Digital Copyright Exhaustion (article and webinar)

A couple of months ago someone emailed me a link to "Copyright, Exhaustion, and the Role of Libraries in the Ecosystem of Knowledge" written by Ariel Katz, who is faculty at the University of Toronto. It took me a while to read it and after doing so I discovered that Katz had participated in the related 2021 webinar "Why CDL Now? Digital Libraries Past, Present, and Future."The recording is available online. [Descriptions of both are below.]

The 43-page article was published in A Journal of Law and Policy for the Information Society and is not for the causal reader. However, even a cursory read will surface interesting information about the history of libraries as well as thoughts about the first sale doctrine and exhaustion. For example:

American book and journal publishers sold 2.7 billion units in 2014, generating $27.98 billion in net revenue. 1 Meanwhile, libraries in the United States circulate almost twice that amount, engaging in over 4.42 billion circulation transactions a year, 2 most of which are for free.

...

Therefore, libraries operate in a space that commerce does not and will not occupy, and the services that libraries provide supplement rather than compete with services that publishers and other commercial intermediaries could offer.

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Libraries occupy a privileged space in the copyright system. Historically, libraries predate copyright, and the institutional role of libraries and institutions of higher learning in the “promotion of science” and the “encouragement of learning” was acknowledged before legislators decided to grant authors exclusive rights in their writings. The historical precedence of libraries and the legal recognition of their public function cannot determine every contemporary copyright question, but this historical fact is not devoid of legal consequence. History is part of the legislative history of statutes, and it constitutes part of the context that informs the interpretation of current statutes.

So, consider pouring yourself a large coffee and reading the article or watching the 60-minute video. I think you'll find either (or both) to be informative. The article will undoubtedly have you asking questions about copyright, and asking questions about copyright is always a good thing!

Article Abstract (2016)

In this Article, written for a symposium on the future of libraries in the digital age, I present and challenge two common views about the scope of the first-sale doctrine, or exhaustion: namely, that the doctrine applies only to the transfer of tangible copies of works but not to the transfer of digital files, and that copyright owners can circumvent exhaustion by characterizing transactions as “licenses” rather than “sales”, or by contracting out of it.

The law on digital exhaustion is anything but settled. As codified, the “first sale” doctrine it may limit only the distribution right, but its statutory presence might merely affirm a broader principle of exhaustion—one of the several principles in copyright law that limit the copyright owner’s powers. The principle of exhaustion can apply, and at times has been applied, beyond the distribution right.

Likewise, the notion that copyright owners can circumvention exhaustion by characterizing transactions as “licenses” rather than “sales”, or by using contracts to exercise downstream control is hardly a foregone conclusion. Established precedent and sound legal principle indicate that while the law recognizes some scope for contracting around exhaustion, courts will not necessarily uphold any private reordering of the respective legal entitlements of copyright owners and users.

While these observations and conclusions apply to exhaustion generally, they apply most demonstrably in the case of libraries. Libraries occupy a privileged space in the copyright system. Historically, libraries predate copyright, and the institutional role of libraries and institutions of higher learning in the “promotion of science” and the “encouragement of learning” was acknowledged before legislators decided to grant authors exclusive rights in their writings. The historical precedence of libraries and the legal recognition of their public function cannot determine every contemporary copyright question, but this historical fact is not devoid of legal consequence. History is part of the legislative history of statutes, and it constitutes part of the context that informs the interpretation of current statutes.

Therefore, if not false, then the view that the current legislation does not allow digital exhaustion is at least questionable. 

Webinar Description (2021)

Libraries have historically been trusted hubs to equalize access to credible information, a crucial role that they should continue to fill in the digital age. However, as more information is born-digital, digitized, or digital-first, libraries must build new policy, legal and public understandings about how advances in technology impact our preservation, community, and collection development practices.

This panel brought together legal scholars Ariel Katz (University of Toronto) and Argyri Panezi (IE University Madrid/Stanford University) to discuss their work on library digital exhaustion and public service roles for digital libraries. They were joined by Lisa Radha Weaver, Director of Collections and Program Development at Hamilton Public Library, who discussed how library services have been transformed by digital delivery and innovation and Kyle Courtney of Library Futures/Harvard University, a lawyer/librarian who wrote the influential Statement on Controlled Digital Lending, signed by over 50 institutions. The panel was moderated by Lila Bailey of Internet Archive.