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hello hello everyone and welcome thank you for joining us for the first session in a 2022 resource sharing conference virtual series on controlled digital lending for resource
sharing law and policy since 2018. my name is travis good i'm the newly appointed assistant director of public services at the university of texas at dallas and a member of the rsc planning
committee i'm very excited to be here with you all today to help kick off the first session of the rsc 2022 as it brings us together
as it brings the resource sharing community together for an annual event and also encourages sharing and learning and gives us a new opportunity to connect with our colleagues around the world
before we get started please feel free to introduce yourself in chat and let us know where you're joining us from i'm i'm joining you from dallas texas and i already see a few people from from texas that have joined
us so please uh mention where you're joining us from we will also take questions for today's present from today's uh presenters through chat as well you can post your questions anytime and
there will be time for a q a following the presentation we also hope that you will join us for an open discussion following the presentation today the details for joining that meeting will be shared at
the end of the session as a reminder this presentation is being recorded and a link to the recording and slides will be emailed to you when they are available all right
now we'll be moving on and introducing today's speakers we have kyle k courtney the copyright advisor at harvard univer university joining us
and also dave hanson the associate university librarian for research collections and scholarly communications and lead copyright and information policy officer at duke university
and now i will hand it over to dave and kyle thank you um and good morning all uh so i'm going to lead us off here with just some table setting we're going to introduce the concept of like just
what is controlled digital lending um at a basic level uh and then the bulk of our discussion today is going to be about what has happened over the last four years basically
controlled digital lending has uh sort of caught fire um in the last couple of years as the pandemic raised and people were looking for lots of uh different alternative access options as people are
outside of uh access to libraries physically um but there's there's a much longer story uh that precedes this um so to start off uh what is control digital lending i have a very um
oops wrong way a very basic definition for those of you who haven't encountered the concept before uh controlled digital lending is a system that enables a library to
circulate a digitized title in place of a physical one in a controlled manner um so control digital lending is a coin is a term that was coined um i guess a little more than four years
ago as kyle and i worked with a much larger group of people to hash out uh what are acceptable um and and reasonable pathways forward for libraries to provide legal uh digital
access to things within their collection and as we all know there's been lots of work on digitization and digital access for many years i was just thinking you know it was 2003 when i go back to
when google started doing the google books digitization project we're almost 20 years on from that and you know through that digitization project and then some of the follow-on things that came from that like hadi
trust uh lots of organizations looking around and saying how can we leverage these incredible opportunities that we have to provide more access to
digital access to the materials in our collections and of course those two projects provided some access through public domain materials and other things where they were able to get permission but on
the whole when you go to google books or hottie trust access to incopyrighted materials is still very very restricted they were both involved in litigation uh that
informed our approach to control digital lending and that litigation dealt with uh much more conservative access access basically for search functionality um and so you know back around uh 2016
2017 2018 uh a group of interested librarians and lawyers uh got together and started talking about like what are the how can we help the community make some progress on uh providing
access in ways that are reasonable and that fit within the law that conversation started very much with a u.s focus and so i want to say just at the outset here what kyle and i are talking about is very much focused on
u.s law that's not to say that controlled digital lending does not have application outside of the united states but the legal framework is obviously very different when you're looking at other jurisdictions um there have been
some great efforts for example there's a paper that recently came out in february focused on controlled digital lending of library books in canada and there are other similar um efforts around the world to look at how
this the same framework could be applied under the law of different jurisdictions um so uh one of the results of those early
conversations was uh a statement um on control digital lending by libraries uh that describes cdl as an emerging method that allows libraries to loan print books to digital patrons in a lend-like
print fashion and as we work through kind of the principles that underlie just library's ability legally to do the things that we have always done in lending physical books
we we really focused in on what are those principles that that make that economic system work and how can we translate those into the digital world and so if you go and look up control digitalending.org
which kyle has put into the chat that includes a copy of the statement which at a high level addresses basic principles for application of cdl
and on that website you'll also find a link to a rather lengthy white paper that kyle and i wrote outlining the legal arguments in favor of controlled digital lending and the characteristics
and the limitations that libraries ought to think about applying to cdl to manage risk and to make sure that they're fitting within a kind of generally accepted framework of the law
um so so a lot of those conversations were happening around that time but uh cdl actually has a much longer history um the basic framework uh this idea of taking physical books scanning a copy of them
and lending them out in a land-like print fashion meaning you know providing one-to-one access you don't have multiple people accessing a copy at the same time and where you're controlling access to
the physical copy when the digital copy is checked out so that you are maintaining what we refer to uh as the owned to loan ratio kind of maintaining that economically similar transaction
uh well internet archive had actually been doing that for quite a while um so this is an article from 2010 uh now 12 years ago um where the wall street journal wrote up ia's approach to uh
what later became known as controlled digital lending uh the um so uh so it has a rather long history
and uh led us into some additional uh uh pathways where we needed to define um what uh what libraries really do from a legal basis uh
in a uh in a day-to-day transaction with physical materials and let that kind of lead into what or how can we define um a framework for legally lending uh in the digital context
um and so this will sound a little basic um but it's important to set this the stage for how we get to the legal argument for um for cdl uh so first how do libraries legally do what we do i'm not talking
about digital lending i'm just talking like basic i have a book in my collection and i want to lend it out to users and you might be thinking to yourself why do we care about the law there's no like legal implication there but actually there is uh there's a
framework that we have to walk through to understand how libraries do that and that helps inform how we get to a framework for cdl uh so first it's important to recognize there are these statutory exceptions in
copyright so copyright sets this basic uh set of rules um this is the the uh outline the table of contents of chapter one of the copyright act um
and copyright sets these basic set of uh rights that uh rights holders get if you look here these definition of rights at the beginning what is covered by copyright the subject matter and then in particular section
106 you'll see a very small font there the exclusive rights of in copyrighted works and um so it defines these very specific rights that copyright holders get but those are
subject to lots of limitations sometimes we view these limitations as like special exceptions but they're actually very much baked into the copyright economy without them the whole thing would break apart and
how libraries land books is actually a great example of that so this is the text of uh section 106 those exclusive rights that copyright holders get it's important to recognize that
sometimes we refer to this as like the bundle of sticks the bundle of rights that uh rights holders get it's not unlimited they they don't have unlimited unfettered control over the copyrighted
works that they create there are some very specific rights but they are broad that includes the right to control um reproduction sorry there's my little bundle um
uh that includes the right to control reproduction um basically copying right and that's a pretty broad and basic right the other thing um if you look at number three on here copyright holders
get the right to control distribution of those works in particular distribution to the public in all sorts of ways by ownership rental lease lending and that's a very broad right if you sit
down and think about that right i wrote something um i have rights in that and i get to control how that copy gets distributed to anyone out into the future that sounds very very extensive
copyright holders also get other rights for example the right derivative works and the right to control performance and to control display um i want to sort of cabin those for a moment those are
important um and may be important if we're talking about application of control digital ending to other media formats like um like film or video but at the moment what we're focused on is controlled
digital lending of library books um and so from a textual perspective really what we're focusing on is reproduction um and this distribution right um and when we look at those two bundle
those those two sticks in the bundle they are very broad and if we didn't have limitations on those it would pose a real problem right for libraries to say we bought a book in our collection and we want to lend that out to people we need people to be able
to use it um and we need something to accomplish that um and so we know kind of intuitively that it that can't be the end of the story there has to be
more to allowing us to make use of these works uh and it's true actually it's been the case for well over a hundred years that the courts have recognized that that right to control public distribution or in the
past it was referred to as the right to control to vend um is limited uh and there's still some confusion i thought this was entertaining this was uh just a couple days ago
showed up on twitter someone showing a statement that was posted in the front of a book basically saying that you can't do anything with that book once you have it it's for your personal enjoyment only
and that the book cannot be resold or given to other people and that's an interesting attempt to control downstream distribution of that book or that copy of the book uh but it's ineffective the courts have said for a
very long time that you basically can't do that the copyright act sets up this balance of rights as between rights holders and users and one of the things that users get is the ability to control use of
particular copies that they buy so this is where the doctrinal for sale comes in so first sale basically says that notwithstanding section 1063 that's the public distribution rate says the owner
of a particular copy um lawfully made under this title uh is entitled to sell or otherwise dispose of the possession of that copy so that basically says the rights holder gets to control the very
first transaction that happens with a particular copy but after that those rights are exhausted in other parts of the world this doctrine is often referred to as the exhaustion doctrine
so that's the basic like how we lend physical books you have to jump through these hoops and every time a book gets checked out from your library all of this legal process and all of this legal framework uh is happening behind the
scenes to make that happen um so one of the challenges that we face when we're talking about digital lending is that there's an additional right implicated right so it's not just that
we're distributing the file um in order to effectuate control digital lending uh we have to have an intermediate reproduction made right um just that's the way computers work uh when a file is
moved to a computer that file is reproduced and so we have to think about not just the distribution rate but the reproduction right as well and luckily the copyright act includes
mechanisms to deal with situations where you have multiple rights being exercised at the same time and where uh technology has sort of changed the situation from how the copyright act has initially defined
the the framework for for analyzing the situation and the main tool that we have to deal with that is fair use and so fair use applies very broadly
it takes a kind of principled based approach and says notwithstanding section 106 that group of rights that copyright holders get the fair use of a copyrighted work for all of these different types of purposes
these are all listed as kind of examples is not an infringement of copyright so fair use is a little more nuanced than just looking at those examples what the courts and what congress gave
us are a list of factors that we're supposed to consider and think through when when trying to apply this doctrine to any particular type of use it's very fact intensive it is very much dependent
on the particular circumstances that you're applying it in but as we run through these the basic argument for cdl uh looks pretty good um so first we look at like the purpose and character of the use
well in the nonprofit library setting where we're mostly lending materials for the purpose of enabling learning research those sorts of things that actually ranks very highly uh for
for fair use purposes those are very similar to the examples that were given in that preamble section that i just showed you so that that's pretty important one of the other things that shows up in some fair use cases is also a
recognition that fair use ought to facilitate other congressional statutory objectives so for example the americans with disabilities act talks a lot about providing
access uh broadly to people who have a variety of disabilities and so the courts have looked at things like fair use and said well we can use fair use to help accomplish those objectives and
we've seen that in some other cases too and so one of the very strong parts of the fair use argument for cdl is that fair use is being used to accomplish those same sort of economic objectives
that are based baked into the for sale doctrine um some of the other factors the nature of the work and the amount and substantiality used uh don't always come into play quite as significantly in all fair use
cases and we believe in this situation they may not carry the day you know nature of the work looks at things like was the work published or unpublished um with published works tending to get treated more favorably in the fair use
analysis which for books would would carry here um but uh also those those two uh are very much dependent on the strength of the first factor um and the very last factor
uh which brings us to then the last issue here uh the last factor which is what is the effect of this use on the market for the work and i could spend a lot of time talking about the different market
characteristics of different print book material print books and i know that lots of people on this call know an incredible amount of what that market looks like the basics of the fair use argument here
is that what we're trying to do is maintain economic parity with the initial print transaction right so the library has paid for that book or otherwise legally acquired it so there was a market transaction that happened
and we're not trying to really get more than what we paid for here we're just trying to shift it into a format that's more meaningful and useful for uh users in 2022 and so
you could argue that there is a market effect there right we're lending out a book and that could represent you know a lost sale maybe there was an ebook that could have been bought or even a print book um and that's not really the market that
fair use is concerned with that's part of the the market balance that congress has already set up i mean just the fact that libraries exist is a potential market harm to
to rights holders in that we buy one book and then lend it out to many people and theoretically um each one of those lends could represent a lost sale or some uh some risk of a lost sale but that's okay
that's baked into the market and so what we're trying to do here is mimic that kind of market effect not totally eliminate it
but maintain the status quo so at its core uh cdl is about replicating that with digital lending that that legal and economically significant aspects of the physical ending um and so in this
statement uh that we that we helped draft and in our white paper we identify a few characteristics that are really important to keep in mind um and just list them here you can go back and
this is a lot of text so i won't read this off to you but some characteristics of how to make cdl as close to that physical um legal and economic situation as possible
the key things here are you know limiting the total number of copies in any format in circulation at any time so i saw not paying super close attention to the chat while i'm talking uh but
um you know maintaining that if we have a physical copy we're not lending that out at the same time as lending out the digital surrogate of it and then placing controls on that digital copy to make sure that copies
don't proliferate and so with that i'm going to hand it over to kyle and he's going to take us into the the current uh situation of just what's happened with cdl over the
last uh several years all right hi i just wanted to turn on my camera and say hello to everyone but i'm going to turn it off for for purposes of saving a little bit of bandwidth
um but thanks dave um for for doing that uh we keep talking about the whitepaper so i i thought i'd just throw a link in the chat if you like a nicely clean version that's not html uh we host
one online so you can have a look at it there as dave said though um those were the foundational basics that we wrote back in 2018 but of course uh just for the
record uh people were interested in it um but not nearly as much as uh when we had the unfortunate occurrence of the pandemic closing most of most of our libraries um
as well so uh the explosion interest has been it's been fascinating um and rewarding and just as of now um over a hundred uh uns and canadian libraries and with one other country
coming on board soon actually and publishers have harnessed the cdl system to learn digital live digital copies and i'll note that it's sometimes specific collections like the allen county public libraries genealogical collection sometimes it's
back catalogs of particular publishers um houghton mifflin harcourt for example uh the brickhouse cooperative which is a bunch of journalists that get together decided to sell digital copies to be cdl loaned but also some major uh library
systems both law library university library systems are using some version of cdl so that that is a rapid and fast explosion and again as i as i was indicating earlier it's it's due to the fact that
we had these cove enclosures right the covet closures did something interesting it had us look inward at the collections that we had that were on our shelves that were technically unavailable to our
community because of public health closures and so as we know certainly control is one aspect of controlled digital lending so a lot of people asked if these closures
afforded an opportunity for the libraries to start using control digital ending as a method of loaning that which they could not access physically and and
you know overall it came out to be that cdl illustrated some of the limitations that we have on our physical collections that we
potentially could take advantage of during this a terrible time for the world so at the height of the closures over 625 million books it was estimated were
trapped in libraries and these are things that are already on our shelves which we have purchased which we have rights over right significant legal and economic rights um so this problem
with the clotures illustrated that we need to expand digital access right with the shutdown of these collections we we had to do something a lot of places were like we need to do something either either temporary or permanent but we need to do something
and that physical access even limited physical access or picking up works i know a lot of public libraries had like drive up library and stuff but the con the context here is
it wasn't enough for lots of vulnerable populations that we currently serve and not just through the pandemic either i walked i i worked with a lot of public libraries that had um seniors that could not come in or people that were disabled
for accessibility reasons that are that were deployed overseas we had a lot of reasons why physical access wasn't enough so we needed to develop some either backup options or explore permanent
options and this was across which is great all of our communities uh whether public private university historical societies everyone was considering this uh so it illustrated this now here's something
that's really interesting we're already in this space right it's not like libraries haven't entered the world into digital we've been doing electronic document delivery digital interlibrary loan uh some places doing virtual reading rooms for years right the old
concept of resource sharing is a natural outgrowth of our mission um and so this is just another step you know dave and i view this as a reasonable step um just being heightened
by the pandemics curbing of our mission but it doesn't have to and our users are already in the digital space this is one of the things that i will trumpet on high some of my students that i work with you basically have told
me nothing exists to them unless it's digital in some way so why would we be restricted from this digital space where we have already been operating for decades where we've already been doing research sharing but
cdl is somehow one step too far um and so that's that's where we started in moving the white paper uh from just a paper to actual practice and this increased the
ability for us to explore different options i we basically said read and use the white paper please right we made that available now we saw this reflected in various efforts hathitrusts etas which i'll talk about
in a moment the formation of the controlled digital lending implementers group which basically has monthly meetings since 2020 of of people exploring or using and implementing cdl across the
united states and canada we also saw a lot of cdl for reserves one of those temporary limited methodologies but one in which we had already been doing reserves work for a year and a variety of other
local implementations that also served distinct communities and i think that's kind of the most exciting part is this experimentation that we've seen that is built off this paper um i i'm calling out happy trust here
specifically because there's uh what's called the emergency temporary access service or etas now they did not define this as controlled digital lending they designed it as well within the rights they had in the creation of the hapi
trust corpus now mind you the little background um kathy trust formed up as a result of universities working with google books google books came in and scanned the entire corpus uh they got to go off and
form google books as part of the deal they donated all the scans back to the university libraries which then formed hottie trusts corpus um basically having trust is the living embodiment of of that owned alone and
friction elimination that dave was was mentioning before owned alone meaning as many books as you have in your collections we can check out right so if 10 universities have one copy of that book that's 10 potential users that
could check out that book that are happy member libraries and friction elimination is we don't have to wait for the van or the bus or the interlibrary loan
unit to cart those books around to ship them right as soon as someone's done it goes to the next person so hati member libraries their patrons could check out a book digitally for one hour i'm sure many of you uh maybe even saw this
accents would renew automatically and then unless another user requested the book and then it would go to them instead and my favorite part they had a return early button which is amazing right no waiting for shipping no concern
about the book being late you can return it early and the next user would have it and again because it eliminates that friction that friction that happens at the circ desk that friction that happens in the interlibrary loan department this is just one example of an interesting
method now this is very much built off something that we should be very familiar with they've outlined this um in the in the first sales scenario but we acquire coppery as a library we check it out to one person at a time for a
limited time period we then return it to that library right the concept of returnables and it's made available to the next person and we repeat that process and again because of the exceptions that dave outlined without permission from or
more fees paid to the copyright holder this should be familiar by the way this is a digital loaning system it's also a physical loaning system it's also the reserve system it's also the interlibrary loan system everything is
based off of this particular system so one of the more interesting ones that developed at the time and and really grow grew during the pandemic but certainly that was existed
long before that was the open library system open library is internet archives version of controlled digital lending right and it was launched in 2007 actually with the goal to make all the published works of humankind available
to everyone in the world which is an amazing amazing mission statement now open library had more than a million public domain items that had scanned in initially um but then they moved um into the
physical realm where they were scanning collections of of partners for library digitization and expanded by the fair use analysis um this method was then renamed after
those series of meetings as controlled lending so by 2017 half a million books were available to borrow under cdl and ia eventually formed the consortium called open libraries which relied on
the physical holdings of the partner libraries to expand access and this way using something called the statistical method in which they count up uh the number of books that are available and in the systems the open library could
lend a particular work to more users simultaneously but still maintain that own to loan ratio right they can't lend more that than their partner libraries have so again currently it's up to 1.4
million books available for borrowing now this wouldn't be a good segue if we didn't at least mention the national emergency library the national emergency library launched
in the same way in response to a covid 19 pandemic closures and they cited when they launched this an unprecedented global and immediate need for access to reading and research materials
right so ia did something interesting here they suspended their limit their lending limits so that all materials were immediately accessible to borrow even if used by another borrower and in that way it
altered one of the primary controls of the cdl system uh national emergency library did not restrict loans to one user at a time per copy legally speaking according to dave and i nel is not ctl
right however nel did use the same cdl technology that runs the open library program and other practices remained such as access ceased after a two-week loan and the work was restricted to prevent
any copying or redistribution so the nal program added a simple opt-out process too for authors who did not want their works available in this matter if you didn't want your book in the nil you could write them and they
would take it out and by the way uh they didn't allow any works that were published within the last five years to include in the nao so that was some of the difference um between that system but i just want to
point that out however both systems cdl and and uh nel were mentioned in the lawsuit and of course we have to talk about this
because you know they cite into the white paper in this the publishers filed a complaint in the united states district court for the southern district of new york in 2020 that targeted the national emergency
library and the legality of controlled digital lending now the outcome of this case will largely hinge on whether cdl or the nal fall within fair doctrine fair use
doctrine of copyright law and i'd just like to just quote a couple things from the publishers though they filed a complaint and in the complaint they do profess their love of libraries
both hatchet penguin house harpercollins wiley we we love public libraries on the long supported public libraries however they also inexplicably claim that their mission is not one of for-profit or
generating revenue for the shareholders and investors but one of education um and they they said something here that's really interesting it says internet archive merely exploits the investments that publishers have made in their books and does so through a
business model designed to free ride on the work of others um and for a moment and someone did this in an article i just read recently they took out the word internet archive and they
replaced it with libraries right that idea and this complaint seems to be a veiled attack on libraries and so just for the moment play along with me it is authors and publishers who create the books of scholarship and literature
for educators students and other readers libraries create nothing libraries play no role in the hard work of researching writing or publishing the works for that ecosystem i'm skipping a little moreover library's massive
lending business has no new purpose that is fundamentally different than that of publishers both distribute uh entire books for reading and then they close with that sentence that you know
got my attention in short libraries merely exploit the investments that publishers made in their books and do so through a business model that is designed for a free ride libraries undermine the balance and promise of copyright law by usurping the
publisher's ability to license and sell the books that they have lawfully produced on behalf of others and for the benefit of readers a lot of people that looked at this and you could put in interlibrary loan
e-reserves the word libraries this is not just a general attack on internet archive in the process of controlled digital lending um this is an attack on loans in general i think this
is why i was very excited to talk with this community because this is a veiled threat that the vlogbrothers the publishers be able to license and sell and the libraries are taking a free ride and it gets back to something that dave
mentioned earlier that i wanted to enhance every loan of a book is not a lost sale it seems to be that they think it is and then as many of us recall in 2018 when
mcmillan said that library loans were cannibalizing uh their their sales and they use that word cannibalizing we saw that the height of the struggle and a few people had mentioned that they're
finally saying the quiet part out loud um and so cdl just represented a front for these publishers that was too much now i i obviously disagree with most of that i
think dave reviewed those exceptions for you we don't undermine the balance and promise of copyright in fact if anything libraries care very much about the balance of copyright
however we do not license and sell every book right we open the access and make it available to everyone and congress and their wisdom has enhanced the vital service that we
give to society through reserves and interlibrary loan and other elements of resource sharing um so and so we're hanging on hat on every loan of a book is not a lost sale this is this is a hard thing to overcome but i just wanted
to mention just for the moment that the lawsuit processes does not mean anything has been decided everything that dave and i have talked about today the 100 over 100 libraries in the usa canada are doing
this are certainly watching this but this is a long legal process i'd just like to review that basically i just went over the complaint the complaint was filed in 2020 which is the first step in a lawsuit where the
plaintiff lays out their version of the events um and describes how the defendant's harms uh defend its actions harm them right and usually they ask for monetary compensation or injunction or something we have had that complaint we
saw that also internet archive has answered that complaint and that was their opportunity to respond to the complaint now no legal arguments have been made here in the answer the answer provides the
defendant's versions of events and either admits any statements in the complaint are either true or denies that they are true that's about all that happens in the answer then you move into that next phase discovery
and this is the process where everyone gathers evidence right it allows each side to get documentation um to get a better understanding of their prediction their their legal position and to develop strategies for the arguments
that are to come when they actually uh go to trial now this involves depositions or basically interviews with interested parties interrogatories where you answer questions via email
it also is a lot of document production right a lot of documents are shared and that has also happened in this case uh what hasn't happened yet is motions
trial or appeals and that's coming coming soon motions is probably the most interesting part in the beginning cycle prior to trial and this is where either party can
try to end the case by filing a special motion with the court that says hey we don't even need to have a trial right it's called summary judgment we don't need to have a trial this is clearly uh in our favor or the other side's files
of motion to dismiss it says you know there's there's no reasonable reason that we should have a trial here we should dismiss this for the following reasons um motions are happening now that's going to be happening late spring or early summer
and that can take um a very uh interesting um path because you can actually have appeals process over motions to dismiss or summary judgment motions meaning
higher courts can hear it and they can appeal and then it comes all the way back down eventually when the motions are over with and any appeals underlying motions then you actually have trial when trial would come on this case
is probably earliest of november of 2022 maybe later depending on how everything goes and then a decision a year from maybe even now or further out and then there's the the appeal
so this is a long way to go and i would like to remind everyone nothing has been subsided about controlled digital lending kit right it's being used currently and i would remind everyone on this call if they
want to think back to the e-reserves case that occurred many moons ago that that took 12 years to decide if one chapter or two chapters on an lms or
blackboard or canvas was was either fair use or not 12 years to make that determination did we stop using e-reserves in those 12 years absolutely not we did not um so just note it's a while before we decide
so is there support going on now um you know this is kind of interesting yes there's massive amounts of support these major organizations all signed on the initial statement many many more
that i can include their logos on the screen have supported it further we have seen vendors step into the cdl space and either allow their software or platforms to be used for cdl or
specifically developing cdl uh interested software expansions of their software which is which is very exciting in many ways so we've seen libraries do we've seen publishers do it and now nyso has entered the fray this is a
technological project to develop a consensus framework in support of cdl to be published as an iso recommended practice and this framework will describe the existing practice and
decide best practices including for circulation for interlibrary loan and other aspects of cdl so this is a very uh this is very important uh for this because niso interoperable
technical standards are very important to our communities in general so overall i hope i've at least dave and i have discovered that because this is being used by so many people and its methodology is is interesting and being
developed and we've allowed the last two years of experimentation this seems to be a low-risk reasonable solution that preserves the legal and fiscal value in the library collections that we have built which is amazing
so i'm going to kick us off with just a couple words about cdl for resource sharing and then dave's going to take us home here just real fast obviously if you believe in cdl then you
should believe in cdl resource sharing right interlibrary loan has been around for a while and that concept that it adds certain historical prestige to trace its development to trafficking
clay tablets which i read about years ago and to indicate variation on the purposes and techniques since the ill code was written down in 1917 the principle is the same as it is today to
aid research calculated to advance the boundaries of knowledge by the loan of unusual books not readily accessible and to augment the supply of books for the average reader including the average book and this is
where we get a little bit of a difference here section 108 is the engine behind most resource sharing activity including document delivery preservation and interlibrary loan um so i believe dave's going to come in here
and talk a little bit about the dream of shared access as we close out the session here thanks kyle um yeah i'll jump in here on this i did want to mention too on that
slide kyle had a bunch of the different organizations that have supported cdl um and the different uh vendors who have gotten involved i i think it's also important to
recognize that there is not like universal publisher or author opposition to this in fact even to the national emergency library in the midst of that there was this really nice press release
put out by the university of north carolina press and duke university press and so even at that kind of political level um there's a good deal of agreement especially among mission-driven
um authors and uh publishers that this is the right thing to do we ought to be leveraging these collections for uh for broader access and i think that fits really nicely in
with um the consortium or the sorry the resource sharing part of uh or application of cdl so there has been for a long time this dream that you know if we're able to do digital lending with
our users how much better can we be as a community of libraries if we can leverage that for all of our users pulling them together
so michelle wu who's the former director of the law library at georgetown and a lawyer wrote a really compelling argument and a paper in 2011 titled building a collaborative digital
collection that essentially outlines the case for using controlled digital lending to lend materials amongst institutions amongst libraries for the benefit of our users
it just makes so much sense from an efficiency standpoint um we're talking about you know using a common set of digitized material similar to how hottie truss operated with its emergency temporary access right they were the
centralized repository of these digital texts and we're relying on institutions that had their own physical holdings to lend those things out so just from an efficiency standpoint you gain a lot
but of course there's more than that the real ideal with shared access is that we're able to take collections that um are far-flung uh that are
really uh special even unique um and make and open those up so that users across a much broader spectrum of libraries uh are able to use those um
so uh there's been some efforts uh really trying to hammer out uh what this looks like to use cdl as a mechanism for resource sharing one of the groups that has formed around
this to help move this forward is something called the cdl co-op which is let me skip ahead a little bit um which is listed here uh this group of
individuals who are all associated with libraries and um has legal expertise uh and we've been working together over the last uh gee i guess it's a year um working on how to
help other libraries understand how cdl fits in with this picture and how to navigate some of the legal issues with using cdl in this broader way um
so so some of those issues kyle and i are currently working on a second white paper working through cdl for interlibrary loan and part of these part of this is just clarifying
how cdl is different from some of the other types of like document delivery type uses that we make under section 108 uh so section 108 is focused in on particularly section 108 d and e
talk about making copies for users either of small portions of materials or even whole books but it's a very different framework and in a way section 108 is actually broader and more permissive than what we
are proposing with an application of cdl section 108 for example makes no requires no limitation on the number of people who can be looking at those reproduced copies
in relation to the original physical you could have a physical book in your collection and copy a chapter or even the whole thing multiple times and have those out to different users so in a way it's actually broader
and what cdl is focused on is actually creating a system that's roughly equivalent relevant to what we use with returnables right physical book gets lent out to another library
a user uses it only one person is looking at it at a time it's just in a distant location and that's essentially the same idea for using cdl the other place that we feel needs some
clarity is about application of cdl to ebooks and in general uh the principles of controlled digital lending don't come into play there and that's primarily because there are licenses and contracts that govern how
libraries relate to the rights holders uh for e-books and so cdl is sort of dealing with the the default copyright system the default set of rights that we get under the copyright act to lend
materials and exercise our fair use rights when you throw in a license or a contract it changes that full dynamic and that's a whole separate issue that's another major problem as i think many on this call know
of what those contracts look like and what they allow us to do or not do but that's not the issue that we're trying to address here so those are separate and then a third big issue that we're
going to try to address here is what are the risks associated with lending beyond a library's main user group so for example let's say my library has a pretty risk of reverse approach to control digital lending like we want to
do this we want to allow people to get access to our collections more broadly um but uh we don't want to um you know
digitize uh super modern materials like we're just we think that maybe those are higher risk maybe they'll cause more lawsuits or something and so we say well we're not going to lend things that were published after say 1989.
uh well what if one of my users borrows requests and we we facilitate a borrow from another institution that's much more aggressive and they scan a book that was published last year
and it comes in and then turns out like there's a lawsuit around that well i think the principles of cdl still hold up and there's a good legal argument for defending that but it certainly raises the risk and so how do we share risk and manage that risk
amongst institutions is a really important question when we may have different models mixed together um you know the primary underlying thing though that we need to keep emphasizing
is that digital access and loans do not negatively affect the market any differently than the legal uses already permitted by libraries and in the interlibrary loan context that's no different than the direct loan to our users
some of the objections some of the issues that come up here are the same you know one of the arguments that we hear is oh well physical books wear out and um and so that's really a different
situation than um digital books uh or scans and i find that pretty laughable when you look at the costs involved with maintaining digital files in fact they're extremely expensive and
extremely complicated to maintain the integrity of those files they absolutely wear out they wear out in different ways but it's a major issue another issue
that is often raised one of those friction issues is that well physical materials um are very difficult to ship and move and that friction is part of the market that's that that were that's built in for the
print market um and again that's one that we can look at and you pull that apart and you say well yeah that that is part of the physical situation that we have when we're talking about returnables and
sending materials between institutions but that's not a market that the copyright holder gets to exploit that is you know maybe we're harming fedex maybe we're harming ups but they don't have a right to that market and so that's not
really relevant from the copyright standpoint and all of those same things are true for this as well so i don't want to spend a ton of time going through this statement on
controlled digital ending as a mechanism for ill it has a lot of detail i did want to highlight a few of the different pieces of it and give you a sense of what we're trying to accomplish
um so the what we're aiming to do there is a few things one is just increase awareness about cdl in that context and affirm libraries rights to use cdl as a way to
accomplish interlibrary lending um and uh and then lastly just to improve the service provided by the resource sharing community uh with these so that we're all kind of on the same page about
uh what is going on here and so when we developed this statement there was this group that was listed on the previous page that that did this but we actually involved and uh solicited a lot of good um comments
and feedback from a broad segment of the community that has uh helped inform what this statement looks like so just to give you a flavor you know we talk about how interlibrary loan is just foundational a congressionally protected
practice long empowered by copyright law and um you know going back to what kyle was talking about with the internet archive suit and this real attack on the kind of fundamentals of how libraries do our work
it's important to say this that interlibrary loan is an intrinsic part of the system and that just because we're using different technology to accomplish it doesn't make it uh any less part of the system and any less
part of the existing market balance and and that's a really critical thing for us to recognize and and keep beating the drum on because i think it's easy in the publishing lights
in the licensing market that we have uh to have that reality squeezed out there's a lot of talk about balance and balance in favor of authors and you know really libraries are the balance uh that
that we are part of this system um to enable users who you know otherwise can't afford to get materials to to have some probably not equal but at least uh you
know some semblance of access uh and um some ability to engage and learn uh at the same level as everyone dave i'm gonna i'm gonna i think we're i'm gonna pick my favorite
one yes um i you know there's a lot of them here um that are good and i put the statement in the thing but if we could just go to number seven um i'd be sorry number eight
interlibrary lending physically or digitally is a legally protected activity within the marketplace this is exactly what you were just saying right here's the market that we have and employ um and so using
controlled digital lending as a mechanism for ill has the same effect on the market as other methods i i like putting it as a non-threatening thing like this is if you believe in cdl
then you have to because of the returnable nature of it believe in cdl for ill um and i think that's that's a critically important part of this some of these statements are obviously um you know
important for our community to know um but for outside the community as well dave right that idea that we're telling them interlibrary loan is a thing it exists and that's why statement 9 got the most thumbs up when we went to
our peers and said we know this best we're the everyone on this call is well versed in digitization access concerns technology resource sharing platforms um and so i i
think we're we're describing what we do on a daily basis here in a statement that just says these are all linked together um and and when we were drafting this
one of the exciting parts was we noted that the tenants of interlibrary loan resource sharing and the tenants of controlled digital lending are the tenants and mission of libraries right we were just basically repeating
um in the same way what we are meant to do which is to continue to provide open non-discriminatory access to books for our patrons um and and i know that there's a lot
more of these and i think we're we're running short on time um so i didn't know if uh i think we're right at the end here we've got a couple more slides and
actually the very last one i was hoping you would take here about legislative and policy efforts oh yes about the lawsuit and all that um there are other ways to deal with and address uh
how to make the law fit with what is really necessary for libraries absolutely so the the dream of controlled digital lending uh being just another tool
another arrow in the quiver of tools that we have as a library can be done through legislation as you noted dave and i have reviewed lots of kinds of legislation today right section 108 section 107 section 109
um but there's always that idea that is there a concern in letting the courts decide because again it took 12 years for e-reserves do we have do we have to wait for 12 years well no um
you know dave and i both work with an organization called library futures i co-founded it so i'm a little more involved and library futures is a non-profit
group that's designed to uh fight for the right of libraries in the 21st century and especially obviously focus like a laser's name on digital rights so we did some hill walks
both physically and virtually in 2019 2020 and 2021 talking with members of congress about controlled digital lending um and you know i i floated this idea this is not a real idea i call it cdl the bill
um but that idea like would we have to do something legislatively do we would have to amend the copyright act and there's a lot of discussion could we amend section 108 which drives resource sharing
to be reflective of something basic that would reflect the fact that cdl is just another tool just like interlibrary loan document delivery and preservation are in 108. it would have to be a particularly narrow focus
but there's a lot of concern about um careful legislative process for this right when you open up something uh introduce amendments right often libraries aren't the power brokers in
the room with regards to legislation and policy we have important things to do but that concept that that cdl could be there is kind of uh interesting so certainly um these discussions are
happening but nothing is definitive um and so that oh that is the last slide so we have a few questions and uh we wanted to get to some of these before jumping into the discussion portion um
kyle i think you can see them on the other screen uh but um i'll just try to address a few of these which i think are pretty easy to get through the first is about international um lending people having
users in other countries and how cdl might apply to that uh so the framework that we just talked through is entirely based on u.s law um there are other good analogs in other jurisdictions um
i would this is just general advice for anybody thinking about a cdl system that's uh you want to talk with your lawyers uh whether you have general counsel or if you're a
public library if you want to talk with your county or city attorney but especially if you're thinking about international application and really when you start looking internationally it becomes more of a
risk balancing exercise than a precise examination of legal systems all over the world just because it becomes kind of impossible to do that for 180 different jurisdictions but i have i do
know of some libraries that are doing it currently yeah i'd just like to say like i i worked in interlibrary loan resource sharing that's how i came up i interned in that department we used to ship books all overseas all the time
right um and i used to pay in ifla dollars um so i'm very appreciative of that question that you know we used to pay our ifm fees for for loaning a book ifla and i put it in the chat just now released a statement on international
cdl basically endorsing that method and saying we should probably do this for all libraries now that's a great statement but it made me think about i don't feel particularly limited
with regards to interlibrary loan for physical books except for the shipping time wouldn't it be amazing to decrease all that shipping time and all that friction by harnessing cdl in that way
great question um so another question that came in was about uh what platforms or libraries you need to lend digital copies of books and i think a really great place to look for that um cdl implementers uh including
uh earlier and there's some really great resources to look through there that identify different um different the wide variety of different ways that people have implemented this on yeah and they do monthly meetings like
it is not like this community has slowed down i'll put that link in there again we have an open google chat list serve if you want on the ground detailed review of these implementations
we have someone basically come in monthly and talk about it from all kinds of libraries and from all over the world actually which is really interesting um so one other in here is about the
national emergency library why did it close down so quickly um and that was actually by design uh internet archive set that up as a very much a stop gap you know think back to the beginning of
the pandemic everything stopped um i know at duke we had students students couldn't get back to the country they couldn't get their books uh on time all sorts of international transactions
particularly physical ones just came to a grinding halt and so they said as a stop gap we're going to set this thing up so people can get additional access when they need it but we're not going to run this forever and that's what they did they followed through and they shut
it down within a matter of months as the global supply chain basically restarted at that point absolutely um i'm looking through the others here
there is a good question this comes up often is it possible to use cdl for visual works akin to literary works um i often get asked questions about how we could use cdl for other types of formats
the white paper that we wrote is very much focused on the marketplace for books the same basic fair use arguments i think hold true for other types of materials but
the market is very different and so that part of the analysis i think would change the other thing is when you're talking about visual materials or certainly um moving image you start to get into some
of those other rights like public performance or public display and so the analysis is a little more complicated and uh the other thing is the risk in some of
those fields is much more significant just because of the aggressiveness of rights holders uh but the same basics would apply uh that's one where um certainly if you wanna do that it's really important to work through what
the legal rationale and the kind of risk factors are for your institution i think that question gets to what was alluded to uh earlier with the what about ebooks right what about visual and
and certainly music and film and and visual audio are more likely to be licensed than the materials that are on our shelves remember if you if you put a line down the middle cdl's for everything we already have on
our shelves and own in some capacity that we can utilize a first sale fair use analysis for it our future collections right have the problem of the licensing of the ebook problems but dave i mean you and i have been doing this while
that's probably the number one question we get can i cdl this movie yeah that's you know and and and i just want to remind everyone cdl is but one tool in the arsenal in which you can do this
there are i mean fair use alone can get people a long way here but this is a specified purpose cdl is for the things that we have already legally acquired and have
access to because as a result of being part of our collections yeah i think a really good example of that is i had a conversation with folks recently about vhs and how to digitize
vhs and make that available to users and cdl in my opinion isn't the greatest option for that because we have other tools that can allow us to have broader access and so there's a great project that kyle and i
are both part of that is working on basically investigating the right situation behind vhs and when those can be made available there's a great report out of nyu called video at risk so
for that kind of thing it's often worth looking a little more broadly but it naturally gets people to talk about these things that's what i like about it cdl fosters conversations about access
that we may not have had before about our collections and this is why i think resource sharing might have the most promise to that yep um so one last one uh i'll address and then we can go off to discussion is
about security procedures like how do you make the digital copier that you're creating uh how do you make sure that patrons um can't you know redistribute and um control that uh and there are a
variety of ways to do that in the paper and in the statement we talk about um using drm to control that which sounds like antithetical to everything otherwise tell people but um does provide effective control and one of the
things that i think is very uh it makes for a very good argument here is that uh several libraries that have done this have said we're going to use the same security features that publishers use to control access to their own ebooks so
they're using adobe drm we're going to use that too and i think that's a really powerful argument and counterpoint to this this idea that libraries are just making copies that are going to get distributed everywhere out into the world and it'll
destroy the market because if publishers are confident enough in that technology to prevent that from happening with their own licensed ebooks i think that makes for um we should have the same confidence that we can use those same systems for our
digitized copies all right um so i think we are good for q a um and i'm just looking over here in the chat for any discussion uh direction
around um discussion yes dave so i would like to thank everybody um for joining us today and um we will have the presentation recording and slides available within the next week
and if you'd like to continue the conversation with today's presenters in our discussion session please join us at the link post posted in chat
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