Controlled Digital Lending: an Interview with Jonathan Band

The concept of controlled digital lending is receiving growing attention. Originating in the United States, it is now a subject of discussion elsewhere in the world, raising both interest and concern. IFLA has interviewed Jonathan Band, a member of the Libraries Copyright Alliance, to find out more.

While the eBook market is showing signs of maturing, a lot of inconsistency and uncertainty remains about eLending, as demonstrated by the work of Professor Giblin and her team in Australia (see our blog). Even in law, different approaches are taken, with the European Union allowing for eLending under an exception to copyright (in some circumstances), and others leaving things to the market. 

Controlled Digital Lending represents a third option, based on the idea of Fair Use. We talked to Jonathan Band, a member of the US Libraries Copyright Alliance, to find out more. Further information is also availbale on the Controlled Digital Lending website, while Jonathan has also blogged on the subject. 

Could you outline briefly what Controlled Digital Lending entails?

Controlled Digital Lending (CDL) is the digital equivalent of traditional library lending. A library digitizes a book in its collection and then lends out the digital copy in a secure manner, while taking the physical copy off the shelf, out of circulation. That way, the same number of books remain in circulation. CDL allows users to borrow and return book without having to go to the library.

What do we know about how widely used it is?

Several US libraries are experimenting with CDL to varying degrees.

How does it relate to broader library eLending activities?

Most eLending activities are done under license with the publisher. CDL instead relies on the fair use right. eLending involves more recent books that are still in print. CDL targets the older books that are out of print and that aren't available from publishers in eBook format.

What’s the legal argument in favour of it?

Proponents assert that CDL is analogous to the first sale doctrine–also referred to as exhaustion. The first sale doctrine allows a library to lend a copy of a book lawfully acquired by the library. CDL, however, involves making reproductions–first digitizing the physical copy, then making a temporary copy in the user's eReader when she borrows the book. Proponents contend that fair use permits the making of these reproductions because CDL is the functional equivalent of traditional library lending.

What sort of arguments are used against it?

Opponents argue that CDL goes beyond the scope of activities permitted by the fair use right. They point to a recent decision of the U.S. Court of Appeals for the Second Circuit, where the court rejected the fair use argument with respect to a commercial service that allowed the resale of iTunes files. They also argue that CDL would undercut the development of a more robust licensing market. 

Do they hold water?

I think some rights holders may misunderstand the scope of CDL projects. They are not intended to replace eBook licensing services such as OverDrive, which license in-print eBooks. Rather, the focus is Twentieth Century books that are out of print and rarely circulated, such as scholarly monographs for which there is no current market. A carefully designed noncommercial CDL program could well pass fair use muster. 

What about the argument that rather than benefitting a limited number of users registered at a particular library, CDL can reach anywhere?

A CDL program could be designed to allow access only to authorized users, such as the students and faculty at a particular university. A library should perform its own fair use analysis to determine what books it can make available to whom. CDL should not be viewed as a "one size fits all" proposition.

What other options are there out there to ensure support for authors?  

Appropriate technological protections are important to prevent the proliferation of copies. So long as no additional digital copies are circulated beyond the number of physical copies in the library's collection, and the titles are not available from the publishers as eBooks, CDL does not harm the authors' interests. To the contrary, authors are benefited by the increased availability of their books.

Clearly Fair Use is part of the American legal landscape – could CDL also work elsewhere in the world?

Other countries have fair use or an interpretation of fair dealing that is similar to fair use, including Canada, Israel, Singapore, Malaysia, and the Philippines. A carefully designed CDL program might work in countries with a flexible fair use-type framework. Furthermore, there is no reason why a specific exception permitting CDL could not be adopted in a country without fair use. 

Find out more about IFLA's work on eLending.