Copyright lawyer Michael Wolfe argues that the future of our libraries does not hinge on the outcome of an American court case

The National Library is sending books removed from its collections to the Internet Archive, a charitable library in the United States, to see them digitised and preserved in ways the public purse cannot afford. Is this a scandal? Is this piracy?

In the surprisingly high-stakes, high-emotion world of copyright law and policy, the word “piracy” is a trusty old standby — it’s the allegation copyright owner interests lob at any use of their works not subject to total owner control. “Alleged infringement” or “legally permissible but sternly disapproved of by rights-holders” just don’t convey the same sense of urgency or alarm. Besides, why bother with fussy legal technicalities when a snap moral judgment is so much easier and so much more fun to write?

So I was dismayed to see Steve Braunias use his platform to give oxygen to a moral panic over the National Library’s deaccessioning plans, complete with cries of “piracy!” The public conversation would be better served by taking a moment and giving a complicated situation the care and attention to detail it deserves.

Without a doubt, rights-holders are upset at the Internet Archive and are, in fact, suing the organisation in the United States. On its own, the existence of a lawsuit doesn’t tell us much — litigation is a way of life in America, and copyright owners there have a long history of overestimating their legal rights and losing their biggest cases (just ask Oracle, or the Authors Guild, or Universal Studios). Maybe it’s prudent, then, to take a look at the substance of what the lawsuit is about; see if perhaps there’s something more going on than simple piracy.

With that in mind, here is the controversial thing this library, the Internet Archive, is doing: they’re lending books.

The problem is that the library at issue is online, and the books it lends are digital. The system used is called “controlled digital lending,” the concept behind it is a fairly simple implementation of traditional library lending in online spaces. Controlled digital lending has three basic steps:

  1. A library makes a digital copy of a physical book in its collection. This is an established lawful use in the United States, a legal reality cemented by an earlier ill-fated rights-holder lawsuit.
  2. The library lends its digital copies to individual users on request, one at a time. Just like the physical book, there can’t be more borrowers than copies.
  3. Rights management software terminates the borrower’s access. The same technology publishers use in their own ebook programs is used to prevent borrowers from making further copies and from using the book longer than the lending period allows.

Throughout all of this, the physical book stays on the shelf, intact and owned by the lending library — if the library loses, sells, or gives away the physical copy, it ceases lending the digital one. Lending books, real physical ones that live somewhere in the real world, with a digital twist.

The key to understanding the controversy here is that this is not a fight about piracy or digitisation. It’s a fight about the future of libraries and the future of ownership.

Ownership is, historically, behind both the how and the why of lending libraries (it’s also why we have secondhand bookshops). The idea is that copyright owners have the right to issue copies to the public, to sell a given copy of a book once, and thereafter that particular copy becomes the personal property of the buyer. Anyone buying a copy of Braunias’ Missing Persons could happily lend it to a friend or sell it to a bookshop without risking copyright liability; a library can do the same. In any of these cases, I suspect he would not even mind.

The problem facing libraries is that this system is coming rapidly to an end. Digital books, it turns out, are never sold. However much you treasure your Kindle library, it is not personal property the way the books on your shelf are. The “buy now” button says one thing, but the underlying terms of service make clear that what you’re purchasing is actually a complex licence granting you — and only you — a strictly limited set of permissions around your use of the text.

Unfortunately for libraries, the terms of library ebook purchase agreements are not much different. Well, they are different in cost — libraries pay many multiples of the consumer cost when they buy ebook licences. And for their money, libraries can still only purchase a narrow suite of licensed rights, nothing like the ownership model of old.

The longer this model continues, the more the local library will start to become a Netflix for books — that is, less like a collection built and owned by a community, more like a suite of content temporarily licensed from the publishing oligopoly. This may or may not sound like a dystopian future to you, but you had better believe it frightens the bejeezus out of today’s whare pukapuka.

In effect, libraries are choosing controlled digital lending to maintain the traditional library model in a world that’s diminishing it. In so doing, libraries are vastly expanding who can read what books and the ways in which they can read them. For many of us, that means getting little nice-to-have features, like being able to do a full text search on a book we’re reading. For others, like those with disabilities that prevent their reading print books, or for those who live far from physical libraries, it’s a complete game changer in access to the written word. Sounds terrible to you? Odds are good that you’re a publisher.

If this whole debate gives you strong feelings favouring either side, I hope you’ll agree that it surfaces important questions that demand to be taken seriously, not glibly. They’re also questions that demand democratic engagement here in New Zealand. The future of our libraries does not hinge on the outcome of an American court case. We write and enforce our own copyright laws, and as luck would have it, they’re currently up for review. If there’s a blessing buried anywhere in this whole kerfuffle, it’s the prospect that it might provide an opportunity to get the law on the books working properly for our books.

Michael Wolfe is copyright advisor to Tohatoha Aotearoa Commons.

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