Congressional Research Service (CRS), COVID-19 and Libraries: E-Books and Intellectual Property Issues (Apr. 28, 2020), https://crsreports.congress.gov/product/pdf/LSB/LSB10453
This topic has been on my mind a lot since we all went on lockdown and couldn’t access physical books anymore. The pandemic has not stopped research, of course. There are still deadlines to be met.
My focus, as always, is on supporting our LLM students. They cannot graduate without submitting a research paper, and some of them were still doing research as late as April (the original deadline for LLM papers this year was April 25, although many students got extensions). To have their access to our print collection blocked by circumstances of fate was very unfair, and I felt so badly for them.
Not to make light of what is a very serious global health pandemic, but there are, of course, a few not-negative ways to spin this. It wasn’t as if only some of the students could not access print books — the restriction affected everyone equally. Furthermore, LLM theses are not graded on a curve, at least not as far as I know. The students do not compete against each other. When you are writing an LLM thesis, the goal is to do the best and most thoroughly-researched paper you can possibly do under the circumstances you find yourself.
When I was writing my own LLM thesis, I had about 6 weeks to do the bulk of the work because, in Germany, you are not permitted to begin work on your thesis until you finish your LLM coursework. My leave of absence was nearly over by then, and I really needed to get back to my job in the library (where I had a quick look at some relevant resources in Harvard’s library collection, in addition to wrapping up the writing and editing). I made it work the best I could. Could my thesis have been better? Absolutely, if I hadn’t felt so rushed to gather and process sources, and then pound it out. But it got done, and it got a decent grade, and I was able to finish my LLM.
I tell that story to show that I really feel for the students, in whatever circumstances they find themselves. And where they were finding themselves during the final few months of this academic year was locked out of the library, with no access to print books unless they’d checked them out beforehand.
Duplicating print and electronic resources in a sustainably cost-effective way is a conversation that we have been having in our library for a very long time, and restrictions on lending e-books is always a primary element of the discussion. So I was glad to find the CRS report that I am discussing today, which frames this conversation against the backdrop of the current situation.
There is a delicate balance, of course, between wanting to protect the rights of the copyright holder and ensuring that your researchers have access to the sources that they need. The last thing that people who work in libraries want to do is infringe copyright.
The copyright law of the United States (Title 17 of the U.S. Code, beginning with section 101) protects libraries from committing what would otherwise be copyright infringement. In general, the copyright holder of a work has exclusive rights over the distribution and reproduction of copyrighted works. How, then, are libraries able to check out a print book without violating this law? Section 109 permits “the owner of a particular copy or phonorecord lawfully made under this title, or any person authorized by such owner, is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy or phonorecord.” This codifies what is known as the “first sale doctrine,” which “protects libraries from liability for lending physical books, so long as the library purchased a lawfully made copy of the book.” (CRS Report, at 2)
What happens when the item at issue is not a physical book that the library purchased? When it comes to e-books, lending restrictions can be put into place by the copyright holder, which can create difficulties for libraries that want to lend these materials to their users. These restrictions can include “limit(ing) the length of time during which the library may lend the e-book, the number of times an e-book may be checked out, or both.” (CRS Report, at 1)
What gives the publisher the right to do this? Unlike print books, the library generally does not own an e-book; instead, it purchases a license that allows its users to “download and read (it) for personal use.” (CRS Report, at 2) It is the “ease of access” to e-books that compels publishers to implement these lending restrictions, because it “concerns publishers as unrestricted library lending could lead to lost sales of e-books, unreasonably low compensation for authors and artists, and thus less of an incentive for writers to produce books.” Therefore, if a library wants to offer an e-book for its users to borrow, it “they must pay for a special license that permits subsequent distribution, and then follow the publisher’s licensing terms.” (CRS report, at 3)
While this practice definitely furthers the interests of copyright holders, it doesn’t do a lot, especially when libraries are locked down and their print collections are not available, to serve the needs of researchers. In fact, it could be argued that authors and publishers are shooting themselves in the foot by doing this. One way that people discover a book is by reading a scholarly work in which that book is cited, right? This happens when I am, and the researchers I teach and support are, doing research all the time. However, if people who are producing the scholarship can’t access your books, either in print or electronically, how are they supposed to analyze their content and cite them?
Of course, I completely get that authors and publishers need to make make money, and that this is done by selling books. Anything that undermines those sales should be called into question. But do these restrictions on e-books go too far?
What about making an exception for libraries in this situation? You might not want people to be able to freely pass around the e-books that they buy and download on their phones or Kindles without regard to the copyright owner’s rights. However, could there be some form of the first sale doctrine for e-books that would lessen the restrictions for libraries, especially in times when print collections are unavailable? Congress actually considered amending the federal copyright law to allow this, according to the CRS report. When it enacted the Digital Millennium Copyright Act in 1998, it “order(ed) the Register of Copyrights to to report on ‘the relationship between existing and emergent technology and the operation’ of § 109.” This report, however, declined to endorse amending the law to ease these restrictions. (CRS Report, at 4)
As the CRS report suggests, it may be time to re-examine such an amendment — one that could create additional protections for libraries in situations where expanding e-book lending is necessary due to the exact type of emergency that COVID-19 presents. These protections would not even have to be permanent: “Congress could render any legal changes temporary by, for example, having them expire on a particular date or when the current national emergency ends.” (CRS Report, at 4)
I am not sure what I think about all of this at the moment. I know that I have a list of about 15 e-book platforms that I need to try before declaring, in response to an inquiry from a library user, that a requested work is not available electronically. This is stressful and I hate to get it wrong (which I have at least once), because it can cause the researcher to lose a lot of valuable time. If we had a broader, more permissive e-book access and lending regime in place in our library before all this started, one that included regular updates of catalog records to accurately reflect e-book access, I feel that I would have been a lot better prepared to answer those inquiries.
And yet, in the grand scheme of problems created by COVID-19, this is way, way down on the list. To me, the most important takeaway from this experience is that we may want to re-think how we do research and what should be more widely available in electronic format. As a librarian, this is a conversation that I welcome.