This was the second session at the Brigham Young University Copyright & Trademark Symposium and the reason why the Symposium interested me. I tried to capture what each side said, although I know I did not capture every detail. One thing that was pointed out to me afterwards is that the moderator changed the question part way through to be a legal question, rather than a policy question. In an Oxford debate, the debate question is supposed to stay constant.
Description
Proposition: Libraries should be allowed to circulate digitized copies of physical works in their collections through Controlled Digital Lending.
Should libraries be allowed to lend digital copies of physical
books in their collections? Controlled Digital Lending (CDL) is a legal
theory that would allow libraries to do just that. But CDL raises novel
legal questions that have never been decided by a court, and experts are
divided on whether the untested legal theory is permissible under
current copyright law and policy. In this session, the audience will get
to hear from leading scholars arguing for and against the proposition,
and then vote on which side has the more persuasive arguments.
This session used the Oxford debate format.
Participants
- Devlin Hartline, Legal Fellow, Hudson Institute (staff bio)
- Dave Hansen, Associate University Librarian and Lead Copyright & Information Policy Officer, Duke University (staff bio)
- Julie Rose, Broadcast Journalist, Host of “Top of Mind,” BYU Radio - Debate Moderator
Hartline (opening statement) argued against CDL. He equated CDL to the latest version of Napster. He believes CDL is a fantasy where people try to give away other people's works for free. He believes this is a place where Congress needs to weigh in. He noted that Section 108 does not support CDL. Section 110, the TEACH Act, doesn't support CDL. He said that no court has ever found that giving away an entire book is fair use. He ended by noting the harm CDL does to authors and publishers.
Hansen - rebuttal - He noted the limited nature of controlled digital lending. The number of users who can gain access to the book is limited. This is very different from Napster. He emphasized that we're talking about library use. Libraries have special significance in copyright law. He pointed to Section 108(h) and Section 108(e). He noted Congressional intent in thinking about libraries. And he ended by noting what is available to libraries under fair use.
Hartline - rebuttal - This is a policy and legal question. Buying a book and loaning that book is different than libraries entering the digital book market. Once you have a digital copy of the book, you have a piracy problem. He noted that libraries are infringing but then using DRM to protect their infringing copies.
Hansen question to Hartline - Does this mean that libraries cannot do format shifting?
Hartline's response - Copyright is a permission based system. Congress has been discussing this. Congress needs to rule on this. Libraries cannot just do CDL without Congress supporting this.
Hartline question to Hansen - Do you think the National Emergency Library was illegal or not?
Hansen's response - The National Emergency Library did not follow CDL as ascribed as being the core of this debate. They did not maintain an owned to loan ratio. How much can fair use accommodate the need to keep education and discover going? At the start of the pandemic, it was difficult to get books shipped. The global supply chain had fallen apart. Extraordinary circumstances require extraordinary responses.
Hansen question to Hartline - One of the criticism of CDL is that it can be applied to a broad range of books. Is there a limited range of books that you think CDL can be applied to?
Hartline's response - No. He did not see a market failure at the start of the pandemic. He saw publishers working hard to meet the needs of their customers.
Hartline question to Hansen - What would Hansen say to an author during the pandemic about CDL? Does it take the interests of the authors to heart?
Hansen's response - He feels that CDL incentivizes libraries to purchase books and to make them available. This is a help for all authors. Not all books are available already as ebooks.
Audience question - Literally thousands of titles from the 1930s through 2010, including many Pulitzer and other prize winners, are not digitized, will never be digitized by publishers due to perceived lack of market, and are in danger of being lost in physical format. Shouldn't these be allowed via CDL? There is no loss monetary loss to anyone. These days, if something is not digital, it might as well not exist for many purposes.
Hartline's response - He points to Section 108 as being helpful, but we have to understand that there are times when you'll need permission rather than relying solely of copyright law.
Moderator question - Is there any role for Congress to clarify this at this point?
Hansen's response - Yes, there is a role for Congress and for them to consider modifications to Section 108. Yes, Congress could discuss CDL, but he feels that copyright law already supports it. Fair use allows for broad flexibility. Congress has created safe harbors (e.g., Section 121) which are in alignment with fair use.
Hartline's response - He agrees that Section 121 does not harm the market, but sees CDL as harming the market.
Question - Is CDL more appropriate for order works?
Hansen's response - No.
Audience question -What do publishers propose should happen to books once they are no longer profitable? Should they just be thrown in the trash and disappear from the historical record? Doesn’t CDL solve a pretty serious market failure?
Hansen's response - If books are no longer marketed (economically abandoned), how is it helpful to make those works available digitally?
Hansen's response - If books are no longer marketed (economically abandoned), how is it helpful to make those works available digitally?
Audience question - Libraries generate and distribute (in a controlled manner) copyrighted material all the time in producing copies of periodical articles for sharing via interlibrary loan - this seems to be a well-established and widely accepted practice, so how does that practice relate to (or even provide support for) CDL?
Hansen's response - Section 108 allows users to do what they will with what they received through ILL.
Audience question - As a librarian, I often cannot license electronic books for my students because the publisher does not offer a license to libraries, essentially holding the electronic copy hostage. Especially considering the health concerns many students have during a pandemic, this isn't reasonable.
Hartline's response - Copyright is not about access, but about respecting the copyright owner.
Hansen's response - CDL could be applied to other formats. We have a legacy of formats where there are no alternatives. We should not abandon content.
Audience question - Seems like there should be two questions: (1) "Should" CDL be allowed? and (2) Do you think CDL is legal under the current U.S. Code? Devlin has convinced me that CDL would likely lose in court based on the US Code, but I would still answer "yes" to question (1) as a matter of public policy.
Moderator - Should CDL be allowed and is it legal?
Audience question - Seems like there should be two questions: (1) "Should" CDL be allowed? and (2) Do you think CDL is legal under the current U.S. Code? Devlin has convinced me that CDL would likely lose in court based on the US Code, but I would still answer "yes" to question (1) as a matter of public policy.
Moderator - Should CDL be allowed and is it legal?
Hansen's response - This is a policy question. Yes, current law allows for it. As a policy matter, is this something that libraries should be allowed to do? Yes.
Audience question - How does CDL address the issue of scanning (copying) the physical work in order to create the digital copy in the first place? It seems the theory hinges on that being within the rights of purchasing a digital hardcopy. That is, CDL seems hang on the theory that the digitizing is a legitimate copy of the physical work.
Hansen's response - There are lots of cases that show it is legal to make digital copies for downstream use. What is the ultimate purpose that your aiming for? You need to look at that. Libraries digitize books all the time for preservation purposes, e.g., Lots of Copies Keeps Stuff Safe (LOCKSS).
Hartline's response - Section 108 allows copies to be made for preservation purposes. Section 108 limits access to those copies.
Hartline's closing statement - Copyright law has never been about giving things away for free. Copyright recognizes that progress is made by encouraging people to create new works. CDL favors free access over author's remuneration. CDL is abut giving away works on a scale we have not seen before. Yes, it could help solve the problem of orphan works, and that is actually a problem that Congress should tackle. Finally, CDL is a fad. Organizations should not ignore the legislative process.
Hansen's closing statement - Libraries loan works for free and this has been long accepted by copyright law. CDL expands that into the online space. Is CDL permissible under current law? CDL is not a solution to the mass digital debates we've been having. Mass digitization needs a legislative solution. However, fair use can help with some of the digitization efforts. CDL carves out a narrow use that is respectful of the market.
The poll was redone and the results were:
- 60% felt that libraries should be allowed to use Controlled Digital Lending to circulate digital copies of materials in their collections.
- 29% did not feel felt that libraries should be allowed to use Controlled Digital Lending to circulate digital copies of materials in their collections.
- 11% were unsure.
The winner of the debate was the person who moved more people to their side. With that, Devlin Hartline was the winner. However, I wonder what the moderator's reframing of the debate question had on the debate itself and on the final poll. Were people voting on policy or legality?
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