Related product Public Services

Resources about Controlled Digital Lending

This resource guide was created by the CARLI Public Services Committee for its April 21, 2022 program, Controlled Digital Lending: A Discussion. Although not recorded, notes from that program are available. This resource guides was updated May 2022.

Definition

The Scholarly Publishing and Academic Resources Coalition (SPARC) defines Controlled Digital Lending (CDL):

Rooted in the fair use right of US Copyright Act, CDL is the digital equivalent of traditional physical library lending—a library can digitize a book it owns and lend out a secured digital version to one user at a time, in place of the physical item. Controlled Digital Lending has three important core principles:

  • A library must own a legal copy of the physical book, by purchase or via donation or gift;
  • A library must maintain an “owned to loaned” ratio, simultaneously lending no more copies than it legally owns; and,
  • A library must use technical measures to ensure that the digital file cannot be copied or redistributed.

Recent Background

In March 2020, the Internet Archive launched the National Emergency Library where digital copies of 1.4 million books were made available. It suspended waitlists which allowed multiple copies to be checked out even if there was only one physical copy.

Hachette, HarperCollins, John Wiley & Sons, and Penguin Random House—coordinated by the Association of American Publishers—filed a copyright infringement lawsuit on June 1, 2020.

The National Emergency Library initiative ceased operation on June 16, two weeks before the announced June 30 closing date.

The Internet Archive responded to the lawsuit in a July 28, 2020 filing.

This lawsuit brought national attention to the concept of controlled digital lending. Given the significance of the case (it is ongoing and may have future impact on digital lending) we have included, in the Legal Section below, resources that provide an overview of the circumstances that led to the lawsuit and analysis of the legal issues that it entails.

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Samuelson, Pam, Sherman, Richard M., & Okerson, Ann (2021, March 29). ATGthePodcast 105—Keynote Panel-The long arm of the law--Part 2.

"In Part Two of the Long Arm Panel, Pam talks with us about what Controlled Digital Lending is, institutions and people who have endorsed it, the position statement and white paper that explains what the rationale behind it is, the Author's Alliance support for CDL as a Fair Use,  Internet Archive's Open Library as an example of CDL and CDL in the context of the Publisher's lawsuit against Internet Archive, the lawsuit status report, is it fair use or not fair use and risk mitigation strategies.

Also featured in this presentation is a tribute to the late Bill Hannay, Partner at Schiff Hardin, who was such a big part of the Long Arm Panel for many years. Video of the presentation is available.

The Authors Guild (2019, February). FAQ about Controlled Digital Lending.

International Federation of Library Associations and Institutions (2021, June 1). IFLA Statement on Controlled Digital Lending. Retrieved on April 5, 2022.

"Controlled Digital Lending (CDL) has become widely talked about over the last two years, and in particular in the context of the COVID-19 pandemic. While the specific term has only relatively recently come to be used, forms of controlled lending have been utilized for many years, for example in the context of document supply. As such, controlled lending has helped to fulfill the mission of libraries to support research, education, and cultural participation within the limits of existing copyright laws.

Licensed eBooks have opened the door to a radical undermining of the traditional public interest functions and freedoms of libraries. These still exist for paper books, but with the advent of licensed eBooks, libraries are no longer free to decide when or what to purchase, with some publishers even refusing to sell to libraries. Controlled digital lending provides an alternative to a licensing approach, and so a means of redressing the balance.

This paper provides background on what CDL is, and provides an economic and legal case for all libraries and their users to be able to benefit from the approach.  Library associations and libraries in individual countries and regions will need to consider their particular policy environment."

Library Futures (2021). Controlled Digital Lending: Unlocking the library's full potential. Library Futures.

"For many, libraries are a more trusted source of information than government, news, and social media. As physical spaces closed in response to the pandemic and communities turned more to digital resources to access knowledge, libraries moved to meet the challenge with new digital initiatives. Through a process called 'controlled digital lending' (CDL), libraries can amplify what they do best by meeting communities where they are—both physically and digitally."

The Authors Guild. [2019, March 4] Controlled Digital Lending (CDL).

The Authors Guild. (2019, February 13). Controlled Digital Lending: An appeal to librarians and readers.

Bailey, Lila, Courtney, Kyle K., Hansen, David, Minow, Mary, Schultz, Jason, & Wu, Michelle (2018, September). Controlled Digital Lending by libraries: Position statement on Controlled Digital Lending. Controlled Digital Lending. Retrieved on April 5, 2022.

"This Position Statement on Controlled Digital Lending by Libraries ("Statement") offers a good-faith interpretation of U.S. copyright law for American libraries considering how to perform traditional lending functions using digital technology while preserving an appropriate balance between the public benefit of such lending and the protected interests of private rights holders. This Statement only applies to in-copyright works, as public domain works may be distributed without restriction. This Statement is not intended to describe the upper limits of the fair use or other rights of libraries, bind the signatories to any legal position, or constitute legal advice. Because the following analysis is general, any library considering implementing controlled digital lending should consult a competent attorney to develop an appropriate program responsive to the specific needs of the institution and community."

Currier, Chad, and Alissa Centivany. (2021, October 13). Controlled Digital Lending. Proceedings of the Association for Information Science and Technology, 58(1), 80-91.

"Libraries and library consortia are adopting controlled digital lending (CDL) as a strategy, accelerated by the ongoing COVID-19 pandemic, to facilitate equitable access to print collections. While advocates of CDL contend that digitize-and-lend practices reflect an incremental, technology-assisted adjustment to traditional library circulation, lending, and resource-sharing practices, opponents of CDL in the United States and Canada argue that the practice contravenes well-established copyright protections. This paper discusses current controversies surrounding CDL, its potential promise and perils, and concludes that a reasonable, equitable, and forward-looking application of copyright laws ought to insulate libraries and library consortia from exposure to liability for engaging in CDL."

BLC Controlled Digital Lending Working Group. (2021, September). Consortial CDL: Implementing Controlled Digital Lending as a mechanism for interlibrary loan [white paper].

Ex Libris. (2021, August 19). Controlled Digital Lending to play a larger role in Ex Libris products.

Xu, Qinghua, Leon Lin, and Xiaohan Wu. (2021). Implementing Controlled Digital Lending with Google Drive and apps script: A case study at the NYU Shanghai Library. International Journal of Librarianship, 6(1), 37-54.

"The unexpected outbreak of COVID-19 near the beginning of 2020 has significantly interrupted the daily operation of a wide range of academic institutions worldwide. As a result, libraries faced a challenge of providing their patrons access to physical collections while the campuses may remain closed.

Discussions on the implementation of Controlled Digital Lending (CDL) among libraries have been trending ever since. In theory, CDL enables libraries to digitize a physical item from their collections and loan the access-restricted file to one user at a time based on the “owned to loaned” ratio in the library’s collections, for a limited time. Despite all the discussions and enthusiasm about CDL, there is, however, still a lack of technical infrastructure to support individual libraries to manage their self-hosted collections. With COVID-19 still very much a presence in our lives, many libraries are more than eager to figure out the best approach to circulating materials that only exist in print form to their users in a secure and legitimate way.

This article describes the author's temporary but creative implementation of CDL amid the COVID-19 pandemic. We managed to work out a technical solution in a very short time, to lend out digital versions of library materials to users when the library is physically inaccessible to them. By collaborating with our campus IT, a Google Spreadsheet with Google Apps Scripts was developed to allow a team of Access Services Staff to do hourly loans, which is a desired function for our reserve collection. Further, when the access to a file expires, staff will be notified via email. We hope our experience can be useful for those libraries that are interested in lending their physical materials using CDL and are in urgent need for an applicable solution without a cost."

Rimkus, Kyle R., Dolski, Alex, Emery, Brynlee, Johns, Rachael, Lampron, Patricia, Schlaack, William, & Waarala, Angela (2021). Adaptive digital library services: Emergency access digitization at the University of Illinois at Urbana-Champaign during the COVID-19 pandemic. The Code4Lib Journal, 51.

"This paper describes how the University of Illinois at Urbana-Champaign Library provided access to circulating library materials during the 2020 COVID-19 pandemic. Specifically, it details how the library adapted existing staff roles and digital library infrastructure to offer on-demand digitization of and limited online access to library collection items requested by patrons working in a remote teaching and learning environment. The paper also provides an overview of the technology used, details how dedicated staff with strong local control of technology we're able to scale up a university-wide solution, reflects on lessons learned, and analyzes nine months of usage data to shed light on library patrons’ changing needs during the pandemic."

McVey, Kuniko Yamada. [マクヴエイ山田久仁子]. (2021). E-Resources in the US university library-Harvard’s case under the pandemic [海外大学図書館における電子書籍の動向 ’•: パンデミック下のハーバードでの教育と研究の支援]. Journal of Information Science & Technology Association/Joho No Kagaku to Gijutsu, 71(1), 28–33. [abstract in English but article in Japanese]

"Due to the pandemic, Harvard University swiftly switched its instruction from in-person to remote in the middle of March 2020. The online instruction continued through the fall semester. Providing online resources has been the highest priority of Harvard Libraries in order to support teaching and research in this new and challenging environment. In this paper, the author, a Japanese bibliographer at Harvard, reports how e-resources are being used while libraries are implementing some emergency measures such as Controlled Digital Lending (CDL) under this unexpected transition."

Lin, Kun. (2020, October 15). Controlled Digital Lending with existing tools in the toolbox: Alma Digital. Ex Libris.

Hansen, David R., & Kyle K. Courtney. (2018). A white paper on Controlled Digital Lending of library books.

"This paper is about how libraries can legally lend digital copies of books. It explains the legal and policy rationales for the process— “controlled digital lending”— as well as a variety of risk factors and practical considerations that can guide libraries seeking to implement such lending. We write this paper in support of the Position Statement on Controlled Digital Lending, a document endorsed by many libraries, librarians, and legal experts. Our goal is to help libraries and their lawyers become more comfortable with the concept by more fully explaining the legal rationale for controlled digital lending, as well as situations in which this rationale is the strongest."

Ex Libris. (Last modified 2021-10-06). Controlled Digital Lending. Retrieved on April 5, 2022.

Wu, Michelle. (2021). Could private legislation be the first key to unlocking the nation’s information resources in the battle against misinformation? Legal Reference Services Quarterly, 40(2/3), 157–83.

"Unfiltered, unverified information flows freely on the web and is much more easily found and used than reliable sources. There are logical reasons for this, as quality, reliable information often costs both time and money to investigate, verify, and publish. However, that type of investment only justifies the charging for the information at the outset, not the cabining of it once it is available and has been purchased. Where public libraries have acquired content, they should be allowed to maximize its use in society within the bounds of copyright. Such use is within the spirit of copyright and its hope for an informed citizenry and more equal access to information. Private legislation coupled with library collaboration on multiplying access points could make quality information available to the public in a quantity and manner that could help fight the war on misinformation."

Schwabach, Aaron. (2021). The Internet Archive's National Emergency Library: Is there an emergency fair use superpower? Northwestern Journal of Technology & Intellectual Property, 187(2), 187-216.

"On March 24, 2020, the Internet Archive announced that it would create a National Emergency Library offering no-waitlist borrowing of all of the books in its collection. In effect, this allowed unlimited, if temporary, downloads of copyrighted works. The National Emergency Library was presented as a response to the current national and global public health crisis; however, nothing in either the Copyright Act, 17 U.S.C. § 108 or the aspirational documents of ControlledDigitalLending.org provides a legal basis for a library to lend out more copies of a work at one time than it actually owns. Nor does the case law support an “emergency exception” to copyright law.

The only possible legal justification for no-waitlist lending is fair use under 17 U.S.C. § 107. This Article discusses the statutory and case law governing online libraries, with special attention to two related cases on fair use and online libraries: Authors Guild, Inc. v. HathiTrust and Authors Guild, Inc. v. Google, Inc. Ultimately neither the case law nor the language of the statute itself supports the National Emergency Library’s no-waitlist policy, and this Article concludes that no-waitlist e-book lending is, at least in the case of copyrighted works otherwise readily available and whose authors have not granted permission for the copying, in violation of the Copyright Act."

Ojala, Marydee. (2021). Controlled Digital Lending: Legal lending or piracy? Online Searcher, 45(1), 25–27.

"When the pandemic hit and libraries around the world shut down physical operations, the rush toward ebooks accelerated.

Many libraries already had a supply of ebooks available for loan, possibly through a subscription to OverDrive or the presence of purchased ebooks within their collection. This satisfied library book readers, but only to a point. Brewster Kahle, for one, thought more could be done. As the guiding light behind the Internet Archive (archive.org), Kahle decided to make digital versions of books held by the Archive available for lending. Called the National Emergency Library, it was scheduled to run from March 24, 2020, to June 30, 2020, but closed instead on June 16, 2020, due to pressure from a lawsuit filed by the Association of American Publishers (publishers.org/news/publishers-file-suit-against-internet-archive-for-systematic-mass- scanning-and-distribution-of-literary-works), representing four major publishers: Hachette Book Group, HarperCollins Publishers, John Wiley & Sons, and Penguin Random House.
The contretemps focused attention on the concept of controlled digital lending (CDL), with opinions on its applicability to the Internet Archive’s emergency library initiative running the gamut from totally fine to highly illegal. The views of librarians, publishers, and authors span all sides of the CDL issue."

Schard, Robin. (2021). Hachette Book Group v. Internet Archive: Is there a better way to restore balance in copyright? Internet Reference Services Quarterly, 24(1/2), 53–58.

"Using the opening of the National Emergency Library as an opportunity, four large publishers, Hachette Book Group, HarperCollins Publishers, John Wiley & Sons, and Penguin Random House, filed suit against the Internet Archive claiming copyright infringement. This article discusses the lawsuit and the claims on both sides before discussing the weaknesses for the parties, and recommending that negotiation would be the best way to move forward."

Beemsterboe, Stephen. (2021). Fahrenheit 2020: Torching the Internet's Library of Alexandria at the height of a global pandemic. University of Illinois Journal of Law, Technology and Policy, 2021(2), 387-517.

"While fair use analyses have been broached before for both CDL and the National Emergency Library, this Note endeavors to introduce additional perspectives to the legal analysis and comprehensively address some of the most pernicious rhetoric that permeates the discourse with respect to this case. The case also serves as a vehicle for critiquing some areas of copyright jurisprudence, especially how the fair use doctrine has evolved, that might bear upon the outcome...Part II will introduce the portions of copyright law that shape the current state of digital library lending, offer context about the (often tense) relationship between publishers and libraries in the digital age, and detail the controversy over the National Emergency Library and CDL generally. Part III will assess the merits of the lawsuit while exploring policy and doctrinal issues that permeate throughout. Part IV will recommend actions that can be taken in light of the lawsuit to recalibrate what is a highly unequal bargaining dynamic between publishers and libraries, no matter the outcome of the case."

Tondelli, Cal R. (2021). Mass digitization and the consumer book market of the future. Loyola Consumer Law Review, 33(2), 420-440.

"This Note will examine the copyright protections that underlie book lending, apply them to CDL, and prognosticate what the retail book market will resemble post-Hachette. Part I of this Note will address the copyright law at issue in Hachette by walking through the legal protections that copyright holders and libraries each enjoy. Part II will analyze the legal positions of the Hachette parties after examining recent mass digitization copyright cases. Next, Part III will predict the effect Hachette's decision will have on consumer rights. Finally, Part IV will forecast the long-term direction of the retail book market based on sociological trends and technological advances."

Paganelli, Anthony. (2020). Legally speaking -The Internet Archive lawsuit. Against the Grain, 32(5), 63–64.

"The article reports on the publishers' lawsuit aims to stop the longstanding and widespread library practice of Controlled Digital Lending, and stop the hundreds of libraries using this system from providing their patrons with digital books."

Adams, Caralee. (2020, October 20). Michelle Wu receives Internet Archive Hero Award for establishing the legal basis for Controlled Digital Lending. [Blog].

"Michelle Wu is leading libraries to think and act in new ways to fulfill their missions. For nearly two decades, she has advocated for preserving and expanding access to materials by responsibly digitizing collections. Using her expertise as an attorney, law librarian and professor, Wu crafted the legal theory behind Controlled Digital Lending (CDL) and has dedicated much of her career to showing libraries how to put the concept into practice."

Enis, Matt. (2020). Publishers’ lawsuit against Internet Archive continues. Library Journal, 145(9), 12.

"The article reports on the response of the Internet Archive (IA) to a copyright infringement lawsuit filed by publishers Hachette, HarperCollins, Wiley and Penguin Random House on July 27, 2020 by filing a brief in the U.S. Southern District of New York that denies all charges of wilful infringement. Topics discussed include statement of the publishers in the lawsuit, information on the fair use doctrine, and the model, popularly known as Controlled Digital Lending (CDL)."

Albanese, Andrew. (2020, July 29). Internet Archive answers publishers' copyright lawsuit. Publishers Weekly.

Romano, Aja. (2020, June 23). A lawsuit is threatening the Internet Archive — but it’s not as dire as you may have heard: The Internet Archive spent years testing the boundaries of copyright law. Has it gone too far?  Vox.

Grady, Constance. (2020, April 2). Why authors are so angry about the Internet Archive’s Emergency Library: Authors are suffering under the pandemic economy, too. They say the Emergency Library will make things worse. Vox.

Freeland, Chris. (2020, March 24). Announcing a National Emergency Library to provide digitized books to students and the public. Internet Archive.

Wu, Michelle. (2019). Revisiting controlled digital lending post-ReDigi. First Monday, 24(5/6).

"This paper looks at the recent Redigi court decision and discusses its impact on controlled digital lending programs (CDL) by libraries. As there are notable differences in facts between Redigi and CDL programs, the decision should have minimal impact on the framework designed to digitize and lend library materials within the United States."

The Authors Guild. (2019, January 18). Controlled Digital Lending is neither controlled nor legal.

Hansen, David R., & Kyle K. Courtney. (2018). A white paper on Controlled Digital Lending of library books.

"This paper is about how libraries can legally lend digital copies of books. It explains the legal and policy rationales for the process— “controlled digital lending”— as well as a variety of risk factors and practical considerations that can guide libraries seeking to implement such lending. We write this paper in support of the Position Statement on Controlled Digital Lending, a document endorsed by many libraries, librarians, and legal experts. Our goal is to help libraries and their lawyers become more comfortable with the concept by more fully explaining the legal rationale for controlled digital lending, as well as situations in which this rationale is the strongest."

Wu, Michelle M. (2017). Piece-by-Piece review of digitize-and-lend projects through the lens of copyright and fair use. Legal Reference Services Quarterly, 36(2), 51–73.

"Digitize-and-lend library projects can benefit societies in multiple ways, from providing information to people in remote areas or with physical disabilities to facilitating the sharing of library resources with information-poor communities. This article explores the potential of digitize and lend as well as outlines how projects can be undertaken in a manner respectful of the balance of copyright."

National Information Standards Organization. (n.d.) Interoperable System of Controlled Digital Lending. Retrieved April 5, 2022.

"Controlled Digital Lending (CDL) is a method that allows libraries to replicate the right to loan their legally acquired items in a digital format to patrons under controlled conditions, and that has grown in application in recent years. Through CDL, libraries use technical controls to ensure a consistent "owned to loaned" ratio, meaning the library circulates the exact number of copies of a specific title it owns, regardless of format, putting controls in place to prevent users from redistributing or copying the digitized version.

As with any expansion of an existing service, there are new elements, features, and practices that need to be developed to adapt traditional circulation and ILL activities, policies, and infrastructure to the requirements of CDL.  This proposal outlines a project to develop a consensus framework in support of controlled digital lending of book content by libraries, to be published as a NISO Recommended Practice. This framework will describe existing practice and define best practices for many aspects of this relatively new service model. Through a NISO consensus process, the outcomes will expand understanding of CDL as a natural extension of existing rights held and practices undertaken by libraries for content they legally hold.

The NISO IS-CDL Working Group began its work in January 2022. We will update this space periodically as the work progresses."

Wu,  Michelle M. (2019). Shared collection development, digitization, and owned digital collections. Collection Management, 44(2-4), 131-145.
Available at SSRN: https://ssrn.com/abstract=3328624 or http://dx.doi.org/10.2139/ssrn.3328624

"While library models already exist for sharing physical materials and joint licensing, this paper envisions an aspect of future collections involving a national digital collection owned, not licensed, by libraries. Collaborative collection development, digitization, and digital object management of owned collections can benefit societies in multiple ways, from expanding access to users otherwise unable to reach these materials, to preserving content even when disaster strikes, to reducing duplication of effort and expense in collection or digitization. This article will explore both the benefits of and the challenges to this type of collaboration."