Controlled Digital Lending: Ready for a Close Up?

By Meg White (Director of Vendor Partnerships, the Charleston Hub) <megmwhite13@gmail.com>

In mid-March of 2020, in an airport departure lounge on the way home from Austin and ER&L, I heard a public health official on TV state: “there will not be a person on the planet not impacted in some way by COVID-19.” Naively, I dismissed this statement as just another example of the hyperbole that has become the unfortunate norm for so many media outlets. How could this be? A virus akin to the common cold would spread to every corner of the planet, impacting lives, economies, and society as a whole? Incredibly, in the days and weeks to come, we all gradually came to understand that this virus would launch a pandemic, almost 100 years after the Spanish Flu swept across the globe, and killed more than 6.5 million people.

Historians, public health experts, anthropologists, economist, and researchers of every stripe will study COVID and its impact … some subtle, some not so subtle, and some far too nascent to be fully understood. It seems an over-simplification to say that scholarly communication is not immune from the impact of COVID, but in many ways the ripple effect from the pandemic is still unfolding in the world at large and in our industry. In this issue of Against the Grain, we will focus on exploring Controlled Digital Lending (CDL), a process that has been percolating for more than a decade, but for many reasons has taken center stage in a COVID-influenced landscape.

Background

According to the organization Controlled Digital Lending by Libraries, Controlled Digital Lending (CDL) “… is an emerging method that allows libraries to loan print books to digital patrons in a ‘lend like print’ fashion.” The premise seems simple, the same sections of U.S. copyright law that govern library lending of physical books and materials should apply to digital versions of those same materials. However, the interpretation of U.S. copyright law as applied to digital versions of print materials (and, of course, “born-digital” materials) is relatively new legal territory, and multiple stakeholders have varying views on what rights are held by each party under the law, and how they can best be preserved.

As technology has improved over the last two decades, there have been many initiatives in the march to leverage technology to make scholarly books more accessible and redefine legal boundaries of copyright. Google Books, launched in 2004, worked with libraries and sought to digitize public domain and copyrighted works … allowing users to access full text of public works, while limiting access to works still protected by author or publisher copyright. Challenged for more than a decade in the courts, most recently by the Authors Guild, the Second Circuit Court of Appeals ruled in favor of Google in 2015, affirming that this initiative is allowable under the Fair Use provision of US copyright law. Another initiative, well-known to ATG readers, is the Internet Archive (IA), whose books project defined many of the principles that are associated with CDL today, most notably “own to loan” which limits the number of active digital readers to the number of physical copies in a library’s collection. The Internet Archive has also faced numerous legal court challenges as the law seeks to catch up with the capabilities of technology, the most recent filed in 2020.

Why Now?

Against this backdrop, we have a global shutdown of physical spaces. Overnight, the entire planet came face-to-face with the reality that COVID would force us to find ways to live and work without access to the physical infrastructure and resources that underpin our personal and professional lives. For libraries, the limitations of a physical space with physical objects were exposed in an immediate and urgent manner. Libraries worked as quickly as possible to support remote users and readers, a challenge made exponentially “Overnight, the more difficult by the fact that entire planet librarians were also learning to work within a fully remote environment. came face-toPublishers, libraries, and vendors face with the collaborated to quickly establish reality that and maintain access to the materials needed to continue vital research and education. COVID would force us to

As discussed above, IA and other find ways to initiatives, in addition to policies live and work at some individual libraries, have without access been employing CDL as a tool for more than a decade, operating to the physical under what they perceive is the legal infrastructure framework provided by existing US and resources copyright law. So why did Hachette, Wiley, Penguin, and Harper-Collins choose to file a new challenge to that underpin our personal IA’s Open Library in 2020, a project and professional that had been in existence since 2006? The answer is the removal lives.” of the IA’s “own to loan” limitation from March 2020 – August 2020 in response to COVID under its National Emergency Library initiative. In the “all hands-on deck” emergency, CDL took center stage as a crucial tool to help support the unprecedented challenge of COVID, and in so doing brought the question of interpretation of U.S. copyright law front and center yet again.

Read More in ATG

The above primer focused on some of the legal questions fundamental to CDL and why CDL has emerged as an important topic for multiple stakeholders in scholarly communication. This issue of ATG will explore facets of CDL beyond legal and copyright, looking at library policies and infrastructure, developing standards, the relationship between CDL and Inter Library Loan (ILL), as well as potential risks and unintended consequences. We are grateful to Todd Carpenter, Executive Director of NISO, for his insights and are happy to revisit perspectives on this topic from Lila Bailey, Senior Policy Counsel, Internet Archive, delivered as part of the Charleston Conference in 2021. Happy reading on a topic that is continuing to evolve as we go to press!