Abstract: This article analyzes the role of copyright doctrine and case law in preserving the institutional function of libraries—both on- and offline—as trusted and, in principle, neutral hubs equalizing access to credible information and knowledge in societies with structural inequalities. In doing so it examines the ongoing Hachette v. Internet Archive litigation before the US District Court of the Southern District of New York in the context of earlier copyright cases, finding that there is a persistent need for electronic access to library material online.
Libraries have traditionally served an important role as reserved spaces for legally permissible distribution of books outside of markets. Copyright law, however, has the potential to hinder the fuction of libraries and other cultural heritage institutions particularly in equalizing access to knowledge. While there exist some exceptions and limitations that partially alleviate this, their applicability in the digital environment is still contested. Two novel challenges are interfering: first, an unmet and contentious need for emergency access to electronic library material to be granted online, and second, the need to counteract historical biases and misinformation, both of which multiply when spread within a hyper-connected and digitized society. In order to ensure electronic access to credible information and knowledge, policymakers must address these challenges strategically and reassess the needs of subjects and institutions that are currently subject to copyright exceptions.
Hachette v. Internet Archive follows a string of copyright cases that involved challenges to digitization without permission and to providing electronic access to digitized library material. The plaintiffs in Hachette v. Internet Archive, four publishers, brought copyright claims against the Internet Archive for the latter’s operation of a “National Emergency Library” within the context of the COVID-19 pandemic. The case introduces a new dimension to existing debates around electronic access to library material, particularly around e-lending, raising the question: Can emergencies justify additional exceptions to copyright laws covering electronic access to library material, and if so, under what circumstances?
After analyzing the relevant settled case law and the ongoing litigation against the Internet Archive and then looking back into the history of and rationale for copyright laws, the article advances a normative claim—that copyright should provide better support to libraries and digital libraries in particular (broadly defined) as the institutional safeguards of our literary treasures. Libraries have a public service mandate to preserve, curate, and provide access to a plurality of original and authoritative sources, and thus ultimately aspire not to compete in the marketplace but to become trusted hubs that equalize access to knowledge. In the context of a society currently struggling to fight historical biases and (online) misinformation, providing libraries with the legal support needed to fulfill this mandate will enable them to more effectively safeguard and provide equal access to (at least relatively) credible information and knowledge, including in the digital environment.
“On June 1, 2020, four publishing houses, Hachette Book Group, Inc., HarperCollins Publishers LLC, John Wiley & Sons, Inc., and Penguin Random House LLC, filed before the US District Court for the Southern District of New York a copyright infringement action against the Internet Archive for the Archive’s operation of what it called a “National Emergency Library” (NEL) after the first US shelter-in-place orders in response to the COVID-19 pandemic. Indeed, on March 24, 2020, the Internet Archive had announced the launch of a temporary online NEL to support “emergency remote teaching, research activities, independent scholarship, and intellectual stimulation while universities, schools, training centers, and libraries were closed due to COVID-19.” In their announcement the Archive called on authors and publishers to support the effort, which would ensure “temporary access to their work in this time of crisis.” It provided an opt-in option for authors who wanted to donate their book(s) to the NEL, and an opt-out option for authors who wanted to remove their book(s) from the NEL….
In my recent article, A Public Service Role for Digital Libraries: The Unequal Battle Against (Online) Misinformation Through Copyright Law Reform and the Emergency Electronic Access to Library Material (forthcoming, 31 Cornell J.L.& Pub. Pol’y_ _ (2021)), I examine the ongoing Hachette v. Internet Archive litigation, placing it in the context of earlier US copyright case law that deals with the digitization or the making available of copyrighted works for educational, research, and other purposes (notably: Authors Guild v. Google, Authors Guild v. HathiTrust, and Cambridge University Press v. Becker). There is also a global debate focusing on similar issues, apparent, for example, in similar cases brought before courts in Europe (Technische Universität Darmstadt v. Eugen Ulmer KG and Vereniging Openbare Bibliotheken v. Stichting Leenrech), India (University of Oxford v. Rameshwari Photocopy Service), and Canada (CCH Canadian Ltd v. Law Society of Upper Canada and the recent York University v. Access Copyright)….”
“Controlled Digital Lending (CDL) is a widely used library practice that supports digital lending for libraries of all sizes. Even though CDL is used at hundreds of libraries around the world, questions remain about this important innovation in digital library lending. In this session, we’ll be tackling the most commonly asked questions surrounding CDL and answering some of yours. Bring your thoughts and ideas – it’s the summer of CDL.”
“Providing access to information by lending books and other materials to the public is a fundamental role of any library. To lend materials more effectively, many libraries are using the practice of Controlled Digital Lending (CDL) to share their collections with the communities they serve. Rooted in the fair use right of US Copyright Act, CDL is the digital equivalent of traditional physical library lending—a library can digitize a book it owns and lend out a secured digital version to one user at a time, in place of the physical item.
Controlled Digital Lending has three important core principles:
A library must own a legal copy of the physical book, by purchase or via donation or gift;
A library must maintain an “owned to loaned” ratio, simultaneously lending no more copies than it legally owns; and,
A library must use technical measures to ensure that the digital file cannot be copied or redistributed.
Libraries ranging from public libraries to academic and research libraries to digital libraries are using CDL for a wide range of purposes. Some are focused on providing more convenient and efficient delivery of library resources to a broader community, while others use it to make print materials more easily discoverable. Some use CDL to provide materials in digital formats that are more accessible to those with print and physical disabilities, while still others point to the important role CDL plays in preserving and protecting library collections.
During the current COVID-19 pandemic, many libraries are using CDL to provide access to materials that their community simply can not be accessed in any other way—creating a lifeline for students, teachers, researchers, and the public at large.
SPARC supports Controlled Digital Lending. We are an active participant in an education and advocacy coalition for CDL, and have supported a variety of events to help educate the community on this practice.
We are also a signatory to this community Position Statement, along with many other libraries and library organizations. If your library is interested in signing the statement, you can do so here. …”
“The Digital Public Library of America (DPLA) released important library digital content news today:
Digital Public Library of America (DPLA) is pleased to announce that we have signed an agreement with Amazon Publishing to make all of the approximately 10,000 Amazon Publishing ebooks and audiobooks available to libraries and their patrons through the DPLA Exchange, the only not-for-profit, library-centered content marketplace. This marks the first time that ebooks from Amazon Publishing have been made available to libraries. Like our previous publisher arrangements, this agreement furthers our mission to expand equitable access to ebooks and audiobooks while protecting library patron privacy.
Amazon Publishing titles will begin to be available in the DPLA Exchange via four licensing models this summer; we expect that libraries will be able to access all of the Amazon Publishing titles by the end of the year:
Unlimited, one user at a time access, two-year license
Bundles of 40 lends, available with a maximum of 10 simultaneously, with no time limit to use the lends
Bundles of five lends, available simultaneously, with no time limit to use the lends
26 lends, one user at a time access, the lesser of two years or 26 lends license …”
“Nothing better promotes the progress of science and the arts than access to knowledge, especially during a global pandemic. COVID-19 has highlighted how our society has changed in the past few decades and how much it needs to change in the decades to come. As schools and workplaces, law firms included, went partially or completely remote, connectivity and access to online resources became more important than ever. It is in this environment that several publishers chose to bring litigation against Internet Archive (IA) in Hachette Book Group, Inc. v. Internet Archive.
Open Library is a non-profit digital library founded by IA that offers online access to more than 1.3 million books that it has digitized into a PDF format. Operating under the Controlled Digital Lending (CDL) model, Open Library lends out only as many books as it has physical hardcopies of. Essentially, the basis of CDL is that a book must be owned to be loaned. …”
“At an event discussing disinformation and the digital divide, U.S. Senator Ron Wyden from Oregon said he was committed to supporting a balanced copyright system that promotes fair use, digital lending, and the work of libraries.
“Libraries provide vital public services by making high quality resources available to everybody. And that’s true no matter what you’ve got in your bank account or your zip code,” said Wyden, noting he is the son of a librarian. “If the system is filled with draconian copyright laws and digital restrictions that make it hard for real news to be read, shared, and discussed, that particular vacuum is filled with more misinformation and lies.” …”
“The Association of Research Libraries (ARL) has appointed Darcée Olson as a visiting program officer in the Advocacy & Public Policy program from April 2021 through April 2022. Olson is the copyright and scholarly communications policy director at Louisiana State University (LSU) Libraries.
As visiting program officer, Olson will write a series of briefs on topics related to digital rights, including controlled digital lending, digitization, licensing reform, and contract preemption. These briefs will include a description of the current public policy landscape, and data and evidence from practitioners at member institutions. The briefs will also identify practical political opportunities for legislation or other forms of advocacy for ARL to advance….”
The Washington Post tech columnist Geoffrey Fowler recently had a very interesting article about how Amazon won’t allow the ebooks it publishes to be lent out from libraries. As someone who regularly borrows ebooks from my local libraries, I find this disappointing — especially since, as Fowler notes, Amazon really is the company that made ebooks popular. But, when it comes to libraries, Amazon won’t let libraries lend those ebooks out:
When authors sign up with a publisher, it decides how to distribute their work. With other big publishers, selling e-books and audiobooks to libraries is part of the mix — that’s why you’re able to digitally check out bestsellers like Barack Obama’s “A Promised Land.” Amazon is the only big publisher that flat-out blocks library digital collections. Search your local library’s website, and you won’t find recent e-books by Amazon authors Kaling, Dean Koontz or Dr. Ruth Westheimer. Nor will you find downloadable audiobooks for Trevor Noah’s “Born a Crime,” Andy Weir’s “The Martian” and Michael Pollan’s “Caffeine.”
I’ve seen a lot of people responding to this article with anger towards Amazon, which is understandable. I do hope Amazon changes this policy. But there’s a much bigger culprit here: our broken copyright laws. In the physical world, this kind of thing isn’t a problem. If a library wants to lend out a book, it doesn’t need the publisher’s permission. It can just buy a copy and start lending it out. Fowler’s correct that a publisher does get to decide how it wants to distribute a work, but with physical books, there’s the important first sale doctrine, which lets anyone who buys a book go on and resell it. And that meant that in the past, libraries have never needed “permission” to lend out a book. They just needed to buy it.
Unfortunately, courts seem to take a dim view of the first sale doctrine when it comes to digital goods.
“As digital information becomes the primary source of information, particularly during the pandemic, sources of information can be blocked or amplified. Information can be used as a means for social mobility, economic and educational opportunities, and civic engagement. There are tools that can be used to help information flow. There are also effects afoot by big tech and biased AI to bury information. Join the conversation about the importance of using information to fight digital inequities, support democracy, and improve social justice. Specifically, learn about fighting misinformation with information through tools like CDL (controlled digital lending) & how technologist can create inclusive and empowering tools to provide access to information for disadvantaged and marginalized communities.”