubts about that), surely a good library would be engaging with users and potential users to increase patronage?

When it comes to cutting a deal with a foreign corporation to take away the books and digitise them, New Zealand users of the OPC should certainly have been consulted on whether they wanted to read the real books in New Zealand or would prefer to read grotty digital versions on-line. (And we do mean grotty – check out the bad scans provided by the IA.) They weren’t – and neither were the people who write and publish the books which were and are the basis and raison d’être of every library worth the name. In fact, despite being listed on the NLNZ website as ‘stakeholders’ who should be consulted, the first time the NZ Society of Authors (NZSA), the Publishers Association of New Zealand (PANZ) and Copyright Licensing NZ (CLNZ) heard about it was not even by direct notification but by pure chance, when one of them came across a media statement on the subject on-line in July 2021.

Writing back to power

The three groups immediately wrote to the Minister of Internal Affairs saying they were “shocked to learn on Friday that the National Library apparently plans to handover hundreds of thousands of books from its collection to the Internet Archive.”*

They informed the Minister that:

“The Internet Archive’s scanning and online distribution of books has been condemned internationally as piracy on a massive scale. This activity by the Internet Archive is currently the subject of a major lawsuit from international publishers, representing authors from around the world, and supported by authors groups.

We represent thousands of authors and dozens of publishers from across New Zealand. Our members have themselves encountered their creative works being distributed illegally by the Internet Archive. We have previously documented these infringements to government, as illustrated by the attached letter to Minister Faafoi (sent as part of the Review of the Copyright Act in October 2018).”

They concluded by saying:

“For organisations such as ours to discover a decision of this magnitude for our members by chance and at the last minute (through a media release on Scoop)* underlines the sheer inadequacy of any stakeholder consultation from the National Library. Our members invest vast amounts of time, energy and resource into working alongside New Zealand libraries, including the National Library, to provide readers with access to books. The Internet Archive invests nothing. This plan is an affront to our local creative ecosystem and will satisfy no one.”

Despite the evidence provided of the potential illegality of the government’s action in signing a deal with a known law-breaker, the letter was effectively ignored, since no action to call off the deal was taken.

The three New Zealand organisations were then put to the trouble and expense of obtaining their own legal advice on the matter, and writing a three-page letter to the Minister and the Chief Executive of the DIA which was sent on 15 September 2021. The letter can be read on pages 29-31 of the file of documents relating to the IA contract released under the Official Information Act in January 2022, which are on line here –  https://fyi.org.nz/request/17883/response/69359/attach/4/Documents%20for%20OIA%20release%20Ecclestone.pdf

Their letter documents the ongoing efforts by DIA and NLNZ to continue with (and attempt to justify) disposing of the OPC by giving the books to the IA. It then provides the reasons why this would be illegal as well as undesirable. Problem solved? Alas, no. The government continued to ignore the well-founded advice provided by New Zealand citizen organisations and New Zealand Queen’s Counsels in favour of the flimsy fabulations of the NLNZ’s digital pals. So what could make them see sense if sensible Kiwis could not?

Internet-enabled theft is an international issue

As it (sadly) happens, the abuse of copyright laws via digital means is an international issue. BGA is all in favour of the free flow of information internationally, but that is not the same thing as taking a book in copyright and digitising it without having the right to do so – a right which is usually associated with payments to both the author and the publisher. All bona fide libraries offering e-books obey the law and make such payments; why should the Internet Archive’s Open Library offer spurious justifications for not doing so? (Justifications which are currently being challenged in a US federal court.)

The DIA and NLNZ obviously didn’t want to hear or believe what New Zealanders had to say on this matter. Thus in October and November 2021 the Minister, the National Librarian and the CE of the DIA received a steady stream of correspondence from organisations representing overseas authors and publishers (six in total) and from international publishing houses (nine in total). They all made it perfectly clear that the New Zealand government was not acting legally or morally in giving books to the IA. Below is some of what they said.

It’s illegal, it’s immoral and it makes you…

… an international pariah … pretty much sums up what the overseas authors and publishers had to say to the New Zealand government. First off the blocks was Sir Philip Pullman, writing in his capacity as the then president of the Society of Authors (UK). As someone who is also an extremely good (and hence popular) writer, his way of putting the case is worth reading in full (It’s on p 28 in the collection of letters on the matter here –  https://fyi.org.nz/request/17883/response/69359/attach/4/Documents%20for%20OIA%20release%20Ecclestone.pdf )

 His key points were:

“Libraries are the very heart of a nation and a culture’s knowledge of itself and understanding of the world. It’s impossible to overstate their value. We authors who write the books on your shelves are inveterate, habitual, lifelong users of libraries, and all of us share a gratitude and appreciation of the work that librarians do in preserving our work and promoting reading in every part of society. The one thing that makes this link between us so valuable is our sense that libraries understand the nature of our work, that they know that the vast majority of authors do not make fortunes from their books, that they share with us the belief that a modest but secure reward can be the foundation for works of imperishable greatness.

To find that a great national library like that of New Zealand is collaborating in a scheme to break the cherished copyright laws and give our work away for nothing is profoundly shocking. None of our 11,000+ members have been consulted about this plan or asked for their consent. Digitising old out-of-copyright books is one thing, and we can all see the benefit of that; but taking rightfully earned money out of the pockets of living writers is quite another. Please let us, and writers in every part of the world whose works you are planning to use for nothing, know that you’re going to change your mind about this iniquitous scheme, and return to the principle of paying fairly for the use of our work.”

The publishers and their associations were less loquacious, but equally clear with regard to what had been done wrongly, and what needed to be done to put it right. The core communication in the letters from the publishing houses was this:

“Spread across NLNZ’s Overseas Published Collection are multiple titles and imprints for which we are the copyright owners…. The fact that NLNZ may own a copy of one of our books as part of the OPC does not confer on NLNZ any rights to deal with the copyright in that book as it thinks fit. It is astonishing to us that a supposedly reputable National Library should enter into the above agreement with IA:

(a) Without considering copyright ownership; and

(b) Without seeking prior written clearance from copyright owners for the digitisation of their copyright works and the intended making available of those copyright works to the public.”

“We have taken legal advice and consider that NLNZ is liable for copyright infringement in New Zealand by making the OPC available to IA knowing that these copyright works will be digitised….. Further, the Controlled Digital Lending referred to in NLNZ’s communications is not legal nor within the permitted use provisions for libraries in part 3 of the Copyright Act 1994.”

The international letters start arriving on 30 September 2021 and the last one arrived on 30 November. On 29 November 2021 the NLNZ announced that the IA export deal was called off.

(Or as the National Librarian called it – ‘reconsidered’.)

What NLNZ/DIA should have done and can still do instead

As covered in ‘Who should have been consulted’, above, the first action by any government agency thinking of making major changes to its service(s) should be to talk with the users and suppliers of those services. Library users (and writers of books) are mostly well-informed and intelligent people, who know what they are doing and why they are doing it, and have lots of good ideas on how libraries can help them do it better.

As we have stated numerous times, NLNZ users perfectly understand that not all of the books in the OPC are worth keeping, and are supportive of the usual methods of de-acquisitioning books after making proper assessments of their value and utility to library users. Such methods bear no resemblance whatsoever to throwing out over half a million books at the same time, with no proper checking process in place, grossly insufficient time allocated for the job, and no subject specialists working on it.

In BGA’s view this shows a level of incompetence and dereliction of public duty which has been only further compounded by the failure to follow proper public service process and obtain advice from the Crown Law Office before cutting any deals with a foreign entity to give away the books.

The one scrap of good news is that – thanks to the strenuous efforts by New Zealand and foreign book users and producers – most of the books are still in New Zealand. So it is not too late for the NLNZ and DIA to start acting professionally and responsibly, set up a proper consultation and assessment process, and do the collegial work necessary to make the National Library of New Zealand truly worthy of its name.

_{* This refers to the release put out by BGA on 8 July 2021 – What’s happening to 500,000 books from the National Library? The official NLNZ release did not go on Scoop until July 13 – National Library Signs Historic Agreement With Internet Archive}