7 minute read
The “C” Stands for “Controlled”
By Meg White (Director of Vendor Partnerships, the Charleston Hub) <megmwhite13@gmail.com>
Every industry, every discipline, and every friend group seems to have its own unique vernacular … those words or abbreviations that are so well-known, they are easily recognized and understood by members of the community. Think of the alphabet soup word scramble that has become commonplace in everyday life: TIA, LMK, LOL. The meaning of these phrases is often so well understood that we cease to recall the real words behind the shortcut, and the abbreviations take on their own identity and meaning. In the case of CDL, libraryspeak for Controlled Digital Lending (and not California Digital Library or Commercial Drivers’ License) the use of the word “controlled” contributes significantly to the practice of sharing digital copies of owned materials. In fact, CONTROLLED as part of the title that is descriptive of this practice is at the core of ensuring that CDL is supported and protected by U.S. copyright law. And this assertion simultaneously places responsibility for “control” into the scholarly communication landscape. CDL is defined by Controlled Digital Lending by Libraries as “an emerging method that allows libraries to loan print books to digital patrons in a “lend like print” fashion.” On its face this definition seems simple and derives its legal protection from the same U.S. copyright law that allows libraries to loan physical materials. CDL enables libraries to loan digital copies of owned materials, in and out-of-copyright, while maintaining a 1:1 relationship of “owned-to-loaned.” CDL does not allow sharing of licensed materials, and according to Controlled Digital Lending by Libraries “is not intended to act as a substitute for existing electronic licensing services offered by publisher.” Proponents maintain that CDL is an extension of rights defined by existing copyright law and enables libraries to use technology to expand the content in their physical collections that is available to their users.
Some copyright holders disagree, arguing that CDL violates and undermines the rights and interests, financial and otherwise, of publishers and authors. These groups maintain that the making and sharing of a digital copy exceeds the First Sale and Fair Use sections of U.S. copyright law and undermine the economic and ownership rights of content creators and/or copyright holders. The most recent challenge to CDL is a complaint filed in 2020 by a group of publishers against the Internet Archive, one of the earliest and most high-profile adopters of CDL. Hachette Book Group vs. The Internet Archive challenges the legality of CDL and, while in the discovery phase, is likely to wind its way through the courts well into the future. For those interested in digging deeper into the library perspective on the legal framework of First Sale and Fair Use and how U.S. copyright law relates to CDL, David R. Hansen & Kyle K. Courtney have authored an in-depth Whitepaper on this topic.
Who is in Control?
While the courts decide how U.S. copyright law applies to new technologies for formats outside of the physical ones on which it was based, what are the options, if any, for libraries to employ CDL as a means of serving their users and readers? If the courts side with the proponents of CDL, agreeing that digital versions are in fact representations of owned materials and governed by the same laws, is this issue settled? Agreement in principle about the legality of CDL is just the beginning … in practice the processes and policies around exerting the CONTROLLED portion of CDL to ensure compliance with U.S. copyright law are not trivial. Libraries have traditionally been good stewards in the effort to protect copyright, but using CDL as a tool for providing access introduces additional responsibilities for enforcement and protection of publisher and author rights on libraries and the U.S., increasing their potential risk.
Controlled Digital Lending by Libraries defines some of the required parameters for CDL, chief among them the “use of technical controls to ensure a consistent ‘owned-to-loaned’ ratio,” mandating that a library only simultaneously circulate the exact number of copies of a title that they own in print; meaning at any given moment, access in any format is directly tied to the number of physical copies owned by the library. The definition further states that the library must “put controls in place to prevent users from redistributing or copying the digitized version.” And here is where things get interesting or complicated, depending on your point of view. The good news is that the technology (primarily DRM and concurrent user access) exists to allow for CONTROL in controlled digital lending, but the not-so-good news is that few libraries have the technology, tools or infrastructure to enforce copyright in such a distributed environment. The tools to implement CDL in a manner that honors the rights of all stakeholders are not necessarily prevalent in the landscape or accessible to many libraries.
Currently, CDL infrastructure is supported primarily by consortia, with groups collaborating to share collections across their membership. The Boston Library Consortia, as a part of their CDL implementation, released a guide entitled Consortial CDL: Implementing Controlled Digital Lending as a Mechanism for Interlibrary Loan for other groups as well as individual libraries interested in using CDL as a tool. The Virtual Library of Virginia (VIVA), the state’s academic library consortia, has adopted CDL as a service to its members, and individual academic libraries including UC Berkeley and the University of Florida are using CDL to support eReserves, extending their reach to users for whom the library has become what they are able to access on their desktop or phone. Common among all of these initiatives is a core belief that CDL is permissible under the “owned-to-loaned” framework, if the library can take steps to enforce existing access, reproduction, and usage rights to be compliant with the First Sale and Fair Use sections of U.S. copyright law.
Some library service providers and vendors have also begun work to support CDL … deploying existing concurrent user and DRM technology to enable interlibrary loan (ILL) and course reserves, no doubt in response to customer demand. Primarily focused on eBooks, CDL “dashboards” support local preferences and workflow preferences for CDL; titles to be included, length of “check out,” and wait list management are configurable to help libraries manage and control CDL. However, in considering adding CDL as service, libraries should be mindful of the resources necessary to support and manage these programs, even aided by tool sets, as well as the potential legal risk as the courts have yet to decide whether CDL is a right guaranteed under U.S. copyright law.
For CDL to become a common practice in scholarly communication, the industry needs a common understanding of best practices and the framework needed to support these practices. Enter NISO. In January 2022, the standards organization formed a working group to “develop a consensus framework in support of controlled digital lending of book content by libraries, to be published as a NISO recommended practice.” Importantly, NISO recognized the need to create the standard for an “Interoperable System of Controlled Digital Lending” … but also specifically states that the outcome of the working group will be a “natural extension of rights held and practices undertaken by library for content they legally hold” moving forward to help define the future, based on the assumption that CDL will be found to be a legal practice under U.S. copyright law.
For libraries, the desire to explore CDL is heightened by potential benefits to their users … first and foremost by removing the limitations inherent in physical location(s). If CDL is deemed within the boundaries of the law, (and while not explicitly stated previously, the legal discussion of CDL applies only in the Unites States, as copyright law varies greatly in individual countries) implementation by libraries will require increased investment in technology, developed locally or purchased as a tool, as well as heightened vigilance to enforce copyright in a greatly expanded digital arena. Libraries should be mindful that the “C” in CDL stands for CONTROLLED, and the expectation is that they will be accountable not only for lending, but also for ensuring that they have the processes and technology in place to protect the rights of all involved.
