The following article is an electronic version of an article published in the February 2010 issue of Feliciter.
Digital technologies are changing how libraries make available books, articles and other works to the public. There is clear demand for these services, and they provide unprecedented benefits to both libraries and their patrons.
However, librarians should be aware that the uses of digital media, such as books or articles in electronic form, e-books and audio books, raise legal issues that do not arise with making available traditional printed materials. These issues fall into two main categories: copyright and contract. The purpose of this article is to summarize what the library community should think about when acquiring digital copies of books or making them available to the public.
1) The Digital World Involves the Use of More Rights
Copyright provides authors and other owners of a work with a series of exclusive rights. These rights are “separate and distinct”, meaning that multiple rights might be implicated in a single act undertaken by a library.
Librarians know about the reproduction right which is used to authorize copying. The reproduction right does not impact the majority of traditional library lending because lending involves the sharing of a pre-existing copy of a book rather than the creation of a new copy. On the acquisition side, acquiring paper copies of a book rarely involves a contract to do anything beyond paying the price of the book.
On the acquiring side, librarians will already be familiar with the Book Importation Regulations made pursuant to Canada’s Copyright Act. These regulations establish rules for how books in a paper format may be imported into Canada from abroad. These rights come into play only after the owner of a copyright or its exclusive distributor gives notice to a library that certain books must be ordered through a Canadian agent.
In the digital space, however, rights that once seemed crisp and clear are blurred. Digital acquisition and lending invariably involves the act of making new copies. It also tends to involve agreements (licences) between libraries and publishers that define the scope of the permitted copying.
Making copies of digital works available using the Internet or other means of telecommunication also implicates the “communication right”, which gives copyright holders the exclusive right to communicate a work to the public via telecommunication.
As a consequence, both the reproduction right and communication right may be present in any electronic distribution to members of the public. Each right may be implicated if a book is made available for downloading or even electronic viewing, whether that access takes place inside or outside of the library. Each of these acts has to be licensed from the copyright holders or a collective like Access Copyright which represents publishers and authors of works.
2) Lending without reproducing
Some works in electronic form can be lent out to patrons without any licence from copyright holders. An example is where the patron simply takes out a physical copy of the work that is already stored in some medium. This is the case for an audio book on a CD or cassette. Since no copies are made by the library in order to lend it out, a not-for-profit library can lend out the book (or sound recording, computer program, or other work) without any licence from the copyright holder. (For-profit libraries cannot lend out copies of sound recordings or computer programs without permission.)
3) Digital Lending Where New Copies are made- What Does Your Licence Permit?
Any time a library transmits a book, article or other work electronically to a member of the public, it must take care to consider whether it has acquired all of the necessary rights to do so.
The first place to look for this right is in any agreement or licence the library entered into when purchasing the digital copy. These documents will typically set out all of the acts the library is permitted to do with the copy of the work. These licences may also set out which acts a library is not permitted to do. If the agreement or licence (1) applies to Canada and (2) grants a permission to distribute further copies electronically, this should give the library comfort that it is permitted to distribute copies to its patrons.
Libraries may be licensed this way where the works are purchased from specialized library services which have a library’s particular needs in mind.
Certain digital books can be distributed in a “limited download” format that permits use of the book for discrete periods of time. However, libraries should be aware of any restrictions in such licences. Some licences permit distribution only in Canada, for example. This would restrict the location to which copies can be made available.
For example, the Toronto Public Library currently offers an electronic version of Frommer’s Florence, Tuscany & Umbria to its patrons. If the licence governing the distribution of this book contains a territorial restriction and a current TPL patron decided to download this travel book while on vacation in Italy, the library would be at risk of breaching the licence.
Some licences permit access of a work only to patrons that physically view the work while at the library’s physical premises. Unless further dissemination is authorized, a library that makes such works available to patrons from remote locations will likely be in breach of the applicable licence.
4) Has the Correct Copyright Owner Granted You the Right to Distribute?
Another complication is that there is often more than one owner of copyrights in a single digital book or digital audio book. For example, a digital audio book may contain distinct copyrights in a literary work (the text of the book), a performer’s performance, and a sound recording. If music is used to create atmosphere in the digital audio book, there might be further rights in that.
Often, these rights will be split among different copyright owners. While the owners may have come together to create the original digital copy, they may not have agreed to permit that digital copy to be copied and distributed to the public by libraries. So here again, it is important to read your licence to ensure each of the acts you propose to engage in is licensed for the entirety of the work.
Also, copyright holders often divide their rights territorially. For example, the rights to Audrey Niffenegger’s 2003 novel The Time-Traveler’s Wife are owned by Harcourt in the U.S., Random House in Canada, and others elsewhere. When arranging for a digital licence, it is therefore essential for a library to confirm that the right to use the book in the desired fashion has been granted by the owners of the Canadian copyrights.
This can pose a problem if a digital book or audio book is purchased over the Internet from a company in another country. A site in the United States or United Kingdom, for example, may have cleared the U.S. or U.K. rights in a digital book, but if it hasn’t cleared the Canadian rights, it can’t license a library to download or distribute those works electronically in Canada.
5) Does the Fair Dealing Regime or the Library Exception Cover Me?
The Copyright Act has a general fair dealing exception. The Act also has specific “library exceptions”. They permit a user to act in certain ways that might otherwise be seen to infringe copyright.
For example, Canadian copyright law allows libraries to perform a number of specific acts in furtherance of their public objects. Libraries are allowed to make preservation copies of rare or unpublished works if they are deteriorating, or to change the format of a work if the technology needed to use it becomes obsolete. These are tightly drawn exceptions, and they do not apply if the work is commercially available in an appropriate medium and an acceptable quality. They also require all intermediate copies to be destroyed once the permitted copy is made. If these conditions are met, making a copy of a work will be found not to infringe an owner’s copyright.
A library also has the right to make copies of a work or part of a work in digital form on behalf of a library patron that the patron himself or herself has the right to do under the fair dealing exception. Crucially, this exception does not extend to making or transmitting digital copies for patrons of other libraries.
Libraries that make copies on behalf of patrons must have a policy to ensure that the copying on behalf of patrons is in support of their research and private study purposes and that the libraries act in a manner that is fair. The concept of fairness requires a library to develop a fair dealing policy that takes into consideration a number of factors including the purpose of the dealing, the amount of the dealing, alternatives to the dealing, and the effect of the dealing on the market for a work.
If the way in which a library structures its digital programs has a disproportionate or unfair impact on a right holder, or if a library imposes insufficient safeguards to ensure that a work will be dealt with fairly downstream, a library risks having its dealings found to be unfair.
6) How Does the Law of Contracts Affect Me?
Many librarians will be aware of the recent controversy involving Amazon.com’s sale of Kindle versions of the George Orwell novels 1984 and Animal Farm. Mirroring a plot theme of 1984, in which government censors obliterated all traces of news articles embarrassing to Big Brother by sending them down an incineration chute called the ‘memory hole’, Amazon.com remotely erased these Orwell novels from its customers’ Kindle readers.
Why? Amazon.com had distributed 1984 and Animal Farm without clearing all the necessary rights to do so. Its licences, however, permitted Amazon to delete copies of these books from its readers’ Kindle machines. This example illustrates both the difficulty of clearing electronic rights in a book and the unusually long reach of a digital licence. It also illustrates that licences governing works can sometimes have some surprising terms in them.
Libraries should also realize that terms in licences will trump what might otherwise be a fair dealing exception in the Act. Going back to the previous fair dealing example as an illustration, while libraries have statutory exceptions that permit copying for patrons for fair dealing purposes, such copying can only be carried out legally to the extent it is not in conflict with licences granted to libraries.
The moment a library clicks “I agree” to the terms and conditions that accompany a download of a digital book or audio book, it becomes bound to respect the associated terms and conditions.
Based on the above, and at a minimum, a library should evaluate its licences to determine the following:
- Does the licence clearly grant Canadian rights?
- Does it grant both the reproduction right and the communication right?
- Does the licence allow the library to do everything it wishes to do?
- What does the licence prohibit?
- Does the licence place special responsibilities on the library?
- Does the licence allow the vendor unusual rights or remedies?