Interesting Copyright News - Public Domain Day and Controlled Digital Lending

One of the many works that entered into the public domain on January 1st.

January 1, 2019 marked the day that thousands of copyrighted works finally entered into the public domain. This release of works is the largest since the passage of laws that extended the copyright term to 95 years. Works such as The Ten Commandments, directed by Cecil B. DeMille, Kahlil Gibran’s The Prophet, and two of Agatha Christie’s Hercule Poirot mysteries, The Murder of Roger Ackroyd and The Murder on the Links, can now be freely accessed by the public. On-line digital collections, such as Google Books, Hathi Trust, and the Internet Archive, have made many of the titles available. In subsequent years January 1 will now not only be New Year’s day, but also the day that thousands more works enter into the public domain. More information on public domain can be found at Duke University’s Center for the Study of the Public Domain.

In related copyright news, some of the librarians of Georgetown University Law Library continue to be participants in libraries’ advocacy of controlled digital lending. Controlled digital lending is, simply put, the loaning of items to patrons in a digital format. Controlled digital lending differs from libraries providing e-books in that the digital item is not “born digital” – it is something, typically a book, that has been digitized by the library. Because these items are still under copyright, circulation follows an owned-to-loan principle. If a library owns a single copy of a book, it can only circulate one copy at a time. For example, a library using controlled digital lending may choose to digitize a title, take the print version out of circulation, and circulate the e-copy in its place. That e-copy is then controlled by digital rights management, such that the file cannot be copied, printed or redistributed, and can only be accessed for a limited amount of time (e.g., 2 weeks). It is in this manner that controlled digital lending mirrors the print lending function.

The legality of controlled digital lending by a library is predicated on fair use. A recent Second Circuit decision, Capital Records, LLC v ReDigi, Inc. (2018), held that a web-based platform that enabled the reselling of digital music files that had been lawfully purchased did not fall under the first sale doctrine and could not be considered fair use. Director Michelle Wu recently authored an article entitled “Revisiting Controlled Digital Lending Post-ReDigi” that explicates the differences that exist between a non-profit library’s digitization of items and the use of the long-standing borrowing framework to loan the digital item, and a commercial company’s use of a platform to resell digital items. These distinctions are important as libraries continue to evolve in order to meet the changing digital needs of patrons. You can read librarians’ position statement on controlled digital lending here.