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library .edu
the newsletter of the Swarthmore College Libraries
Fall 2012 Vol.15, no. 1
Library ebooks: Licensing and ownership by Lucy E. Saxon
American libraries are currently facing an important challenge: to implement a system of lending ebooks that is simple for readers in the short term, in which libraries maintain enough control over their collections to serve our readers and institutions well in the long term. Many electronic library materials (including many ebooks) are licensed rather than bought, and when libraries do not own content, they often have less control over the content that they provide. Even in cases where libraries own electronic books outright, they may have fewer rights to use the materials than they would to printed works. While electronic content can theoretically be easily replicated, in practice and law, licenses and contracts can be restrictive compared to the rights afforded to the rights of print book and journal owners, especially libraries, under copyright law. What is fair use? Fair use doctrine is the provision of copyright law that allows us to reproduce copyrighted material for the purposes of “criticism, comment, news reporting, teaching, scholarship, and research.” However, such use must be balanced against four factors, enumerated by the U.S. Copyright Office: 1. purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes 2. The nature of the copyrighted work 3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole 4. The effect of the use upon the potential market for, or value of, the copyrighted work. (U.S. Copyright Office, 2012)
This is the legal basis that allows for copying and printing from library books, including ebooks. Because digital reproduction is so easy and flawless, ebook providers have taken it upon themselves to limit reproduction and printing of their products. This limitation is accomplished by dint of Digital Rights Management (DRM), software that limits how users
can access content, and backed up legally by a contract. More on that below. What is First Sale Doctrine? First Sale Doctrine is the legal basis for libraries to lend books despite not owning copyrights to them.
The first sale doctrine is a principal tenet on which many library operations are based. It “holds that a copyright owner’s exclusive right to distribute extends only to the first sale of a copy.” Once a copy of a work is sold, the new owner of that physical copy is allowed to dispose of that one copy as he or she wishes. He or she can sell it to a used book store or give it away to a friend. If the new owner is a library, it can loan it to as many patrons as it wishes, as often and for as long as it likes. (Ou, 2003)
Unfortunately, there is currently no broadly accepted understanding of First Sale Doctrine as applied to digital materials, continued on page 3