Why Controlled Digital Lending Matters to Schools

As an educator who has built a career around the research and practice of how the use of information and knowledge impacts continuous improvement in all aspects of education, I read with great interest the recent position statement on controlled digital lending written by copyright scholars and endorsed by a number of libraries and institutions across the country (including my organization, ISKME). It makes the case that while libraries have for the past hundred and fifty years provided social benefit by creating access to information that expands public knowledge and understanding—that is, educating and creating an informed citizenry essential to a functioning democracy—the advent of digital technology has brought with it a critical need to ensure that copyright laws do not instead suppress the basic flow of knowledge that certain sections of the Copyright Act were meant to encourage.

Controlled digital lending, or CDL, is based on the premise that a library should be able to circulate a digital copy in place of a physical one, creating a 1:1 controlled lending environment. In my layperson’s interpretation, the position paper presents two key areas (or doctrines) that support CDL: exhaustion and fair use.

Exhaustion, also known as “first sale”, means that once you have bought the hard copy of a book at a local book store or online, in other words once you have made an authorized transfer of a copyrighted book, the original rights are “extinguished” or “exhausted.” This means that if you buy a book at your local bookstore and then later decide to donate it to a used book store, or sell it a garage sale, that transfer is perfectly legal, and no permission is needed from the original rights holder.

The second core issue necessary to support CDL within copyright law is fair use. While some assume that fair use is about the portion or number of words used, that turns out not to be true. The portion used is only relevant in the context of the purpose of the use, and courts have found use of entire works fair for many purposes, particularly those that are noncommercial and socially beneficial, such as teaching or scholarship. Fair use, which was created as part of U.S. copyright law more than a hundred years ago, was meant to protect the social benefits of copyrighted works, i.e., encouraging literacy and education. Specifically, some permissible uses include criticism, commenting, teaching, scholarship and research. In addition, several other legal factors are taken into consideration, such as the effect of the use on the value of its potential market. You can read the full white paper on CDL here, which contains in much greater depth the case law and further legal factors that need to be weighed and balanced (This white paper is very well written from a lay perspective, and I highly encourage you to read it, even if you are not a lawyer.)

So what does all this mean for education and K-12 schools in particular? The concept of CDL has far-reaching implications for access to education. For starters, it can impact access to public knowledge, such as in rural communities and for those physically unable to access. Issues of orphan works (when the copyright holder or its heir is no longer known) are also at stake here. Not at stake, of course, are open educational resources, or books in the public domain.

However, in the context of public education in the U.S., the arguments for CDL in some ways do not go far enough in providing access to knowledge and learning, as specified in the copyright law. Yet, CDL brings us one step closer. For example, the school library has been and continues to be a critical link for teaching and learning. Equal access to educational materials is more than access to the school and teachers, but also access through school libraries to the rich array of books and media that all members of a school community need in order to gain new knowledge as well as information that reinforces basic tenets of learning, such as problem-solving, curiosity, and exposure to new ways of thinking and being. Not surprisingly, impact studies have shown that well-resourced libraries do in fact make a significant difference to student learning outcomes in schools.

However, in the U.S. today, millions of public school students lack the educational benefits of a school library. School libraries, particularly those in underserved communities, have seen a steep cut in services, decreased or no access to trained librarians, or complete closures. By some accounts, public schools have lost 20 percent of their librarians since 2000, even in districts that have seen increased student enrollment. For example, in the Oakland Unified School District, not only are 30 percent of libraries closed, but also students are not allowed to check out books in schools that do have libraries because there is no librarian. A recent New Republic article stated that the number of school libraries in New York City dropped from nearly 1,500 in 2005 to 700 in 2014. And California has the worst ratio, 1-to-7,000 librarians-to-students, of any state in the nation.

I would like to think that in today’s digital world, access won’t be restricted by publishers who would rather sell the digital copy in addition to a hard copy— despite the prohibition against sharing, borrowing or reselling digital copies. Similarly, when commercial textbooks became digital, digital rights management essentially enabled publishers to restrict access to the “purchased” book as per the terms of the digital license (i.e., when the semester is over). This is certainly not optimum for educational purposes.

In education, addressing issues of access and equity has been paramount in understanding how the flow of information, across a range of circumstances, has been restricted. Public school libraries would certainly benefit from CDL, and perhaps, with cooperative agreements across districts, access could be extended so that school libraries have more flexibility in ensuring that their materials are fully accessible for all.

October 15, 2018