ATG Original: Digital Lending: Part 1 – A Major Issue During Covid

by | Jun 11, 2020 | 0 comments

by Nancy K. Herther (writer, consultant and Sociology/Anthropology Librarian, University of Minnesota Libraries

Douglas Preston, president of The Authors Guild, is very concerned about the future of authors. In a New York Times opinion piece he notes that “authors have been hit hard by the pandemic, especially emerging writers who have books coming out in the next few months. With bookstores and libraries closed and book tours canceled, they are facing an enormous challenge in connecting with potential readers. It could be a career-destroying time for some authors, many of whom are struggling to make a living.” The target for his ire is the Internet Archive’s National Emergency Library which has made “1.4M digitized books available to users without a waitlist—in response to the rolling wave of school and library closures that remain in place to date.” 

COVID-19 has resulted in the closure of schools, industries, libraries and other businesses across the globe.  The decision to close America’s libraries was even supported by the American Library Association whose statement included concern for their clients, noting that “school libraries in many states have closed along with schools and many have plans to provide online classes to students. Public libraries are making virtual resources available and considering other ways they can help during the crisis. Academic libraries are providing online services and access to resources. All libraries are working with their school administrators, governments, boards, and university administrations to determine critical services and closures following local directives.” However this statement, unfortunately, didn’t directly provide support or guidance on how libraries could continue to support their communities during this apocalyptic time. How would schools, research institutions and even governments be able to provide the best service, research and education without their libraries?

The World Bank provided some context on the seriousness and depth of the pandemic, noting that “the world is experiencing unprecedented challenges from COVID-19, the coronavirus pandemic, that could erase development gains for many countries. The pandemic has profoundly impacted human capital, including lives, learning, basic well-being, and future productivity. The crisis has also severely tightened external financing conditions for countries across the income spectrum, disrupting trade, supply chains, and investment flows. Multilateral cooperation is needed to contain the pandemic and mitigate its health, social, and economic consequences.”

With no real guidance coming from the profession, it took publishers and the Internet Archive to step-up to the challenge.  The number of publishers of books, videos and journals stepping up to provide access to their copyrighted materials has been heartening and critical during this challenge, as has the Internet Archive in their decision to remove the one-at-a-time waitlist for electric versions of materials in their collections. Intended as a library circulation-type of model, users were allowed access to materials one-at-a-time, just as they would circulate books or other materials from their local libraries during better times.  However, with libraries and schools closing, yet students still working to complete their lessons/classes and researchers working on their cures, someone needed to find a solution.

Pointing to a “temporary and significant need” caused by the closing of physical libraries, Brewster Kahle, in responding to a request from Senator Thom Tillis, noted that “the Internet Archive suggests that the COVID-19 crisis provides additional legal justification for its actions. The National Emergency Library was  developed to address a temporary and significant need in our communities​—​for the first time in our nation’s history, the entire physical library system is offline and unavailable.”  The Copyright Office noted basic agreement in their response noting that “the waiver or relaxation of certain legal obligations or duties during times of emergency such as the COVID-19 pandemic is not without precedent.”

By establishing the National Emergency Library, the AI suspended waiting, allowing an unlimited number of users simultaneous access to the full collections and the ability to check out up to ten works at a time, for a 14-day period with renewals allowed.  The AI wasn’t ignoring the interests of “authors and publishers [who] are going to be impacted by this global pandemic as well. We encourage all readers who are in a position to buy books to do so, ideally while also supporting your local bookstore.” 

Senator Tom Udall (D-NM) asked the Copyright Office whether it was legal to have publishers/authors opt-out rather than opt-in, noting that “I have heard from authors who are concerned that such action is not legal and presents additional challenges to them at an economically difficult time. With average incomes of only $20,300 a year prior to the pandemic, authors are struggling due to cancelled book tours and loss of freelance work.”  The Copyright Office responded with their interpretation, noting that “while the goals of promoting scholarship and education are explicitly identified in the statute as favored purposes, as explained above, that alone does not establish fair use. In their letter, the Copyright Office noted that opting in “would have been beneficial” however they did not make any pronouncement on the legality of their action. 

INDUSTRY REACTION

Adam Holland, Project Manager of the legal Lumen Database explains that “it’s not completely clear to me, though, how the NEL is any different from a normal lending library other than the scale at which it operates — in terms of the number of lendable copies. If it truly isn’t the same, as many critics contend, that’s one thing,” Holland continues. “But if it is, or at least similar, then it is not self-evident why the same arguments made in favor of ‘real’ libraries — especially that they introduce readers to, and convince them to buy, books, don’t apply to the NEL as well.”

Doug Preston, President of The Authors Guild has made strong oppositional statements and letters to Congress and its members as well as advising authors to send cease and desist letters to IA. The Independent Book Publishers Association has similarly advised its members. This stand relates back to the 2019 Authors Guild white paper in opposition to “Controlled Digital Lending” or CDL, which has been supported by most major library systems in the U.S. The IBPA instead calls this “a recently invented legal theory that allows libraries to justify the scanning (or obtaining of scans) of print books and e-lending those digital copies to users without obtaining authorization from the copyright owners.”

“We are stunned by the Internet Archive’s aggressive, unlawful, and opportunistic attack on the rights of authors and publishers in the midst of the novel coronavirus pandemic,” Association of American Publishers President and CEO Maria Pallante contends in a recent press release.  Pallante called it the “height of hypocrisy that the Internet Archive is choosing this moment, when lives, livelihoods and the economy are all in jeopardy, to make a cynical play to undermine copyright, and all the scientific, creative, and economic opportunity that it supports.” AAP and IBPA charge that the NEL is nothing less than another example of “the flawed theory of ‘controlled digital lending’.”

LIBRARIES WORK TO DEFINE CONTROLLED DIGITAL LENDING

“The copying and distribution of copyrighted content by libraries present complex legal issues, and although there are existing copyright law exceptions for such library activities (primarily in Section 108 of the US Copyright Law), those exceptions have not formally been amended for digital and online uses,” explains NISO,  and, certainly has not resolved since the onset of the COVID pandemic.

In 2018, a group of prestigious law professors and librarians released their Position Statement on Controlled Digital Lending by Libraries (CDL) which was written to advise libraries by offering “a good faith interpretation of U.S. copyright law for American libraries considering how to perform traditional lending functions using digital technology while preserving an appropriate balance between the public benefit of such lending and the protected interests of private rights holders.”

The CDL techniques were “designed to mirror traditional library practices permitted by copyright law” and if “properly implemented, CDL enables a library to circulate a digitized title in place of a physical one in a controlled manner. Under this approach, a library may only loan simultaneously the number of copies that it has legitimately acquired, usually through purchase or donation.” However, these definitions and practices have not been vetted by all key stakeholders – and especially authors and publishers.

ALL SIDES DESERVE FAIRNESS 

In 2019, the Society of Authors in London, released an open appeal to some of the world’s most prestigious funding organizations that support the IA and its Open Library to put pressure on the IA  and its “flawed theory” and “disregard for the law,” citing negative impact on authors and publishers. Today, with the latest move to make information more readily available during the pandemic, we are seeing a more complicated publishing universe.

At their recent Association of American Publishers conference, CDL paper authors explained their analyses and perspectives; however the response was negative.  “AAP strongly disagrees with the analysis of the white paper and its call to libraries to copy and transmit copies of entire books to the public in disregard of the law. CDL not only rationalizes what would amount to systematic infringement, it denigrates the incentives that copyright law provides to authors and publishers to document, write, invest in, and disseminate literary works for the benefit of the public ecosystem.”

“Effectively, it sounds like the Internet Archive and libraries have built a uniquely massive repository of books,” Adi Robertson notes in a story on the Verge, “ and in a moment of crisis, they’re prioritizing accessibility over nailing down a legal argument.” However, others see another side of the story, and more victims of arrangement.

“The problem with bypassing copyright and disrupting the chain of royalties that lead[s] from books to authors is that it endangers our ability to continue to produce art, and though we are all in the midst of a crisis, most artists are on the razor’s edge in terms of being able to support themselves,” novelist Chuck Wendig noted in an email to NPR. “Artists get no safety net.”

Blogging on Copyright and Technology, Bill Rosenblatt notes that:  “Opinions diverge widely as to whether CDL is legal, and the issue has not specifically been tested in courts. But the National Emergency Library is not CDL. For the National Emergency Library, the Archive has eliminated the one-person-at-a-time rule and made it possible for any number of people to e-borrow a title at the same time. You still e-borrow a title for two weeks, and you’re the only one who can open it during that time, but then you can just e-borrow it again after the two weeks elapse. So, it’s not quite the same as sharing DRM-free files, but the practical differences are minimal….The Internet Archive’s objective is either to draw a lawsuit from the publishing industry or to obtain the industry’s tacit approval of its “emergency” model if they don’t file one. It is betting that the industry will be cowed into the latter by the threat of bad optics.”

A recent article in the Los Angeles Times noted that “despite what has for several years been touted as a resurgence of independent booksellers, only a third of indie bookstores were profitable before the coronavirus, according to the ABA, which said several were “getting killed in the retail apocalypse.” Even the most successful and beloved bookstores are desperate.”  And there is plenty of desperation around – from authors, students, publishers, retailers, academics, librarians and the general public. 

In Part 2 of this article, ATG interviews one of the lead authors of the Position Statement on Controlled Digital Lending by Libraries and provides a first-look at the new copyright infringement lawsuit just filed against the Internet Library for its National Emergency Library.

Nancy K. Herther is a regular contributor to ATG and a former academic librarian.

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