Copyright experts have begun building a framework for Controlled Digital Lending (CDL) with the recent publication of a white paper and an official position statement initially supported by 40 individual and 24 institutional signatories, including major academic and public library systems, library consortia such as Califa Group, legal scholars, and organizations such as the Internet Archive.

“Properly implemented, CDL enables a library to circulate a digitized title in place of a physical one in a controlled manner,” the position statement explains. “Under this approach, a library may only loan simultaneously the number of copies that it has legitimately acquired, usually through purchase or donation.”

CDL would be particularly useful for titles that are out of print, orphan works, or in-copyright works that have never been digitized by publishers, and for facilitating access “to residents in rural communities, the elderly or physically disabled, and others for whom a trip to their local library may be a barrier to access,” according to the position statement.

“We think it will unearth a treasure trove of reading, scholarship, and books that were…no longer available,” and make that content “available in the 21st century sense,” explained Kyle K. Courtney, copyright advisor for Harvard University, founder of the Copyright First Responders initiative, and 2015 LJ Mover & Shaker.

When the University of California (UC), Berkeley’s Library became a signatory September, Jeffrey MacKie-Mason, Berkeley’s university librarian, told Berkeley's library news site that CDL has the potential to “revolutionize how library users access and conduct research with these valuable materials. The UC Berkeley Library is better positioned to help democratize access to knowledge and allow it to be used in ways that promote global progress.”

The basic concept of CDL is straightforward. If a library owns a print copy of a book, the copy is digitized. A patron can then borrow the title in his or her preferred format, while the library maintains a strict “owned to loaned” ratio with its print and digital copies—if the digital copy is loaned out, the print copy cannot be circulated, and vice versa.

However, there are many issues to consider. Practical matters include the use of digital rights management software and/or secure distribution platforms to ensure that borrowers don’t create additional copies of a work for distribution or retention. Also, while first sale doctrine enables libraries to circulate print books and other physical media without paying fees or seeking the consent of copyright owners—the rights of the owner of a physical copy of a copyrighted work to loan it, resell it, or dispose of it has been established in U.S. copyright law for 110 years—similar rights have never been established for digital copies.

Without clearly defined digital lending permissions outlined in the U.S. Copyright Act, signatories of the position statement aim to establish programs that follow “a good faith interpretation of U.S. copyright law for American libraries” with a focus on the principles of fair use and common law exhaustion “while preserving an appropriate balance between the public benefit of such lending and the protected interests of private rights holders.”

For example, fair use principles have long protected the copying of portions of a work for criticism, teaching, and research, but also require users to consider “the effect of the use upon the potential market for or value of the copyrighted work.” So, recent bestsellers aren’t good candidates for CDL.

“It’s not a silver bullet, it’s not meant to be a competitor to OverDrive, and it’s not a replacement for licensing ebooks,” Courtney explained. Regarding relatively recent works, Courtney cited the example of Wasted: Tales of a GenX Drunk, a memoir written by Mark Judge, a high school friend of Supreme Court Justice Brett Kavanaugh. The out-of-print title was referenced by multiple media outlets during Kavanaugh’s Senate confirmation hearings in September, and the price for used copies spiked to over $2,000 on Amazon.

“One library that had it was the Internet Archive,” Courtney said. “Because it was an out-of-print book that was no longer available to the public, but was of great public interest or concern, they made it available” through CDL.

A White Paper on Controlled Digital Lending of Library Books, by Courtney and coauthor David R. Hansen, associate university librarian for Research, Collections and Scholarly Communications, Duke University Libraries, was written in support of the position statement, and delves further into “the legal and policy rationales for the [CDL] process…as well as a variety of risk factors and practical considerations that can guide libraries seeking to implement such lending…. Our goal is to help libraries and their lawyers become more comfortable with the concept by more fully explaining the legal rationale for controlled digital lending, as well as situations in which this rationale is the strongest.”

The white paper notes that the Internet Archive’s “CDL-like” system has been in operation for eight years, and that the Georgetown Law Library operates a CDL service. But for the library field, the concept is still relatively new.

“This is how things start,” said Courtney. “You put out a position statement, you back it up with a white paper, and you see the conversations that happen.” As libraries establish programs and platforms, use cases and best practices begin to emerge.

“There’s a flavor for every library,” he said. “You assess your own risk, you look at your collection, and you see what’s best for your community and your library…. As [CDL] expands, I expect we will revisit with case studies of early adopters. It will be great to see lessons learned and a shared dialog—‘we did this for reserves,’ or ‘we did this for collections of orphan works,’ or ‘we did this for genealogical [works]’—each library choosing and showing how they did it.”

Libraries that are interested in the CDL concept could start by looking for out-of-print works in their collections, Courtney suggested. “Books that are inaccessible in any other way other than the copy that we have on the shelf,” he said. Also, “where do we have traditional orphan works? Even though we haven’t settled that issue by any stretch of the imagination, I can imagine this helping that particular problem that libraries have—where we can’t find a publisher, we can’t find a copyright holder, no matter what due-diligence search we do.”