The Shrinking First-Sale Doctrine

The digital age is affecting libraries in profound ways. Libraries must negotiate with publishers and distributors to license electronic content and libraries must also find ways to manage that content. Electronic content is also shrinking the pool of material that libraries can lend.

The Chronicle of Higher Education reported on the effect that streaming media has on the first-sale doctrine and the ability for libraries to lend. The article provides the following case-in-point:

"In March 2011, the University of Washington’s library tried to get a copy of a new recording of the Los Angeles Philharmonic playing a piece by Gustavo Dudamel, a popular composer, that the library could lend to students. But the recording was available only as a digital download, and Amazon and iTunes forbid renting out digital files.

So the librarians contacted the Philharmonic to see if there was some way they could get a copy of the Dudamel album that they could loan out like a compact disc. The orchestra referred them to a distributor, which referred them to the publisher, Universal Music Publishing Group. At first the corporation said it couldn’t license the Dudamel recording to the university, according to the librarians. Later it offered to license 25 percent of the album for two years in exchange for a licensing fee plus a $250 processing fee."

This is a new issue with online-only, streaming content. "In previous decades, the university librarians might have bought a CD of the Dudamel album for $25 and kept it in circulation it for as long as the disc remained viable. Here they were asked to pay the publisher 10 times that amount (plus a licensing fee that would probably exceed the processing fee) for access to a quarter of the album for two years. 

Old-fashioned media—books, tapes, CDs, etc.—are governed by the first-sale doctrine, a legal provision that allows a buyer to do whatever she wants with a copy. The licensing of digital media, however, gives publishers far more power. Instead of selling an album outright, they can sell permission to access its contents for a fixed amount of time."

Librarians see this is an "existential crisis" as traditional media is phased out. In the coming years, it will be of utmost importance for libraries to negotiate broad lending terms for electronic content or libraries may be faced with locked collections and the limited ability to lend


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