Libraries as Public Interest Users in the Copyright Balance

Canadian copyright cases often make reference to balancing protection of and access to copyrighted works, or to balancing the rights of creators against users or the public interest. However, these simple categories of creators and users ignore the variety within each of these categories, which Teresa Scassa has identified as including not only creators but also copyright owners, and not just one group of users but rather many different uses individuals might have for copyrighted works. Libraries form a unique group of copyright users. While libraries use copyright works like any other user group, libraries’ mandates align with the public interest and predate copyright law. As a result, libraries and copyright have a densely intertwined history. This connection, rooted in the past, is crucial as libraries face a future fraught with challenges from the digital shift and opportunistic publisher practices. By recognizing this, we can use the copyright balance to support libraries. Their interests align with the public interest that copyright law seeks to promote.

Copyright for Libraries

At first glance, the relationship between libraries and copyright law may seem odd: libraries lend books for readers, whereas copyright law supposedly protects the exclusive rights of copyright owners to distribute their work. This apparent disconnect rests primarily on the exhaustion of most copyrights once the copyright owner sells a physical item like a book. However, libraries’ lending rights are not an exception to copyright’s distribution rights crafted through exhaustion, but rather reflect a relationship that predates copyright law and is central to copyright as a whole. Scholars like Ariel Katz and Argyri Panezi have demonstrated this convincingly and the inclusion of libraries in the first copyright law statute, the Statute of Anne from 1710, reflects this relationship.

Canadian copyright law reflects this long history: specific exceptions in the Copyright Act allow libraries to maintain and manage their collections, and Canada’s foundational cases on fair dealing are about services offered by a library. However, copyright law still presents many barriers to the work of libraries, and Canadian law does not explicitly recognize libraries as copyright users grounded in the public interest. This lack of recognition means that copyright law still presents barriers to libraries, and makes it easier for copyright owners to attack libraries with overreaching and unfair copyright claims.

Libraries and Digital Licensing

The digital transition has created opportunities for publishers to use copyright law to pose new challenges for libraries. E-books, unlike physical books, are not a tangible product that publishers “sell”. Instead, publishers license these materials to libraries. Accordingly, the exhaustion of copyright that makes lending possible for physical books does not at first blush apply to e-books. This allows publishers to either refuse to license to libraries or offer licenses that are drastically more expensive than traditional books and come with restrictive limitations on lending and preservation.

Libraries, and library organizations, are responding to these challenges in various ways that directly implicate copyright law:

• Recreating the effects of first sale for digital works: These efforts tackle the main challenge posed by the digital transition: the absence of a physical object changing hands, which prevents copyright exhaustion. For example, Library Futures just published “Principles on Library Ownership of Digital Books" to address exactly this issue. This approach requires creative exploitation of copyright law principles to spark the copyright phenomenon of exhaustion in digital works.

• Digitizing and lending already-owned books in a controlled manner: This approach, called Controlled Digital Lending (“CDL”), allows libraries to leverage their existing collections by digitizing them and lending them to users by digital transmission. The legal case for CDL rests on user rights under copyright law and on libraries maintaining an ‘owned-to-loaned’ ratio whereby they only lend out the number of copies they have purchased, whether these loans are physical or digital. Publishers successfully sued the Internet Archive in the United States over its CDL implementation, but the decision is currently being appealed and should be viewed as factually-specific to the Internet Archive’s particular implementation of CDL during the pandemic.

• Regulating E-Book Licensing Through Legislation: Libraries are also promoting laws that directly regulate the terms on which publishers can license e-books to libraries. While this approach focuses on contract law rather than copyright, it is the effects of copyright law in digital environments that necessitates the reform, and constitutional peculiarities of copyright law make it a delicate endeavor.

These approaches each respond to the difficulties libraries face in different and complementary ways, all with the ultimate goal of protecting the public interest role of libraries and the benefits they provide to readers. I have had the opportunity to research or work on each of these approaches in my time at CIPPIC, and strongly believe that each of them is fair, possible under existing laws, and would be highly beneficial to libraries, readers, and the public interest. However, we can strengthen their legal standing and counter unfair criticism from publishers by properly acknowledging the role of libraries in the copyright balance.

A Unique Kind of Copyright User

Libraries play a crucial in maintaining copyright’s balance. Libraries exist to provide access to knowledge and information, a goal that closely aligns with the “encouragement and dissemination of works of the arts and intellect” envisioned by Canadian copyright law. In balancing the interests of copyright owners, users, and future creators, libraries emerge as copyright users crucial to advancing the public interest.

Accordingly, we should view the specific approaches that libraries choose as fulfilling their mission in promoting the public interest. This means recognizing libraries as copyright users representing the public interest and protecting their ability to fulfill this role. If a Canadian court ever evaluates controlled digital lending or other library practices, acknowledging the special user rights of libraries would clarify the public interest aspect of, and ensure the law’s support for, library rights. At the very least, even outside of court, this approach affirms the legitimacy of library practices, showing that they uphold, rather than undermine, the public interest that copyright law seeks to protect.