At the intersection of public service and the market: Libraries and the future of lending

Abstract

Most library uses of books occur outside the purview of copyright and the market. Loans fall outside copyright's exclusive rights; libraries have exceptions for many activities that involve copying. Author remuneration for library uses via the public lending right is governed by distinctly non-market considerations. This changes when works take digital form: electronic lending involves copies and transmissions which copyright owners have a right to license. As a result, libraries' ability to engage in electronic lending is governed by private contract, which means market forces largely determine the terms on which libraries can provide access – and whether they may do so at all. This has potentially significant implications: libraries have traditionally played an important role in furthering the public's interest in access to content and other societal goals including the encouragement of Australian authorship. This article 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?