Monday, April 20, 2020

The National Emergency Library

Because of the number of people still discussing this, I want to do a long blog post on it.  I hope this answers some of the questions you have.  Please feel free to leave comments, if you have questions that are not covered here.



In my course (IST 735: Copyright for Information Professionals) lecture about the National Emergency Library, I'm using several quotes from the Internet Archive and from the Controlled Digital Lending websites.  Below are the  quotes, which I hope will help to education you on this topic. At the very bottom of this post are my comments.

WAIT...STOP: I know you're going to skim the quotes, but don't. Read the quotes. Then consider reading the documents in the list below. Why? Because the details matter.  Undoubtedly you will question something and say "but they are doing...", and not realize that they have addressed your concern. So read before you applaud, criticize, or question.


Readings for this class lecture

 

Quotes from FAQ for the National Emergency Library

  • Our digital library is free to read for anyone with an internet connection, anywhere in the world.
  • The library will have suspended waitlists through June 30, 2020, or the end of the US national emergency, whichever is later.  
  • According to UNESCO,  the COVID-19 crisis has shuttered the classrooms for one-in-five  students worldwide, plus an additional one-in-four from higher education  classes. And that number is growing, quickly approaching 1 billion students physically cut off from classrooms, teachers and libraries.Our focus is providing online access to older books that don’t have an ebook.
  • Readers who borrow a book from the National Emergency Library get it for only two weeks, and their access is disabled unless they check it out again. Internet Archive also uses the same technical protections that publishers use on their ebook offerings in order to prevent additional copies from being made or redistributed.
  • The Internet Archive has partnered with ISKME and an expert group of educators and school librarians to develop the Universal School Library, a curated list of 2,300 books organized by reading level and grade. 
And also from the Internet Archive FAQ: Is this controlled digital lending?
    No. It is close to controlled digital lending but is significantly different while waitlists are suspended. This library is being mobilized in response to a global pandemic and US national emergency. It shares aspects of controlled digital lending by controlling the physical book that was scanned and the redistribution of files through digital rights management software, but differs by having no waitlists for users borrowing books.  Once the US national emergency is over and waitlists are back to their normal capacity, the service will return to full controlled digital lending. 

 

So what is Controlled Digital Lending? (from the CDL website)

  • …a method by which libraries loan print books to digital patrons in a “lend like print” fashion similar to how non-digital patrons check out books in-person. Through CDL, libraries use technical controls to ensure a consistent “owned-to-loaned” ratio, meaning the library circulates the exact number of copies of a specific title it owns, regardless of format, putting controls in place to prevent users from redistributing or copying the digitized version.
  • CDL isn’t itself a silver bullet for mass digital access to books. It’s not meant to be a competitor to Overdrive, nor a replacement for licensing e-books of best-sellers or other currently licensable e-book content. But we think CDL does deserve significant attention as a legal strategy, particularly to help address access to the large number of books published in the “20th Century black hole” that have little hope of otherwise bring made available to readers online.

 

What does owned to loaned ratio really mean?

For example, if a library owns three copies of a title and digitizes one copy, it may use CDL to circulate one digital copy and two print, or three digital copies, or two digital copies and one print; in all cases, it could only circulate the same number of copies that it owned before digitization.
Then the CDL websites discusses:
  • The Principle of Exhaustion and the Fair Use Doctrine 
  • First Sale and the Common Law Exhaustion Principle

 

First Sale and the Common Law Exhaustion Principle

This legal set of rules mandates that any time there is an authorized transfer of a copy of a copyrighted work, the rights holder’s power to control the use and distribution of that copy is terminated or ‘exhausted.’ Exhaustion allows the owner of a particular copy of a work to sell, lend, or give away that copy without payment to or permission from the rights holder. Among other important benefits, exhaustion ensures that after copyright holders price and control the initial distribution of their works, secondary outlets (such as libraries) and markets (such as used bookstores) can expand the affordability, preservation, and availability of works. Library CDL approaches that track the principle of exhaustion are thus much more likely to fall within its protections.

 

Fair Use

Other socially beneficial purposes, such as increasing public access to works, may also qualify for fair use. Library CDL approaches that are designed for socially beneficial purposes are much more likely to fall within the protections of fair use.
The CDL website provides information on how the four factors might be applied.  I've summarized them in this table, but there is a MUCH longer - and important - explanation on the website.
In order to properly position CDL within the analysis above, proponents say that libraries should:
  1. ensure that original works are acquired lawfully;
  2. apply CDL only to works that are owned and not licensed;
  3. limit the total number of copies in any format in circulation at any time to the number of physical copies the library lawfully owns (maintain an “owned to loaned” ratio);
  4. lend each digital version only to a single user at a time just as a physical copy would be loaned;
  5. limit the time period for each lend to one that is analogous to physical lending; and
  6. use digital rights management to prevent copying and redistribution.

 

Finally, Kyle Courtney in Controlled Digital Lending Concept Gains Ground said:

This is how things start. You put out a position statement, you back it up with a white paper, and you see the conversations that happen.


Criticisms

There are many articles critical of the National Emergency Library, including:

My Thoughts

The details of this matter, which is why I have encouraged you to read the quotes and other information.  The Internet Archive has laid out and documented a plan, including how they are relying on Fair Use.  Notice that they have not thrown the doors open on all of their content, but have constructed a specific library for a specific population under specific circumstances.

The Internet Archive is exercising Fair Use. We know that we should exercise Fair Use and push on what we perceive the boundaries are. If we don't use Fair Use, then we may lose it. Not using Fair Use could cause its boundaries to shrink.  It is when we push on Fair Use that we are able to get people to consider what is possible, and positive changes can happen.  Think of the pushing on Fair Use which Google has done (e.g., Google Book Search, Perfect 10 v. Google).  Think of the work that HathiTrust has done.  Yes, there was push back. Yes, there was some re-thinking. And while it took years, there came a time when how we thought about that activity changed and we saw it as normal.

It is too early to know the final disposition of this National Emergency Library will be.  It is unlikely, during this national emergency, that authors and publishers will make a formal move against it. That could be seen as bad public relations. Therefore, let's wait to see what happens after the emergency has ended. What do the authors and publishers say (and do) then?

If this national emergency extends longer than we all hope, I would be interested in seeing what the Internet Archive does then.  Does it continue with the National Emergency Library as it is now? And what about the authors and publishers? Will they raise legal challenges?

Remember that the final arbiter in determining if a use is legal is a court.

Finally, I hope this is an opportunity for more people to really learn about Fair Use, which means reading the law, reading commentary and articles on the law, and practicing using the four factors.  I also hope that more librarians will learn about Controlled Digital Lending, by reading what has been published about it. This could be something that more libraries would like to implement, if they understood what it was.


Addendum (4/20 afternoon):

These resources were forwarded to me and they are from the National Writers Union.

Addendum (June 12):


Kahle, Brewster. (June 10, 2020) Temporary National Emergency Library to close 2 weeks early, returning to traditional controlled digital lending.
Today we are announcing the National Emergency Library will close on June 16th, rather than June 30th, returning to traditional controlled digital lending. We have learned that the vast majority of people use digitized books on the Internet Archive for a very short time. Even with the closure of the NEL, we will be able to serve most patrons through controlled digital lending, in part because of the good work of the non-profit HathiTrust Digital Library. HathiTrust’s new Emergency Temporary Access Service features a short-term access model that we plan to follow.

We moved up our schedule because, last Monday, four commercial publishers chose to sue Internet Archive during a global pandemic.  However, this lawsuit is not just about the temporary National Emergency Library. The complaint attacks the concept of any library owning and lending digital books, challenging the very idea of what a library is in the digital world. This lawsuit stands in contrast to some academic publishers who initially expressed concerns about the NEL, but ultimately decided to work with us to provide access to people cut off from their physical schools and libraries. We hope that similar cooperation is possible here, and the publishers call off their costly assault.

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