American libraries are currently facing an important challenge: to implement a system of lending ebooks that is simple for readers in the short term, in which libraries maintain enough control over their collections to serve our readers and institutions well in the long term. Many electronic library materials (including many ebooks) are licensed rather than bought, and when libraries do not own content, they often have less control over the content that they provide. Even in cases where libraries own electronic books outright, they may have fewer rights to use the materials than they would to printed works. While electronic content can theoretically be easily replicated, in practice and law, licenses and contracts can be restrictive compared to the rights afforded to the rights of print book and journal owners, especially libraries, under copyright law.
What is fair use?
Fair use doctrine is the provision of copyright law that allows us to reproduce copyrighted material for the purposes of “criticism, comment, news reporting, teaching, scholarship, and research.” However, such use must be balanced against four factors, enumerated by the U.S. Copyright Office:
- Purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes
- The nature of the copyrighted work
- The amount and substantiality of the portion used in relation to the copyrighted work as a whole
- The effect of the use upon the potential market for, or value of, the copyrighted work. (U.S. Copyright Office, 2012)
This is the legal basis that allows for copying and printing from library books, including ebooks. Because digital reproduction is so easy and flawless, ebook providers have taken it upon themselves to limit reproduction and printing of their products. This limitation is accomplished by dint of Digital Rights Management (DRM), software that limits how users can access content, and backed up legally by a contract. More on that below.
What is First Sale Doctrine?
First Sale Doctrine is the legal basis for libraries to lend books despite not owning copyrights to them.
The first sale doctrine is a principal tenet on which many library operations are based. It “holds that a copyright owner’s exclusive right to distribute extends only to the first sale of a copy.” Once a copy of a work is sold, the new owner of that physical copy is allowed to dispose of that one copy as he or she wishes. He or she can sell it to a used book store or give it away to a friend. If the new owner is a library, it can loan it to as many patrons as it wishes, as often and for as long as it likes. (Ou, 2003)
Unfortunately, there is currently no broadly accepted understanding of First Sale Doctrine as applied to digital materials, which means that until such law is hammered out, the right of libraries to lend books is at risk of erosion.
Let’s compare the rights of libraries to lend and use different formats of materials that they may provide:
How can a library legally use a printed book that it owns?
For at least ninety-five years, the first sale doctrine in U.S. copyright law has allowed those who buy copies of a copyrighted work to resell, rent, or lend those copies. And the first sale doctrine has been a major bulwark in providing public access by facilitating the existence of used book and record stores, video rental stores, and perhaps most significantly, public libraries. (Reese, 2003)
How can a library legally use an ebook that it owns?
It is difficult to make any broad statement about the rights of libraries to use ebooks that they buy, because the rights of libraries to buy ebooks typically depend on the contracts between libraries and their vendors. Such contracts are typically confidential, so rather than discuss our contracts, I refer you to Hinkes, who writes of the general case,
In the case of tethered copies, if users are able to purchase works to download to their hard drive that are no encumbered by DRM restrictions, they can access those files even if and after the copyright owner takes them offline. In the case of technologically tethered copies, the owner can use that copy as long as he/she owns the original tethered equipment. These encumbrances prevent selling, renting, or even lending a tethered copy, all of which are permissible under a traditional first sale doctrine. (Hinkes, 2006)
Hinkes makes clear that, even in the case where libraries purchase copies of ebooks, sustained access to the copyrighted material depends on being permitted to have or create back ups. The rights of the library to its books are contingent on the particulars of the arrangement.
How can a library legally use an ebook that it licenses?
Under some circumstances, fair use rights can be overridden by contractual restrictions. Thus, these principles [of fair use] may not apply if a library has agreed, in a license agreement, donor agreement, or other contract, to forgo the exercise of fair use with respect to some set of collection materials. If fair use rights are to be preserved, library personnel in charge of acquisitions and procurement should be vigilant as they negotiate and enter into contracts related to collections materials. (Association of Research Libraries et al, 2012, pg. 6)
Of course our leadership is careful to balance our desire to provide access to the best, most convenient digital resources with our commitment to providing patrons the broadest access to those materials. We try not to enter into contracts that grossly limit our rights to our materials. The opportunities available to us are influenced by the mores of the digital environment.
First Sale Doctrine is currently before the Supreme Court in Kirtsaeng vs. Wiley. We will continue to follow developments in copyright law and scholarly communications.
Association of Research Libraries. (2012). Code of Best Practices in Fair Use for Academic and Research Libraries. Retrieved from http://www.arl.org/pp/ppcopyright/codefairuse/index.shtml
Hinkes, E. M. (2006). Access Controls in the digital era and the fair use/first sale doctrines. Santa Clara Computer & High Tech. LJ, 23, 685.
Ou, C. (2003). Technology and copyright issues in the academic library: First sale, fair use and the electronic document. Portal-Libraries and the Academy, 3(1), 89–98.
Reese, R. (2003). The first sale doctrine in the era of digital networks. U of Texas Law, Public Law Research Paper No. 57; and U of Texas Law, Law and Econ Research Paper No. 004. Retrieved from http://papers.ssrn.com/sol3/papers.cfm?abstract_id=463620
U.S. Copyright Office. (2012). U.S. Copyright Office - Fair Use. Retrieved from http://www.copyright.gov/fls/fl102.html