First Sale

"Publishers, ebook vendors, and libraries are engaged in a “tug of war” over the lending of electronic books, according to Library Journal’s recent ebook survey. This clash inhibits most libraries from fulfilling their important institutional missions to provide access to knowledge and preserve our cultural heritage. In the best case, this tug of war will be a temporary struggle. The best outcome is not a winner who holds all the rope and another lying on the ground with rope-burned hands. If there must be a winner of any kind, it ought to be the reading public. In this article, the fourth installment in a series on the initiative to build a Digital Public Library of America, I examine the underlying role of law in the ebook lending debate, explore potential solutions to the problems, and consider how the DPLA can contribute to solutions for those we serve. At the core of this issue is the way the copyright law works–or doesn’t–when it comes to books, libraries, and readers in the United States today and into the future. A bit of background on the relevant law helps to set the scene for the tug-of-war. In the United States, copyright law grants to the creators of original works of authorship a bundle of exclusive rights–namely, the ability to legally exclude others from copying, adapting, distributing, displaying, and performing their creations. Should an individual (or a library, for that matter) make use of a copyrighted work in a manner that implicates one of these rights, an exception to the law must apply; otherwise, the copyright owner may be able to make a successful claim for infringement. Before e-readers and ebooks began their recent rise to popularity, libraries could acquire, lend, and preserve most in-copyright printed materials with relative ease–so long as they had the budget and space in their stacks. For instance, libraries could easily add print materials into their collections that came in as donations (though, as any acquisitions librarian knows, donations are most often a mixed bag). Libraries can also make a limited number of digital copies of printed texts for purposes of non-commercial lending and archiving, which helps to ensure books that are badly damaged or no longer sold commercially are not lost to the public. Limitations in the Copyright Act enable these acts by libraries. Some of the elements of the law are omnibus in nature–meaning they apply to everyone–and some of these provisions apply specifically to libraries.