Eric Enno Tamm, Chair of The Writers’ Union of Canada (TWUC), calls it “an outrageous trespass on the rights of authors.” The UK’s Society of Authors is asking for help to “tackle e-book piracy,” and TWUC Executive Director John Degen states that “the harm this does to the e-book market, and to genuine library sales, is incalculable.” The target of all this extreme rhetoric is the Internet Archive’s Open Library and its use of Controlled Digital Lending. The concerns raised are of particular interest to the University of Alberta, where the University of Alberta Libraries has recently made its previously non-circulating Wiedrick collection accessible via Controlled Digital Lending through the Internet Archive.
So, what exactly is Controlled Digital Lending (CDL)? Basically, it works like this. A library owns a legally-obtained print copy of a published book. The library then digitizes that book, lending out the digitized version in place of the printed book. The library is essentially taking a printed book in its collection and shifting its format so it becomes a digitized book. The printed book is put away, so that the library effectively still has only one copy of the work available for use. The digitized book is loaned under all the same safeguards that are used with the lending of eBooks, which restrict duplication and prevent the retention of the work beyond the loan period. More specifics about CDL are available at controlleddigitallending.org.
What are the copyright implications of CDL? The digitization of a printed book involves making a copy, so if the work is protected by copyright, we have to look to the Copyright ActCopyright Act for guidance regarding whether making and using such a copy might be permissible. While there are specific provisions of the Act that pertain to libraries, the more interesting question is the extent to which CDL would be covered under fair dealing (s. 29).
Fair dealing is the foundation of user rights in the Copyright Act. Under fair dealing, if a use, or dealing, is made with a copyright-protected work, and if that dealing is for one of the listed purposes that relate to the broader public interest, then, where the dealing is determined to be fair, it is not an infringement of copyright.
The Copyright Act, quite appropriately, does not include strict guidance on determinations of fairness, but rather leaves such interpretations to be made based on the facts of each case. In its 2004 CCHCCH decision, the Supreme Court of Canada outlined six factors that can assist in making such determinations of fairness. Coincidentally, the CCH case involved a library making copies of copyright-protected works in a controlled and limited way to better serve its patrons.
One of the six factors in CCH is the “effect of the dealing on the work.” The Court states that “If the reproduced work is likely to compete with the market of the original work, this may suggest that the dealing is not fair.” (para 59). This seems to be the main concern expressed by the authors’ groups noted earlier. However, even to the extent that this might be a reasonable concern, it might not be the determinative factor in a fair-dealing analysis. The Court goes on to say that “[a]lthough the effect of the dealing on the market of the copyright owner is an important factor, it is neither the only factor nor the most important factor that a court must consider in deciding if the dealing is fair” (para 59).
In all cases of fair dealing, it is important to be respectful of the interests of the rights-holder. When looking at the potential impacts of CDL, it is important to consider how reasonable the concerns expressed by the authors’ groups appear to be.
When it comes to categories of library holdings that might be made available via CDL, there is a broad range. For the sake of simplicity, let’s divide the in-copyright published books in a library’s print collection into three categories:
a) works that are currently out-of-print (no copies available for purchase from the publisher or rights-holder);
b) works that are currently in-print but for which there is no eBook version of the work that is commercially available for library use; and
c) works that are in-print and for which there is currently an eBook version that is reasonably commercially available for library use.
All the extreme rhetoric from the authors’ groups seems to be focused on category c). If a library were to digitize its print works that are in this category, creating and lending a digitized version of the print book rather than purchasing or licensing the currently available eBook from the publisher, then the effect of such a dealing might well have some detrimental impact of the market for the eBook. Although this factor alone may not be sufficient to determine the outcome of a fair dealing analysis, it does suggest that authors’ groups might reasonably be concerned about the use of CDL for works in that category.
What is less clear is whether or not there are reasonable concerns related to the use of CDL for works that are out of print, or where there is currently no commercially available eBook for library use.
Given the length of the term of copyright and the number of new books that are published each year, it should be clear that a very large number of published books are still in-copyright and yet out-of-print. Librarians have a responsibility to serve their communities as effectively as they reasonably can with the resources available to them. When a book is out-of-print, it becomes more difficult for a library to replace the copy in its collection if that copy were to be lost, stolen, or damaged as a result of library lending.
In making the work available through CDL, the number of copies of the book available for library use has not increased, but the work can now more readily be made available for lending to a broader user community.
Making an out-of-print book available via CDL does not result in lost sales for the author — the work is not available for purchase, except on the used market where no new royalties would flow to the author anyway. However, making the work available for lending via CDL might result in new readers. And gaining new readers might drive renewed interest in the work, which could, in some rare cases, encourage the rights-holder to consider a new printing of the book.
What about making an in-print book available for digital lending via CDL in cases where there is no commercially available eBook for library use? It might be argued that if the legally obtained print copy of the book is put away and the digitized version is made available for library lending, there would not be the usual wear and tear that normally requires the replacement of circulating copies of printed books. However, if the work is circulating to such an extent that print copies are wearing out every few years, perhaps the demand for the book is sufficient to warrant the publisher investing in an eBook version to meet that demand.
There are publishers, it might be argued, who have lagged in digitizing their back catalogues and making eBook versions of those works commercially available. These publishers might intend to make such eBook versions available at some point in the future. However, a potential future entry into the market by an eBook seems a much weaker argument against the fairness of making a digitized book available under CDL, at least so long as that eBook remains absent from the market.
As I suggested in a recent post, the preservation of in-copyright works is important to ensure they are not lost before they enter the public domain. CDL can be a useful approach not only for preservation, but also for broadening access to and use of works that might otherwise languish undiscovered. What is frustrating about the extreme rhetoric from the authors’ groups about CDL is that while there are a relatively small number of cases where CDL might cause significant impact on the market for an eBook, for the remainder of cases CDL can help make available to a much broader audience a significant number of works that might otherwise go unknown and unseen and unread.
There are still some important issues to be addressed regarding CDL and its impact on the eBook market, but let’s endeavour to keep in mind the limited scope of that impact. For the vast majority of works whose commercial lives have run their course decades before their copyright protection will expire, CDL could be a godsend for making and keeping those works available and accessible to researchers, historians and the reading public.
Adrian Sheppard — Director, Copyright Office
Adrian has been the Director of the University of Alberta’s Copyright Office since April 2015. One role of the Copyright Office is to educate and inform U of A students, faculty and staff on issues related to copyright. Adrian has an LL.B. from the University of Victoria.
For those interested in learning more about fair dealing, register for the upcoming Fair Dealing Symposium 2019 on February 27.Fair Dealing Symposium 2019 on February 27.
For more information about copyright at the University of Alberta, check out the Copyright Office website, or email our help desk.Copyright Office website, or email our help desk.