infoJustice

Authors: Rebecca Giblin and Kimberlee G. Weatherall

Abstract: For the most part, library uses of physical objects embodying copyright protected works occur outside the purview of copyright and of the market. Loan of physical books falls outside the copyright owner’s exclusive rights; uses that might otherwise invoke them, such as the making of copies for interlibrary loans, have been explicitly carved out through exceptions. Authors are remunerated for Australian library uses via statutory public lending rights, which use distinctly non-market considerations in distribution.

That all changes when works take digital form. Lending bits instead of books requires making copies and transmissions, which puts those transactions squarely within the purview of the copyright owner. As a result, their contours end up being determined by private contract (supported by laws prohibiting the circumvention of technological access controls). Thus the forces of the market rule whether libraries get to lend ebooks, and on what terms, with some ad hoc, poorly thought-through and very limited carve-outs.

Allowing largely unqualified operation of market forces in this emerging format has potentially significant implications for Australian society. Libraries have traditionally played an important role in furthering the public’s interest in access to content in Australia, as well as a range of other societal goals including the encouragement of Australian authorship. This paper provides a doctrinal mapping of the regulation of physical and digital lending. It also identifies avenues of investigation which need to be explored to inform the practices of libraries and policymaking. What could we lose by a wholesale operation of market forces? And what could we gain?

Citation: Giblin, Rebecca and Weatherall, Kimberlee G., At the Intersection of Public Service and the Market: Libraries and the Future of Lending (August 1, 2015). Australian Intellectual Property Journal (forthcoming 2015).

Full text on SSRN: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2647705