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Controlled digital lending

December 18, 2023

Controlled digital lending (CDL) is a model by which libraries digitize materials in their collection and make them available for lending. It is based on interpretations of the United States copyright principles of fair use and copyright exhaustion.

Representation of Controlled Digital Lending process

Proponents argue that CDL is legal under those principles because it relies on digital rights management (DRM) to ensure that any library-owned digitized work that is in copyright is loaned for a limited period of time, and that a one-to-one ratio of owned copies to borrowers is maintained. Opponents criticize this interpretation, arguing that CDL involves copying, not mere lending, and that a library's purchase of a physical book does not entitle it to produce and lend an e-book or distribute digital copies.

Development edit

A precursor to CDL was the "Digitize and Lend" program begun in 2011 by the Open Library, a program of the Internet Archive. Also in 2011, the basic principles of CDL were articulated by Michelle Wu in her paper Building a Collaborative Digital Collection: A Necessary Evolution in Libraries.[1] The use of the term "Controlled Digital Lending" to refer to this concept first appeared in the Position Statement on Controlled Digital Lending, published in 2018[2] alongside a white paper explaining their legal arguments.[3]

CDL is increasingly being considered by a number of libraries and is being followed by library organizations across the United States[4] as well as in other countries.[5][6] Brazilian experts have argued that CDL can be applied in the country through a systematic interpretation of cultural rights that extrinsically limits copyright.[7] The Internet Archive has gathered together 12 stories from their blog about libraries that are engaged in aspects of CDL.[8] Lisa Petrides argues that in terms of school libraries, CDL is a positive step forward, but does not go far enough.[9]

In May 2021, the International Federation of Library Associations and Institutions (IFLA) stated that "there is a strong socio-economic case" for CDL; that CDL respects "a number of desirable and widely-recognised principles [...] (libraries' ability to freely acquire and lend, the technological neutrality of law, the possibility to combine exceptions)"; that CDL's legal basis supports the wider public interest.[10]

Mechanism edit

One of the core activities of a library is to loan materials, and proponents argue that CDL is a modern digital extension of this function. With CDL, a library takes a physical copy of a legally acquired item and digitizes it. After digitization, DRM is applied to the digital version, and the physical item is then made unavailable for loan. The library catalog record is usually the mechanism to give access to the digital loan, so the record is changed to point to the repository where the digital copy resides. In this way, there is only one copy being loaned for each copy owned by the library. After the loan expires, the DRM software removes the previous borrower's access and the book is available for loan to another patron.[11]

The National Writers Union, an opponent of CDL, argues that CDL is not like lending, which does not require copying, and dispute the claim that only one copy at a time is available for reading. They say that CDL involves first making an unauthorized digital copy of a printed edition of a work, and then making an additional unauthorized digital copy for each "borrower". They also argue that unencrypted digital copies are distributed for viewing in a Web browser, and that these copies can be retained, viewed, or printed from the browser cache even after the e-book is marked as "returned" and is available for "lending" to other readers.[12]

Controversy edit

Authors' and publishers' groups have questioned the copyright interpretations that underlie CDL.[13] In early 2019, the National Writers Union and a coalition of forty national and international organizations and federations of writers, photographers, visual artists, translators, publishers, and reproduction rights organizations released a statement entitled "Appeal from the victims of Controlled Digital Lending (CDL)" [14] that claimed that CDL "violates the economic and moral rights of authors."

In a news article in Publishers Weekly[15] The American Association of Publishers is quoted as stating that CDL "'denigrates' the incentive copyright provides for authors and publishers." The Authors Guild relies on the case of Capitol Records, LLC v. ReDigi Inc., which established that ReDigi could not resell digital music, to argue that libraries would similarly be prohibited from loaning digitized version of books that were legally purchased, and argues that CDL results in lost sales.[16]

Various scholars have framed the Capitol Records, LLC v. ReDigi Inc. as leaving room for CDL as part of a library's non-profit, educational mission. For example, the opinion, authored by Judge Pierre N. Leval, found ReDigi had no actual control of the digital music being sold (licensed iTunes mp3's) and that ReDigi "made reproductions of Plaintiffs' works for the purpose of resale in competition with the Plaintiffs' market for the sale of their sound recordings." Various scholars have pointed out that libraries are not selling works in direct competition with publishers, like the Defendant in ReDigi.[17][18] Libraries are purchasing books from the marketplace in order to loan the books to their patrons. Additionally Judge Pierre N. Leval, also the originator of the doctrine of transformative fair use, explained in the opinion that a use can be transformative when it "utilizes technology to achieve the transformative purpose of improving delivery of content without unreasonably encroaching on the commercial entitlements of the rights holder." Again, analyzing this language from the case, some scholars have asserted that CDL does not unreasonably encroach the market for these books any differently than the legal uses already permitted by the copyright law when libraries loan books physically.[17][19]

In Hachette Book Group, Inc. v. Internet Archive, 542 F.Supp. 1156 (2023), the United States District Court for the Southern District of New York determined that the Internet Archive committed copyright infringement by scanning and distributing copies of books online. Stemming from the creation of the National Emergency Library (NEL) during the onset of the COVID-19 pandemic, publishing company Hachette Book Group alleged that the Open Library and the National Emergency Library facilitated copyright infringement. The case involves the fair use of controlled digital lending (CDL) systems.

On March 25, 2023, the court ruled against Internet Archive, which plans on appealing.[20] On August 11, 2023 the parties reached a negotiated judgement. The agreement prescribes a permanent injunction against the Internet Archive preventing it from distributing the plaintiffs books as well as an undisclosed payment to plaintiffs. The agreement also preserves the right for the Internet Archive to appeal the previous ruling.[21]

See also edit

References edit

  1. ^ Wu, Michelle M. (2011). (PDF). Law Library Journal. 103 (4): 527–551. 2011-34. Archived from the original (PDF) on 2015-10-30. Retrieved 2019-08-02.
  2. ^ Bailey, Lila; Courtney, Kyle K.; Hansen, David; Minow, Mary; Schultz, Jason; Wu, Michelle (September 2018). "Position Statement on Controlled Digital Lending - Statement on Controlled Digital Lending by Libraries". Controlled Digital Lending by Libraries. from the original on 2019-08-02. Retrieved 2019-08-02.
  3. ^ Hansen, David R.; Courtney, Kyle K. (2018). "A White Paper on Controlled Digital Lending of Library Books". Controlled Digital Lending by Libraries. from the original on 2019-08-02. Retrieved 2019-08-02.
  4. ^ Enis, Matt. "Controlled Digital Lending Concept Gains Ground". Library Journal. from the original on 2019-12-04. Retrieved 2019-12-04.
  5. ^ Price, Gary (2019-10-16). "Controlled Digital Lending in Canada: "Protecting Unique Canadiana Works" at the Hamilton Public Library". Infodocket. Library Journal. from the original on 2019-12-05. Retrieved 2019-12-05.
  6. ^ Mounce, Ross (2018-08-20). "A new digitisation opportunity for UK university presses". Research Libraries UK. from the original on 2019-12-05. Retrieved 2019-12-05.
  7. ^ Couto, Walter Eler do; Ferreira, Sueli Mara Soares Pinto (2020-12-23). "Empréstimo Digital Controlado e direitos autorais no Brasil: algumas reflexões iniciais". Liinc em Revista. 16 (2): e5378. doi:10.18617/liinc.v16i2.5378.
  8. ^ Adams, Caralee; Bailey, Lila; Freeland, Chris. "Transforming Our Libraries: 12 Stories About Controlled Digital Lending" (PDF). controlleddigitallending.org. (PDF) from the original on 2019-12-05. Retrieved 2019-12-05.
  9. ^ Petrides, Lisa. "Why Controlled Digital Lending Matters to Schools". ISKME. from the original on 2019-12-05. Retrieved 2019-12-05.
  10. ^ "IFLA Statement on Controlled Digital Lending". IFLA. 2021-06-22. from the original on 2021-06-17. Retrieved 2021-08-03.
  11. ^ "Controlled Digital Lending: an Interview with Jonathan Band". International Federation of Library Associations. from the original on 2019-12-04. Retrieved 2019-12-04.
  12. ^ National Writers Union; et al. (2019-02-13). "FAQ on Controlled Digital Lending (CDL)". National Writers Union.
  13. ^ McKay, John, ed. (2019-02-04). "Statement on Flawed Theory of "Controlled Digital Lending"". Association of American Publishers (AAP). from the original on 2019-08-02. Retrieved 2019-08-02.
  14. ^ "Appeal from the victims of Controlled Digital Lending (CDL)". National Writers Union. 2019-02-13. Retrieved 2019-12-04.
  15. ^ "Publisher, Author Groups Protest Library Book Scanning Program". Publishers Weekly. from the original on 2019-12-04. Retrieved 2019-12-04.
  16. ^ Hruska, Joel. "The Authors Guild Declares War on Digital Library Lending, Libraries". ExtremeTech. from the original on 2019-12-05. Retrieved 2019-12-05.
  17. ^ a b Wu, Michelle M. (2019). "Revisiting Controlled Digital Lending Post-ReDigi". First Monday. 24 (5). Retrieved 2020-02-11.
  18. ^ Courtney, Kyle K. (2020). "Libraries Do Not Need Permission To Lend Books: Fair Use, First Sale, and the Fallacy of Licensing Culture". Medium. from the original on 2021-02-11. Retrieved 2020-02-11.
  19. ^ Hansen, David R.; Courtney, Kyle K. (2020). "Fair Use, Innovation, and Controlled Digital Lending". Fair Use Week Blog. from the original on 2019-03-01. Retrieved 2020-02-11.
  20. ^ Jay Peters, Sean Hollister (2023-03-24). "The Internet Archive has lost its first fight to scan and lend e-books like a library". The Verge. Retrieved 2023-08-05.
  21. ^ "Publishers and Internet Archive Submit Negotiated Judgment with Permanent Injunction to District Court in Hachette Book Group, et al, v. Internet Archive". publishers.org. Association of American Publishers. Retrieved 2023-08-15.

Further reading edit

  • McCleskey, Sarah E.; Selby, Courtney (2018). "Tried and True: Fair Use Tales for the Telling". Journal of Copyright in Education & Librarianship. 3 (1). doi:10.2139/ssrn.3256427. SSRN 3256427.
  • Peterson-Lugo, Billie. "Tech Talk" (PDF). Library Instruction Round Table News. American Library Association. pp. 9, 22–28. Retrieved 2019-12-05.
  • Sheppard, Adrian; Bailey, Lila; Katz, Ariel; Mills, Andrea; Slaght, Graeme (2018-05-31). Controlled Digital Lending (CDL): A Panel to Discuss Legal and Practical Considerations Involved in the Implementation of CDL by Public and Post-Secondary Libraries in Canada. ABC Copyright Conference 2018. Harbour Centre, Vancouver: Simon Fraser University (SFU). Retrieved 2019-08-02.
  • Wu, Michelle M. (2016-09-12). "Collaborative Academic Library Digital Collections Post-Cambridge University Press, HathiTrust and Google Decisions on Fair Use". Journal of Copyright in Education & Librarianship. 1 (1). doi:10.17161/jcel.v1i1.5921.
  • Wu, Michelle M. (2019-02-04). "Revisiting Controlled Digital Lending Post-ReDigi". First Monday. 24 (5). doi:10.2139/ssrn.3328897. S2CID 219360414. SSRN 3328897 – via SSRN Electronic Journal.
  • Wu, Michelle M. (2019-07-03). "Shared Collection Development, Digitization, and Owned Digital Collections". Collection Management. 44 (2–4): 131–145. doi:10.1080/01462679.2019.1566107. S2CID 218574586.

External links edit

  • "Controlleddigitallending.org". Controlled Digital Lending by Libraries

December 18, 2023
controlled, digital, lending, model, which, libraries, digitize, materials, their, collection, make, them, available, lending, based, interpretations, united, states, copyright, principles, fair, copyright, exhaustion, representation, controlled, digital, lend. Controlled digital lending CDL is a model by which libraries digitize materials in their collection and make them available for lending It is based on interpretations of the United States copyright principles of fair use and copyright exhaustion Representation of Controlled Digital Lending processProponents argue that CDL is legal under those principles because it relies on digital rights management DRM to ensure that any library owned digitized work that is in copyright is loaned for a limited period of time and that a one to one ratio of owned copies to borrowers is maintained Opponents criticize this interpretation arguing that CDL involves copying not mere lending and that a library s purchase of a physical book does not entitle it to produce and lend an e book or distribute digital copies Contents 1 Development 2 Mechanism 3 Controversy 4 See also 5 References 6 Further reading 7 External linksDevelopment editA precursor to CDL was the Digitize and Lend program begun in 2011 by the Open Library a program of the Internet Archive Also in 2011 the basic principles of CDL were articulated by Michelle Wu in her paper Building a Collaborative Digital Collection A Necessary Evolution in Libraries 1 The use of the term Controlled Digital Lending to refer to this concept first appeared in the Position Statement on Controlled Digital Lending published in 2018 2 alongside a white paper explaining their legal arguments 3 CDL is increasingly being considered by a number of libraries and is being followed by library organizations across the United States 4 as well as in other countries 5 6 Brazilian experts have argued that CDL can be applied in the country through a systematic interpretation of cultural rights that extrinsically limits copyright 7 The Internet Archive has gathered together 12 stories from their blog about libraries that are engaged in aspects of CDL 8 Lisa Petrides argues that in terms of school libraries CDL is a positive step forward but does not go far enough 9 In May 2021 the International Federation of Library Associations and Institutions IFLA stated that there is a strong socio economic case for CDL that CDL respects a number of desirable and widely recognised principles libraries ability to freely acquire and lend the technological neutrality of law the possibility to combine exceptions that CDL s legal basis supports the wider public interest 10 Mechanism editOne of the core activities of a library is to loan materials and proponents argue that CDL is a modern digital extension of this function With CDL a library takes a physical copy of a legally acquired item and digitizes it After digitization DRM is applied to the digital version and the physical item is then made unavailable for loan The library catalog record is usually the mechanism to give access to the digital loan so the record is changed to point to the repository where the digital copy resides In this way there is only one copy being loaned for each copy owned by the library After the loan expires the DRM software removes the previous borrower s access and the book is available for loan to another patron 11 The National Writers Union an opponent of CDL argues that CDL is not like lending which does not require copying and dispute the claim that only one copy at a time is available for reading They say that CDL involves first making an unauthorized digital copy of a printed edition of a work and then making an additional unauthorized digital copy for each borrower They also argue that unencrypted digital copies are distributed for viewing in a Web browser and that these copies can be retained viewed or printed from the browser cache even after the e book is marked as returned and is available for lending to other readers 12 Controversy editAuthors and publishers groups have questioned the copyright interpretations that underlie CDL 13 In early 2019 the National Writers Union and a coalition of forty national and international organizations and federations of writers photographers visual artists translators publishers and reproduction rights organizations released a statement entitled Appeal from the victims of Controlled Digital Lending CDL 14 that claimed that CDL violates the economic and moral rights of authors In a news article in Publishers Weekly 15 The American Association of Publishers is quoted as stating that CDL denigrates the incentive copyright provides for authors and publishers The Authors Guild relies on the case of Capitol Records LLC v ReDigi Inc which established that ReDigi could not resell digital music to argue that libraries would similarly be prohibited from loaning digitized version of books that were legally purchased and argues that CDL results in lost sales 16 Various scholars have framed the Capitol Records LLC v ReDigi Inc as leaving room for CDL as part of a library s non profit educational mission For example the opinion authored by Judge Pierre N Leval found ReDigi had no actual control of the digital music being sold licensed iTunes mp3 s and that ReDigi made reproductions of Plaintiffs works for the purpose of resale in competition with the Plaintiffs market for the sale of their sound recordings Various scholars have pointed out that libraries are not selling works in direct competition with publishers like the Defendant in ReDigi 17 18 Libraries are purchasing books from the marketplace in order to loan the books to their patrons Additionally Judge Pierre N Leval also the originator of the doctrine of transformative fair use explained in the opinion that a use can be transformative when it utilizes technology to achieve the transformative purpose of improving delivery of content without unreasonably encroaching on the commercial entitlements of the rights holder Again analyzing this language from the case some scholars have asserted that CDL does not unreasonably encroach the market for these books any differently than the legal uses already permitted by the copyright law when libraries loan books physically 17 19 In Hachette Book Group Inc v Internet Archive 542 F Supp 1156 2023 the United States District Court for the Southern District of New York determined that the Internet Archive committed copyright infringement by scanning and distributing copies of books online Stemming from the creation of the National Emergency Library NEL during the onset of the COVID 19 pandemic publishing company Hachette Book Group alleged that the Open Library and the National Emergency Library facilitated copyright infringement The case involves the fair use of controlled digital lending CDL systems On March 25 2023 the court ruled against Internet Archive which plans on appealing 20 On August 11 2023 the parties reached a negotiated judgement The agreement prescribes a permanent injunction against the Internet Archive preventing it from distributing the plaintiffs books as well as an undisclosed payment to plaintiffs The agreement also preserves the right for the Internet Archive to appeal the previous ruling 21 See also editE book lending Democratization of knowledgeReferences edit Wu Michelle M 2011 Building a Collaborative Digital Collection A Necessary Evolution in Libraries PDF Law Library Journal 103 4 527 551 2011 34 Archived from the original PDF on 2015 10 30 Retrieved 2019 08 02 Bailey Lila Courtney Kyle K Hansen David Minow Mary Schultz Jason Wu Michelle September 2018 Position Statement on Controlled Digital Lending Statement on Controlled Digital Lending by Libraries Controlled Digital Lending by Libraries Archived from the original on 2019 08 02 Retrieved 2019 08 02 Hansen David R Courtney Kyle K 2018 A White Paper on Controlled Digital Lending of Library Books Controlled Digital Lending by Libraries Archived from the original on 2019 08 02 Retrieved 2019 08 02 Enis Matt Controlled Digital Lending Concept Gains Ground Library Journal Archived from the original on 2019 12 04 Retrieved 2019 12 04 Price Gary 2019 10 16 Controlled Digital Lending in Canada Protecting Unique Canadiana Works at the Hamilton Public Library Infodocket Library Journal Archived from the original on 2019 12 05 Retrieved 2019 12 05 Mounce Ross 2018 08 20 A new digitisation opportunity for UK university presses Research Libraries UK Archived from the original on 2019 12 05 Retrieved 2019 12 05 Couto Walter Eler do Ferreira Sueli Mara Soares Pinto 2020 12 23 Emprestimo Digital Controlado e direitos autorais no Brasil algumas reflexoes iniciais Liinc em Revista 16 2 e5378 doi 10 18617 liinc v16i2 5378 Adams Caralee Bailey Lila Freeland Chris Transforming Our Libraries 12 Stories About Controlled Digital Lending PDF controlleddigitallending org Archived PDF from the original on 2019 12 05 Retrieved 2019 12 05 Petrides Lisa Why Controlled Digital Lending Matters to Schools ISKME Archived from the original on 2019 12 05 Retrieved 2019 12 05 IFLA Statement on Controlled Digital Lending IFLA 2021 06 22 Archived from the original on 2021 06 17 Retrieved 2021 08 03 Controlled Digital Lending an Interview with Jonathan Band International Federation of Library Associations Archived from the original on 2019 12 04 Retrieved 2019 12 04 National Writers Union et al 2019 02 13 FAQ on Controlled Digital Lending CDL National Writers Union McKay John ed 2019 02 04 Statement on Flawed Theory of Controlled Digital Lending Association of American Publishers AAP Archived from the original on 2019 08 02 Retrieved 2019 08 02 Appeal from the victims of Controlled Digital Lending CDL National Writers Union 2019 02 13 Retrieved 2019 12 04 Publisher Author Groups Protest Library Book Scanning Program Publishers Weekly Archived from the original on 2019 12 04 Retrieved 2019 12 04 Hruska Joel The Authors Guild Declares War on Digital Library Lending Libraries ExtremeTech Archived from the original on 2019 12 05 Retrieved 2019 12 05 a b Wu Michelle M 2019 Revisiting Controlled Digital Lending Post ReDigi First Monday 24 5 Retrieved 2020 02 11 Courtney Kyle K 2020 Libraries Do Not Need Permission To Lend Books Fair Use First Sale and the Fallacy of Licensing Culture Medium Archived from the original on 2021 02 11 Retrieved 2020 02 11 Hansen David R Courtney Kyle K 2020 Fair Use Innovation and Controlled Digital Lending Fair Use Week Blog Archived from the original on 2019 03 01 Retrieved 2020 02 11 Jay Peters Sean Hollister 2023 03 24 The Internet Archive has lost its first fight to scan and lend e books like a library The Verge Retrieved 2023 08 05 Publishers and Internet Archive Submit Negotiated Judgment with Permanent Injunction to District Court in Hachette Book Group et al v Internet Archive publishers org Association of American Publishers Retrieved 2023 08 15 Further reading editMcCleskey Sarah E Selby Courtney 2018 Tried and True Fair Use Tales for the Telling Journal of Copyright in Education amp Librarianship 3 1 doi 10 2139 ssrn 3256427 SSRN 3256427 Peterson Lugo Billie Tech Talk PDF Library Instruction Round Table News American Library Association pp 9 22 28 Retrieved 2019 12 05 Sheppard Adrian Bailey Lila Katz Ariel Mills Andrea Slaght Graeme 2018 05 31 Controlled Digital Lending CDL A Panel to Discuss Legal and Practical Considerations Involved in the Implementation of CDL by Public and Post Secondary Libraries in Canada ABC Copyright Conference 2018 Harbour Centre Vancouver Simon Fraser University SFU Retrieved 2019 08 02 Wu Michelle M 2016 09 12 Collaborative Academic Library Digital Collections Post Cambridge University Press HathiTrust and Google Decisions on Fair Use Journal of Copyright in Education amp Librarianship 1 1 doi 10 17161 jcel v1i1 5921 Wu Michelle M 2019 02 04 Revisiting Controlled Digital Lending Post ReDigi First Monday 24 5 doi 10 2139 ssrn 3328897 S2CID 219360414 SSRN 3328897 via SSRN Electronic Journal Wu Michelle M 2019 07 03 Shared Collection Development Digitization and Owned Digital Collections Collection Management 44 2 4 131 145 doi 10 1080 01462679 2019 1566107 S2CID 218574586 External links edit Controlleddigitallending org Controlled Digital Lending by Libraries Retrieved from https en wikipedia org w index php title Controlled digital lending amp oldid 1186215076, wikipedia, wiki, book, books, library,

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