In the latest of a series of articles on the Digital Public Library of America, John Palfrey of Harvard’s Berkman Center, addresses the problem of e-book lending. He notes that the difficulties arise out of the failure to transfer to the digital world the “first sale” principle of the US Copyright Act. This principle states, in effect, that once a copyrighted work is sold, the new owner can lend it, re-sell it, or whatever, without the further permission of the copyright owner.
Were this principle to apply to e-books, there would be no problem; the difficulty arises in that e-books are not sold, but licensed and publishers use license terms with varying restrictions that will prevent libraries from “owning” the book, lending it, re-selling it as a second-hand book, or transferring “ownership” in any other way.
The situation is even more serious, in that libraries, in many cases do not even hold on their own servers, the digital copy of the e-book. Rather, a loan request from a user transfers the transaction to a provider’s server, a company like Overdrive in the USA, or, in Sweden, to the eLib site maintained by a consortium of the major publishers.
What the ultimate resolution of this situation will be, which effectively prevents libraries, and public libraries in particular, from managing their own collection development policies and negates attempts by the major libraries to preserve the cultural heritage, is anybody’s guess. Reform of the various Copyright Acts is obviously needed, but the political lobbying of publishers is likely to make that either a non-starter or a long drawn out affair. Legal action may be faster, if a court can be persuaded that an e-book is nothing more or less than a book, subject to the same copyright provisions as a physical book.
I think the claimants would have a case: licensing of computer programs is understandable, given that they need to be automatically updated, but (at least in very large part today) an e-book is simply the digital form of an existing physical book, with no need to access the file to update it. There is no logic to the idea that an e-book should be licensed rather than being sold.
Palfrey’s article is a very interesting exposition of these issues and well worth reading.