Last week, I attended the 2018 Open Libraries Forum at the Internet Archive’s remarkable headquarters in San Francisco. The focus of the Forum was twofold: to learn firsthand from some of the authors of the newly-minted position statement on controlled digital lending (CDL), and to help provide input for the Archive on their own Digital Lending platform, which precedes the Position Statement, but has the potential to be an important part of a global CDL infrastructure (with some caveats that I will return to). Two of the authors of the CDL position statement have created a companion white paper which lays out the legal argument for CDL in greater detail. Anyone considering engaging in CDL should consult these resources as well as their own legal counsel, but having said that, the documents are admirably clear and readable. It is important to stress again that the position statement on CDL and the associated white paper are not about the Internet Archive’s platform: they describe a practice which could be adopted by any library.

I think that CDL has the potential to be a big deal for libraries. So much of the transformation from print to digital has been accompanied by an erosion of the rights of content consumers. The balance of rights and responsibilities historically associated with copyright law has been replaced by digital licenses and DRM systems which reserve virtually all privileges and affordances for the licensor. CDL develops an argument, grounded in copyright law, for libraries to claim some territory of their own in the digital realm. This offers new degrees of freedom, and new opportunities for innovative library services or simply for reducing material handling costs.

Only time will tell how this will shake out, how libraries will come to apply these new possibilities. Will they be the domain of commercial vendors or large organizations, or might they become a mainstream part of library practice? I would like to consider what it would look like for libraries to extend current models of circulation and resource sharing to encompass CDL, what tools and infrastructure exist and what new ones might help libraries realize the greatest benefits for their patrons.

What is CDL?

CDL is a blueprint for an emerging approach for libraries to share copyrighted material. In a nutshell, CDL allows a library to digitally lend one “copy” of a title for every physical copy that they have acquired, provided that the total number of concurrent physical and electronic lends does not exceed the number of copies owned, and provided that reasonable steps are taken to prevent borrowers from creating their own copies. CDL extends the rights of a library to circulate physical books into the digital realm, provided that the book is physically owned by the library (and not licensed). The CDL position statement was crafted by a group of legal experts, and it has been endorsed by a rapidly growing list of organizations and individual experts.

CDL defines digital lending in terms of six specific controls that a library must put in place to protect the rights of the copyright owner, and it lays out the arguments, with references to laws and legal precedents, for why such lending is within the fair use rights of the library. Because copyright law is subject to interpretation and legal challenge, no ironclad guarantees against challenge or litigation are provided. However, some additional steps are offered for libraries that wish to reduce their liability even further, and it is suggested that ultimately, libraries are granted a level of legal shelter which makes the risk of litigation and any possible penalties quite low. But again, as with any activity, it is advisable for a library to engage legal counsel before making an investment in new services.

These are the six controls required by a library to provide controlled digital lending (from the white paper):

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 wholesale copying and redistribution.

Note that the first two points deal with the selection of material, and only the last four points deal with “technical” measures which are intended to mimic the constraints of a physical book to a reasonable degree.

If a library implements these measures, then it is doing CDL in accordance with the position statement, and it is free to lend and circulate parts of its collection electronically. If a library feels queasy and wishes to further reduce its risks, the authors suggest additional steps that might be considered including: limiting CDL to older or even out of copyright materials; focusing on non-fiction and steering away from new/current materials; implementing practices that further emulate the “transactional friction” of printed books, like artificial delays between lends or a maximum number of loans per copy to emulate a book wearing out over time. Again, these “refinements” are optional with respect to the CDL model, but they might help reduce concerns in first-time CDL practitioners.

Possible applications of CDL

CDL adds new degrees of freedom, new tools to help libraries do their work. I am no librarian, and only time will tell what creative uses people make of these tools; but it may be helpful to try to imagine some of them, to guide an exploration into possible technical approaches.

• Libraries can bring new life to marginal parts of their collection; items available for easy online use or download to a tablet may lend themselves far better to serendipitous discovery than those buried in closed stacks.
• Items that are very rare or costly, which might not be available for physical lending, can be made available for digital lending, either directly or through interlibrary loan.
• For libraries with far-flung branches or for interlibrary loan in time-critical situations, digital lending may sometimes be preferable to shipping the item out and back.
• Libraries can create thematic online exhibits or collections which cross the boundaries of institutions. If items have already been digitized and are available for digital lending (direct or through interlibrary loan), new possibilities are opened for engaging presentations.
• CDL can be part of a cross-institutional collection management strategy. Libraries can collaborate to establish electronic as well as physical coverage in a virtualized collection.
• CDL can be an alternative to permanently weeding a collection. Physical items of marginal value can be put into permanent storage or destroyed, yet remain available to patrons in their digital form.

What’s next?

I should state clearly that hardly any of the thoughts in this post belong to me. I have discussed CDL with a number of people over the past several months, brainstorming ideas, thinking about concerns, technical implications, etc. I have done my best to synthesize what I have learned and what makes me excited about this development, in the hope of exciting and inspiring others.

In the next post, I will explore some practical approaches to deploying CDL in a library, and think about implications for technology choices as well as the role of services like the Internet Archive.

Sebastian Hammer is co-founder and president of Index Data.