The UC Berkeley Library took an important step forward today in improving widespread digital access to its vast collections. Along with the UC Davis and UCSF libraries and the California Digital Library, the Library became an early signatory to a newly released position statement supporting rights for libraries to digitize in-copyright works in their collections, then lend them according to the same lending terms as the original print copies. The position statement, developed by copyright scholars from multiple institutions, as well as policy counsel for the Internet Archive, is accompanied by a white paper that outlines legal rationale for how controlled digital lending can be implemented to enable electronic access to certain library collections.
“Relying on controlled digital lending to digitize and lend some of our extensive collections can revolutionize how library users access and conduct research with these valuable materials,” said Jeffrey MacKie-Mason, Berkeley’s university librarian.
How controlled digital lending works
The position statement suggests ways that libraries can rely on the Copyright Act’s fair use provision (as well as the so-called “first sale doctrine”) to create a digital version of certain types of copyright-protected works in their collections (such as a 20th-century book), and to circulate that digital copy in lieu of, and according to the same terms and conditions for, the library’s original print copy. To best comply with fair use principles, only one user at a time can use the digital copy, and the library can lend only as many digital copies as it has print books. When one of the digital copies is on loan, the corresponding print copy cannot be made available for checkout until the digital copy is checked back in. Controlled digital lending has been in place for several years in the Internet Archive’s Open Library, as well as at the Georgetown Law Library.
Copyright law supports these principles
“Fair use under the Copyright Act is one of several doctrines supporting controlled digital lending of works protected by copyright,” said Rachael Samberg, the Library’s scholarly communication officer.
As Samberg explains, many materials within the Library’s collections are already in the public domain, or no longer protected by copyright, so they can be digitized and loaned without restriction. But the Copyright Act’s current term limits mean that, with certain exceptions, many creative works published from 1923 to the present are still under copyright. Copyright law typically affords the copyright holder exclusive rights to, among other things, make copies of and distribute their works — meaning that digitizing and circulating books still in copyright could infringe those rights.
However, as Samberg explains, “Under Section 107 of the Copyright Act, the fair use of a copyrighted work for purposes such as scholarship or research is not an infringement.”
Determining whether an intended use, like controlled digital lending, is fair requires balancing four legal factors. Prominent legal scholars across the country who have also become early signatories of the position statement believe that the fair use factors suggest a finding of fairness if controlled digital lending is implemented according to the best practices laid out in the white paper.
Endorsing the position statement is an important first step in consensus-building with other institutions and stakeholders who might consider ways to implement controlled digital lending. While the statement itself does not bind the Library to a particular path forward, the Library hopes to put these principles to work and is exploring ways to institute lending practices in a manner consistent with the Copyright Act. The Library would also have to adopt digital rights management infrastructure to both limit the number of users of digital copies and control access to print copies when digital ones are in use.
In the meantime, by becoming an early endorser of the Controlled Digital Lending Statement, MacKie-Mason said, “The UC Berkeley Library is better positioned to help democratize access to knowledge and allow it to be used in ways that promote global progress.”