Eric Enno Tamm, Chair of (TWUC), calls it “an outrageous trespass on the rights of authors.” The is asking for help to “tackle e-book piracy,” and TWUC Executive Director John Degen states that “the harm this does to the e-book market, and to genuine library sales, is incalculable.” The target of all this extreme rhetoric is the ’s and its use of Controlled Digital Lending. The concerns raised are of particular interest to the 海角社区, where the 海角社区 Libraries has recently made its previously non-circulating accessible via Controlled Digital Lending through the Internet Archive.
So, what exactly is Controlled Digital Lending (CDL)? Basically, it works like this. A library owns a legally-obtained print copy of a published book. The library then digitizes that book, lending out the digitized version in place of the printed book. The library is essentially taking a printed book in its collection and shifting its format so it becomes a digitized book. The printed book is put away, so that the library effectively still has only one copy of the work available for use. The digitized book is loaned under all the same safeguards that are used with the lending of eBooks, which restrict duplication and prevent the retention of the work beyond the loan period. More specifics about CDL are available at .
What are the copyright implications of CDL? The digitization of a printed book involves making a copy, so if the work is protected by copyright, we have to look to the Copyright Act for guidance regarding whether making and using such a copy might be permissible. While there are specific provisions of the Act that pertain to libraries, the more interesting question is the extent to which CDL would be covered under fair dealing (s. 29).
Fair dealing is the foundation of user rights in the Copyright Act. Under fair dealing, if a use, or dealing, is made with a copyright-protected work, and if that dealing is for one of the listed purposes that relate to the broader public interest, then, where the dealing is determined to be fair, it is not an infringement of copyright.
The Copyright Act, quite appropriately, does not include strict guidance on determinations of fairness, but rather leaves such interpretations to be made based on the facts of each case. In its 2004 CCH decision, the Supreme Court of Canada outlined six factors that can assist in making such determinations of fairness. Coincidentally, the CCH case involved a library making copies of copyright-protected works in a controlled and limited way to better serve its patrons.
One of the six factors in CCH is the “effect of the dealing on the work.” The Court states that “If the reproduced work is likely to compete with the market of the original work, this may suggest that the dealing is not fair.” (para 59). This seems to be the main concern expressed by the authors’ groups noted earlier. However, even to the extent that this might be a reasonable concern, it might not be the determinative factor in a fair-dealing analysis. The Court goes on to say that “[a]lthough the effect of the dealing on the market of the copyright owner is an important factor, it is neither the only factor nor the most important factor that a court must consider in deciding if the dealing is fair” (para 59).
In all cases of fair dealing, it is impo