Controlled Digital Lending (CDL) is an emerging approach for libraries to legally lend digital copies of in-copyright print books. Though there is some controversy around CDL, it holds promise to help readers get to content they need when access to physical collections may be very limited. Some libraries and digital collections have already been using some form of CDL for several years, and it is currently gaining greater momentum in the library community given the global pandemic.

The Controlled Digital Lending by Libraries website is a great starting point to learn about CDL. The site features a concise position statement, a more detailed white paper with thorough footnotes, and a compilation of some news about CDL since the position statement was issued in September 2018. In basic terms, CDL allows a library to digitize a print book and circulate the digitized copy, provided the library makes the print original unavailable for circulation for the duration of the digital loan. The library must protect the digitized copy using digital rights management (DRM) software, and grant access to it to one user at a time, for a limited time, as with a print book. CDL also requires that users cannot retain a permanent digital copy, or distribute digital copies.

According to the position statement, “a library may only loan simultaneously the number of copies that it has legitimately acquired, usually through purchase or donation.” For example, if a library owns three print copies of one book and digitizes one copy, it could use CDL to:

• circulate one digital copy and two print copies, or
• circulate two digital copies and one print copy, or
• circulate three digital copies, and no print copy

The key here is that the library must maintain an “owned to loaned” ratio, and only circulate the same number of copies it owned before digitizing a print copy. Another important success factor for CDL is how a library takes U.S. copyright law into account. The position statement and white paper explain why careful attention not only to DRM and the “owned to loaned” ratio, but also the “first sale” doctrine’s principle of “exhaustion,” and the four factors of fair use can position a library for success with CDL.

One prominent initiative in 2020 that includes elements of CDL, but is not necessarily defined as CDL, is HathiTrust’s Emergency Temporary Access Service (ETAS). According to HathiTrust, the ETAS “permits special access for HathiTrust member libraries that suffer an unexpected or involuntary, temporary disruption to normal operations, such as closure for a public health emergency, requiring the library to be closed to its patrons, or otherwise restrict print collection access services.” ETAS allows HathiTrust member library users to access “specific digital materials in HathiTrust that correspond to physical books held by their own library.”

The Internet Archive’s Open Libraries program offers access to over 1.7 million books published after 1923, via CDL. Between March 24 and June 16, 2020, the Internet Archive also offered the National Emergency Library (NEL), a “temporary collection of books that supported emergency remote teaching, research activities, independent scholarship, and intellectual stimulation while universities, schools, training centers, and libraries were closed due to COVID-19.” The NEL temporarily removed CDL restrictions, allowing unlimited borrowing. This sparked a copyright infringement lawsuit from four major publishers in coordination with the Association of American Publishers. Following the NEL’s closure, Internet Archive resumed their CDL approach using HathiTrust’s short-term access model.

This past July, the Project ReShare community decided to include support for CDL in ReShare’s fall development roadmap, given increasing interest in CDL in times of limited access, and uncertain, shifting print quarantining recommendations. A Controlled Digital Lending Implementers (CDLI) group including several Project ReShare Steering Committee members, as well as Tom Cramer from Stanford University and Kyle Courtney from Harvard University (a co-author of the CDL white paper) will have its inaugural meeting on Oct. 7 at 3pm Eastern (2pm Central.) A press release from those forming the CDLI group emphasizes that, “when connected with the various workflows, decisions, policies, and mechanisms similar to those used in traditional inter-library loan, CDL offers an effective means of safely and securely circulating library materials to users—especially those for whom physical access presents a hardship—while also protecting the rights of the publishing community.” If your library is interested in how to advance work toward CDL for your community, I encourage you to get involved with Project ReShare and the CDLI group.

Controlled digital lending is about helping remove barriers to accessing copyrighted content, in a way that respects copyright law. If your library has found ways around barriers to providing service in these challenging times, please let us know. I’m always happy to hear from you at garrisons@mcls.org.