Controlled Digital Lending in the Era of COVID 19

Controlled Digital Lending in the Era of COVID 19

Sara Benson's cartoon cardTo read more about Controlled Digital Lending, please see this White Paper by David R. Hansen and Kyle K. Courtney available at

You may also wish to listen to a previous episode of Copyright Chat, where I hosted Mike Furlough as he discussed the HathiTrust Emergency Temporary Access Service

Hello listeners, and welcome to another episode of Copyright Chat. In keeping with the themes of previous episodes during COVID-19, I am doing a solo produced episode, with just myself, Sara Benson, discussing a current, and necessary copyright topic.

So for today’s episode, I actually took to Twitter to ask you, the public, what you wanted to hear about the most. And the two most pressing issues that arose were Controlled Digital Lending, and not far behind, E-Reserves in libraries in the time of COVID-19. So today, I am going to address the first issue, which came up with the most votes in my poll on Twitter: Controlled Digital Lending.

Now I did not come up with the term Controlled Digital Lending. In fact, my colleagues Kyle Courtney and David Hansen wrote a white paper all about Controlled Digital Lending, which I’m linking to from this episode. And based on their understanding of it, and their explanations in the white paper and my own understanding of it, I’m going to explain it to you. And of course, I take no credit for their white paper, of course, and any misunderstanding that I tell you in this podcast episode are my own, but I think I have a pretty good grasp on what they’re arguing and what libraries are operating under when they are engaging in Controlled Digital Lending in the way that, for instance, the Emergency Access Library from HathiTrust is engaging in it. And so, without further ado, let me dive into Controlled Digital Lending from my own understanding.

So first of all, under the copyright act, we have a right of first sale under section 109 of the act. So that’s Volume 17 of United States Code, Section 109. And under the right of first sale, anyone can sell, give away, do whatever they wish, with a book or other item that they purchase in physical format from a publisher or an author. And so when I publish a book, let’s say I’m publishing a current book from the American Library Association, when the ALA sells my book to a reader, the reader then owns that particular copy of the book. And so the reader can lend that book out to friends, the reader could sell that book on Amazon, could put it on their front yard in a little free library, they could sell it in a garage sale, etcetera, etcetera. They own that particular copy of the book, and they have extinguished ownership right of the publisher upon the sale of the book. So the publisher can no longer garner any kind of compensation from lending of the book or the sale of the book, right? So when you sell in your garage sale, you don’t need to offer any remuneration to the author or the publisher at that point. And so, that is what most library lending is occurring under, section 109 of the copyright act. When we purchase a physical book, we lend it out as many times as we would like, and we don’t have to pay any fees for that lending. And that’s the same type of thing that an individual can do in their home library, or little free library, for instance, or the public library, for that matter.

Now important aside is that this has to be from a work that is in print or in a physical format, such as a CD or a DVD. And another aside, or important fact, it does not allow you to make a copy of the work. It allows you to sell that particular work. And so, you don’t own the copyright, right, you can’t do all the things that a copyright owner can do, such as make reproductions, but you have the right to that specific piece of property, that specific book, that specific CD-ROM, that specific painting, or something of that sort. And so, that is a lot of what we do, like I said at public libraries and academic libraries, we lend out the work.

And the reason, I think that we have the right of first sale and it’s so strong is that we understand that a physical work, over time, will deteriorate. Right, so, that physical work doesn’t last forever. Of course we, of course we work very hard in preservation and libraries to preserve the work as long as we can, and we have rights under section 108 of the copyright act that give us rights to make reproductions or copies for the purpose of preservation, which is a whole other story, but we try to preserve the physical work, right, we scotch tape the cover on if we need to, we will help re-bind it if we have to, with the cover, with the binding becomes lose, etcetera. But at some point that physical, those physical page of the book will deteriorate, and so it is not, it cannot be lent indeterminably, forever, right, for an indeterminate amount of time.

So where the right for first sale, the right of fair use begins, right? And the right of fair use is an umbrella, right, that works in operation with our other rights in the library, such as the section 108 rights of reproduction for preservation and inter-library loan, and things like that. Section 108 is, can be independently used, but it also can be one of things that begins when another right ends. So the theory of Controlled Digital Lending says that, if I, a librarian in a particular library have one copy of a physical book, and I do not lend out that physical book, but I lend out a digital reproduction of it that is not further replicable, so it has digital rights management on it, and it can only be viewed by one verified library card holder at a time, then I’m essentially just exercising an extension of that right for first sale, right, I bought this one book, I can lend out this one book as many times as I would like. Now the right of first sale has never been extended in a court or by the Congress to digital works, right, because again, a digital work could be reproduced over and over and over and not necessarily ever deteriorate, which might somehow hamper the right of the copyright owner, right, because they have recovered for one sale, but if you keep that one book forever and lend it out forever and ever, then they never will get those other sales. So that would, at some point end, right, the right of first sale, but then fair use begins. And that’s where Controlled Digital Lending kind of falls, in this gray area in-between section 109 and section 107, which is fair use, saying that, “Hey, we are lending this book for education and research purposes, we are not making any money off of the lending, we’re not replacing the market value for the work, because we did purchase the work, and we would have otherwise been lending out to our users.” And in particular, especially during COVID-19, when we are in a public health crisis, and our public, our patrons, cannot come into the library physically to see the physical, we are going to let them view the book on an emergency basis, digitally.

And so that’s where first sale and fair use meet, and in particular during COVID-19, I think this is a really great argument, because we are trying to protect the public health by not allowing the patrons to borrow the books, and there are risks to borrowing physical books. A lot of libraries are quarantining books after they are returned because they’ve been handled by the patron and germs could spread in that matter, and so they are quarantining the books for up to a week, and so, you have a lag time, and at the same time, really crucial research is going on, right. We are trying very hard, especially at the University of Illinois, which I’m sure you’ve seen our prolific testing that we’ve been engaging in. We’re trying very hard to come up with a vaccine for COVID-19, we’re trying to come up with effective treatments for COVID-19, more effective and quicker testing and more widespread testing. And all of these things are so important for public health and education and research, and if people can’t get to these important resources, these books that are held in our library, they potentially cannot engage in this life saving resource, this life saving research.

And so, the fair use argument is fairly strong right now. I think the fair use argument, in terms of Controlled Digital Lending, can vary, right, the strength of it can vary, right. How, what type of book are you lending this way? Right, is it Harry Potter, or is it, you know, a medical book that’s being used to fight COVID-19? These are very different resources. And then are you limiting the lending to one-to-one ratio, right, which is the idea that we have one book in our possession in the library, so we are lending one copy to one patron at a time. And, if you, say, have five copies of the book, you could potentially simultaneously lend it to five users. And then of course taking those measures to make sure that the book cannot then be further distributed from that patron to other people, right, making sure that the book is controlled in terms of digital rights management, so that, when that patron checks out the book, they are unable to further lend it to other people.

And so, I think, like I said, that there is a very strong fair use argument, especially during COVID-19 for things like the HathiTrust Emergency Lending, emergency access, and I know other libraries are also engaging in their own version of this with their own locally sourced digital copies that have Controlled Digital Lending on them, such as lending to one patron at a time with digital locks and things like that. And that is the theory behind it. Like I said, I’m also going to attach the link to the white paper, and I encourage you to look at it, and I believe that I have had, in fact I know I have had previous episodes of this very copyright chat where I’ve discussed Controlled Digital Lending, and I will encourage to go back and listen to the episode with Mike Furlough who is executive director of the HathiTrust digital library, if you’d like further information about that. And I hope you found this explanation helpful and useful, and that it makes some sense to you as to where this theory comes from. And I’m happy to engage with E-Reserves in another episode, as I had a lot of interest in that as well, so take care, be safe, and I will talk to you soon.

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