Digital lending and public access to knowledge

The lending of books in electronic format by public libraries (digital lending) is gaining increasing importance both in the US and in the EU. Digital lending involves a number of acts that are subjected to the copyright holders’ exclusive rights, but – unlike in the case of the loan of physical books – a general consensus has emerged that no exception or limitation provided by copyright law may be applied to such activities. Thus, public libraries are currently offering to their patrons digital lending services based not on copyright limitations or exceptions, but on contractual arrangements among the parties concerned. Quite interestingly, despite the fact that they are aimed at regulating digital objects, many of such agreements provide solutions that intentionally mimic some of the “frictions” of the physical world (for example, distance between users and libraries, rivalry in consumption and deterioration of physical books and so on). Private-ordering models have proven to be satisfactory for copyright holders, who object to the introduction of a specific exception in copyright law and argue that “frictions” are needed for digital lending not to interfere with the market for the sale of e-books. On the other hand, however, many librarians consider such “frictions” to be nonsensical in the digital environment and point out that contract-based solutions for digital lending have led to unnecessarily high prices and, in some cases, a refusal to supply e-books to libraries. Although many limitations that are inherent in the use of physical books may seem absurd when applied to intangible copies, this chapter argues that incorporating a number of “frictions” into digital lending models may be a fair price to pay in exchange for its judicial (or, in a next future, legislative) recognition as an activity not subjected to the copyright holders’ exclusive rights.