Controlled Digital Lending: Technology Solution or Legal Pathway?

By Andy Wesolek and Ellen Ramsey

This month’s post is an interview-style discussion about Controlled Digital Lending, prompted by the recent post on the subject by Dave Hansen and Kyle K. Courtney on Duke University’s scholcomm blog.

Ellen’s questions are meant to reflect perspectives of librarians concerned about copyright, collection, and public services impacts of digital lending strategies. Andy’s responses are through the lens of a scholcomm leader who is skilled at translating complex policies and tools for faculty and library professionals from diverse specializations.

ER: What is Controlled Digital Lending, and how does it help libraries circulate books to readers? How does it “expand digital access to print library collections” ? 

AW: CDL is the legal case to allow libraries to digitize books that are not otherwise available in that form, and share them in the same controlled way that they might share a physical book (e.g., only lending out the number of copies (print and digital) that is equal to the number of print copies held by the library). Library print collections currently are only shared physically. CDL makes the case that digitized versions of physical books held by a library can be shared online similarly to print, thus expanding access to the library’s print collections.

ER: Is it solving a technology problem, a legal problem, or both? E.g., why would a library need/want to limit loans of a digitized book so that “only one user can use any given copy at a time, for a limited time”?

AW: CDL is using technology to solve a legal problem. So much of the content published in the 20th century is orphaned and in danger of being damaged, destroyed, lost, etc. CDL allows libraries to not only make preservation copies (which they can already do under the Section 108 exception) but to enhance access to those works by sharing them in the same way they would share a physical book. This approach expands access to patrons who are remote, or otherwise unable to travel to the physical library, while preserving the print copy by restricting its circulation.

ER: What is the difference between a digitized book and an e-book?

AW: “E-book” is a broad term that refers to any book that is available electronically rather than physically. That said, there are different types of e-books. A “digitized book” is available to be read and shared electronically, created from a print book that has been scanned and made available electronically — often as a PDF. Other types of e-books may be born digital, and take a variety of file formats, and may include value-added features like in-text hyperlinks, searchability, and in some cases multimodal components such as embedded media.

ER: What do the authors mean by “20th Century black hole”?

AW: The “20th Century black hole” refers to the halting of the advancement of the public domain in the early part of that century. The copyright protections on materials published prior to 1923 have expired and those materials have fallen into the public domain, meaning they are free from restriction and may be legally reused, remixed, shared, etc. When there is no market for these out of copyright materials, though, it is easy for them to become essentially unavailable. Through the course of the 20th century, copyright protections were extended multiple times and the requirement to register works for that protection was dropped. As a result, works were eligible for increasingly-lengthy copyright protection as soon as they were fixed in a tangible means of expression. Moreover, it was not until the founding of Creative Commons (CC) in 2001 that creators had an easy, free, human and machine readable way to broadly grant permissions to use their works online.

As a result, libraries and other cultural heritage institutions are able to digitize and make available works published in the 19th century, and share/re-purpose content published in the 21st century under CC licenses. However, the copyright status, and copyright holders of a great deal of content published in the 20th century is notoriously difficult to determine. As a result, much of the cultural heritage produced in the 20th century is in danger of being lost or damaged as a result of legal barriers to its reproduction and distribution.

ER: What are examples of improperly implemented CDL? What is a good use of CDL?

AW:  Hansen and Courtney say in their white paper that digitized versions of physical books that were shared in an uncontrolled or bad faith manner would be improperly implemented CDL. Examples might include sharing a greater number of digital copies than the physical copies held in the library, sharing both the physical and digital copy of a book simultaneously, or making the digitized version available openly online. In addition, sharing digitized books that are not held in a library’s physical collections would also be an example of an improperly implemented CDL.

CDL is a useful strategy for circulation of orphan works (whose copyright status or holder cannot be determined) that are no longer available commercially.

Andy Wesolek and Ellen Ramsey are the co-chairs of ASERL’s Scholarly Communications Interest Group.