Around mid-2017 a preprint by Michelle Wu, Law Library Director and Professor of Law at Georgetown University, was published: Piece by Piece Review of Digitize-and-Lend Projects Through the Lens of Copyright and Fair Use.
What this article is proposing got me a bit excited. It argues that there are sufficient copyright provisions and court decisions to allow libraries to begin to digitize print copies that are still under copyright and make the full version of these digital copies available to patrons and other libraries.
This sounds like an explicit copyright violation, but Wu argues that if the library only allows one version of the digital or print book to be accessible to users at a time, that this use will fall under fair use. E.g. The print book will be stored in archive accessible to users only by request, while the digital version will be accessible via the library website. If a user does require the print book, then access to the digital version will be blocked for everybody while they use it.
The digital version of the book will also have Digital Rights Management technology attached to it that ensures only one user can access the book at a time and that the book is automatically deleted after the loan period is up.
The combination of having only one version of the book being available at a time plus the DRM restrictions would make the digital version of the book function the same as a print version. Only one user can use the book out at a time, and the next user must wait till that first user is finished.
This is a brilliant attempt at a solution to the problems libraries are having when trying to obtain ebooks: The high prices, inability to purchase individual copies, confusion over copyright/ownership, and challenges of obtaining copies via interlibrary loan.
It would also allow us to offer a choice between print or online version to our users, without needing to purchase extra copies. I don’t know how many times I’ve had a student express frustration that the library only has a print copy when they need a digital one.
Wu makes the case that a Digitize-and-Lend project like this relies on a number of provisions in the U.S. Copyright Act (specifically sections 107, 108, 109, and 121), but, most of all, it relies heavily on Fair Use (Section 107).
You’ll have to read the paper itself to really understand their argument. Essentially, Wu argues that all the factors used to determine Fair Use would be neutral here, except for the forth factor which looks at whether the use would affect “the potential market for or value of the copyrighted work?”
A Digitize-and-Lend initiative like this would not harm the market for these books, because these digitized copies would not replace a copy available on the market “but rather, it replaces the library’s legitimately acquired copy”.
As Wu states:
“At its heart, the question that has to be asked and answered is this: if a library has one lendable copy before digitization and one lendable copy afterwards, can market harm (if any) be attributable at all to infringing the work? Or is it entirely attributable to technology, which copyright does not protect?”
Also, as Wu points out, U.S. courts have often stated that the ultimate test of Fair Use is whether copyright law’s goal of progress for science and art is better served by allowing this use rather than preventing it. I think it’s quite clear that a Digitize-and-Lend project like this does.
I was surprised to learn just a couple weeks ago that a Digitize-and-Lend initiative like this actually isn’t all that novel! The Internet Archive’s Open Library has actually been doing this since 2010.
They have a team who are digitizing copies of print books – that are still under copyright – and making those digital copies available for a two week loan period using DRM. I currently have checked out and am reading Neal Stephenson’s Cryptonomicon (A book my local public library does not have in print or electronic).
Unlike Wu’s Digitize-and-Loan initiative that is proposed for institutional libraries and their institutionally affiliated patrons, anyone can become a patron of the Open Library and check out a book. There can be a long wait time before the book you want becomes available – they are loaning one copy to everyone in the world after all – but most people seem unaware that the Internet Archive offers this service. Cryptonomicon only has 20 total borrows.
What Open Library is doing here is a big step up from what Wu is talking about. Wu proposal just wanted to make the electronic version accessible to a library’s user base, Open Library is doing it for the world. This has of course attracted some attention from author and publisher groups who see Open Library as as clear copyright infringement, but, interestingly, as Chris Meadows writes in Teleread, these groups seem to be doing very little about it.
I recommend reading Meadow’s piece. It’s well written and some great discussions are happening in the comment section. Meadow is sympathetic to what the Internet Archive is doing and is also in favour of progressive approach to copyright, but he argues that what the Open Library is doing does not fall under fair use. That it does hurt the market for books and it harms authors and the ultimate goal of copyright to ensure progress of science and the arts:
“If all you had to do was buy and scan a print book for each copy you wanted to lend out digitally as often as you wanted, it would undercut the publishers’ own library-book licensing programs. Which, in turn, would lead to them not being able to pay writers as much, which would in turn lead to them not being able to produce as much new content.”
This raises a bit of an interesting question. Open Library currently only makes available one version of scanned book, no matter how many print copies they have. They could have 10 copies of Cryptonomicon, but they are only circulating one version electronically. It’s hard to see this really having any real affect on the market or an Stephenson’s income because there is only one digital copy available. However, what if Open Library was to just start mass buying and digitizing copies of Cryptonomicon from used bookstores and making all these versions available to be borrowed online?
I doubt this would happen. Open Library is probably very aware they are flirting with that line that is copyright infringement. That’s why they only are making one copy accessible. Whether something is Fair Use does depend on how many copies are distributed and if the sharing it is done in mass or systematic way. Open Library is deliberately not doing this so their use fits under Fair Use.
It’s still an interesting question of whether if I was to create my own digital lending library by scanning the print books I have and lending these to friends, would this count as Fair Use? I doubt it. I think Open Library has more room to play here because they are a library/archival organization. Copyright Law’s specifically give these organizations more rights then individuals because they have an important preservation and research role. Also, they have expert staff who ensure that copyright is not violated.
Let’s go back to the question asked by Meadows about why author/publisher organizations aren’t doing anything (i.e. taking them to court) about Open Library even though they have accused them of clear copyright infringement. Why is this? I think it’s largely because recent court rulings (especially the Google Books case) have created a very pro-Fair Use environment and copyright holders are hesitant to test their luck again.
Also, as Eric Hellman pointed out back when the Internet Archive launched this initiative in 2010, Open Library has set a bit of a Fair Use trap for publishers. Damned if they do, damned if they don’t:
“If no one steps forward to tell the Internet Archive to stop lending these works, then the public gains a sort of right-of-way to use them. Even if a lawsuit occurs, it’s quite possible that a jury would consider single-copy lending use […] to be fair, even if the majority of copyright lawyers might disagree. If enough works become available in this way, then a political constituency for library lending of ebooks could develop and strengthen.”
This is the Internet Archive at it’s best. Using Fair Use “creep” and taking risks to help us reach a better understanding of what does and what doesn’t break copyright. Many organizations and individuals play it safe when it comes to copyright, paying licensing for items or forgoing using them entirely, which damages societal progress as access is blocked for so many individuals. Internet Archive is helping us balance the scales.
It’ll be interesting to see what happens with Digitize-and-Loan initiatives going forward. I think Wu makes a solid legal case that libraries can accomplish them under current copyright law and Open Library seems to suggest that copyright holders are unlikely to challenge these initiatives in court. Until then, I’m going to enjoy Cryptonomicon. And you know what? It’s really good so far and I think I will likely buy a copy of my own to keep. Thanks Open Library!