Libraries Are Updating for Today’s Digital Needs. Congress Needs to Clear the Way.July 1, 2020
Libraries have been central to culture, education, and research for centuries. Libraries have been part of America since the early 18th Century; the most famous early American library, (though not the first), was founded by Benjamin Franklin and others in Philadelphia in 1731. Libraries have taken many shapes — they’ve been public and private; membership-based and open to anyone; standalone organizations and affiliated with schools, universities, and churches.
Libraries have been connected to the system of copyright laws just as long. Book publishers are still required to deposit copies of their books for the use of the Library of Congress. Under copyright’s first sale doctrine, libraries do not need special permission (i.e. a license) to lend out books to the public. Anyone who owns a copy of a book is free to dispose of it however they want, including by lending it out. Copyright grants to authors the right to make and distribute new copies, but not the right to control how those copies are used once purchasers (including libraries) get a hold of them. For hundreds of years, this system has nicely balanced the rights of authors with the right of people to freely use their physical property as they please.
This balance, however, has been challenged by the rise of the digital distribution of content, and people’s need to access copyrighted content on all kinds of devices. In the digital context, the “copy” of a copyrighted work is usually no longer a discrete physical item like a record or a book; instead, the “physical” copy is the physical space the file occupies on a hard drive or storage media. The first sale doctrine still applies — it remains lawful to lend or sell someone your phone or laptop, including all the copies of copyrighted works that are installed on it — but, as a practical matter, there’s no way to “lend” someone a copy of a song or an ebook stored on your phone. Getting a copyrighted work from one person to another in a digital age almost always involves making copies (even if those copies are automatically deleted by the software afterwards). Just making a physical copy useful for many people, such as allowing it to be read on a tablet or ereader, or making it searchable, will involve making a copy of it. The first sale doctrine does not directly apply to these activities.
Many libraries have found a solution, at least when it comes to making physical books available digitally. This system is called Controlled Digital Lending (CDL). Libraries have a strong argument that fair use makes it possible to make an electronic copy of a book, and allow someone to “borrow” it, to the extent that such copying simply replicates what would have been possible with physical books under first sale. Under CDL, a digital copy of a physical book can only be read and used by one person at a time. While it is being “lent” electronically, a library engaged in CDL would take the physical book out of circulation, and only one person can “borrow” an electronic book at once. Since any of the copies made under this system necessarily cannot have an effect any different than normal lending could, libraries are on pretty solid ground that these acts of copying are fair uses.
But CDL only gets you so far. While it works with physical books, electronic materials often come with licensing and contract terms, as well as copy-prevention technology, that set highly specific conditions on how the library can lend it out. Certainly, some libraries buy special library editions of books and have various library-specific arrangements with publishers — but they don’t have to. With physical books, libraries are free to buy a book at any bookstore, or take books via donation, and lend them out freely as part of their collection. With electronic materials, libraries generally have to buy licenses for special, restricted library editions, that carry significant usage restrictions and might even expire over time or cause the files to “self-destruct” after a set number of loans.
It’s time for Congress to step in and clarify that libraries should be as free to buy and lend books today as they have been for centuries. We need legislation that ensures that libraries are free to buy ebooks and other electronic materials and lend them out, just as they can with physical media. A library should have the right to simply purchase an ebook at its mass market retail price, and then check it out to patrons one at a time. Licenses for library ebooks shouldn’t expire, and they shouldn’t carry restrictions that prevent libraries from carrying out their educational and archival missions. This legislation should also clarify that existing CDL programs for physical media are lawful, to avoid costly litigation over the fair use arguments.
Legislation of this kind would help libraries continue their mission of making books available to all people. It would not represent a radical change to how libraries work and how they obtain materials. It would simply return to the earlier status quo, by allowing libraries to continue functioning as they always have, but updated for today’s needs and technology.
Legislation designed to promote the mission of libraries in the 21st century could do other things, as well. Libraries should be able to archive and make available copies of works where the copyright owner cannot be found, for instance, and should be free to make archival copies of all kinds of works (video games, software, streaming videos, and so on) for research and preservation purposes. Libraries should never be hindered by digital locks or one-sided contract terms that prevent them from preserving, archiving, and making works available and useful.
Copyright can be a contentious topic, and copyright reforms are hard to pass. Most serious copyright reform efforts are aimed at strengthening copyright protections, which can make works less available, and make the mission of libraries even harder. Perhaps as a first step towards rebalancing copyright, we can work to make sure libraries can continue their indispensable mission.
Image credit: Vacio on Wikimedia Commons
About John Bergmayer
John Bergmayer is Legal Director at Public Knowledge, specializing in telecommunications, media, internet, and intellectual property issues. He advocates for the public interest before courts and policymakers, and works to make sure that all stakeholders — including ordinary citizens, artists, and technological innovators — have a say in shaping emerging digital policies.