As I was writing my post on Understanding Fair Use, I realized that not only do few people understand it, it often gets confused with First Sale, an entirely different but even more essential component of copyright law, especially for libraries. I say this because that’s what my brain did. I mushed the two together. So, I thought it only prudent to clarify, if only for myself, the finer points of the First Sale Doctrine and why it is so important to libraries, not to mention used booksellers, both physical stores and digital providers (think Amazon Marketplace or eBay). But this post will just focus on libraries.
The First Sale Doctrine is pretty essential to libraries, since it governs how the owner of a book can use that book after it was purchased. Why is this important? Because a library’s right to lend books that they purchase is protected by the First Sale Doctrine. On a page sharing a bunch of resources related to First Sale, ALA boils the doctrine down to this easy-to-understand sentence (which I can share thanks to Fair Use. Get how connected everything is?):
Quite simply, first sale is what allows libraries to do what we do – lend books and materials to our patrons, the public.
But libraries have been around for years, you say, and the law is pretty well set in stone, you add. So why should I care about first sale, you ask?
Well, since the arrival of the digital era and explosion of eBooks, first sale has become an important issue for librarians again, as well as for patrons who benefit from the First Sale Doctrine as much as we do, if not more so. The copyright laws have luckily been written flexibly, allowing first sale to readily adapt to digital technologies. But that hasn’t kept publishers from lobbying for nuances that allow them to do things like charge 3 or 4 times the cost of the print title for the same digital title. These titles are also often bought on a subscription basis, meaning the library can lose access to the title if they don’t renew their “subscription,” (i.e. pay again for the same book on an annual basis). Some publishers refuse to even allow libraries to purchase eBooks from them.
Publishers argue that this is right because digital files don’t degrade like books do. But with the exception of accidental damage that is generally more rare at our library, it is much longer than a year for most books to begin showing wear. And often that wear is cosmetic, meaning the pages may just turn orange on the edges (generally due to exposure to the sun), but are still perfectly legible. But more importantly, publishers also argue that fair use requires that access isn’t easy, a factor that judges find convincing. A patron looking to check out a physical book faces some factors they must overcome, for example being able to get to the library and for the book to be on the shelf, as opposed to checked out by another patron, in order to access that content. Digital books remove some of those issues, so publishers make them harder for libraries to get to compensate.
So next time you wonder why libraries don’t always have every book you want in that format, understand that it often isn’t the libraries fault. Either that title is too expensive in that format, or the publisher of that title has refused to offer their books to libraries. You can read more about libraries and ebooks on the American Library Association website, including the many ways publishers are restricting library access to eBooks. You can also consider becoming a library activist and telling your representatives that the First Sale Doctrine should be protected for all.