EXTRA All of us here at the RightsTech Project wish everyone a happy and prosperous 2023.
Looking back at 2022 one of the more interesting, if unexpected, rights-related sectors to prosper during the year was used-book sales. According to the international research outfit WordsRated, sales of used books rose 5.5% over 2021, to reach $24.03 billion worldwide, or roughly 15% of total global book sales. The group further expects that growth to continue, or even accelerate, over the next decade at a compound annual rate of 6.6%, with sales reaching $45.53 billion by 2032.
In this end-of-ownership era, when digital files can be remotely disappeared from devices and courts have repeatedly held that their unlicensed redistribution is prohibited by copyright law, even where it is not restricted by technical protection measures, you would not expect to see such robust growth in sales of used copies of copyrighted works.
One main reason we see it in books is that physical formats — hardcover and paperback — continue to dominate the book trade, unlike music and movies where hard copies have mostly given way to remotely accessed digital bits. And the recirculation of physical copies is expressly permitted (even encouraged) in the law, under the First Sale Doctrine in the U.S. Copyright Act.
§109 Notwithstanding the provisions of section 106(3), the owner of a particular copy or phonorecord lawfully made under this title, or any person authorized by such owner, is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy or phonorecord.
USC Title 17
U.S. courts and the U.S. Copyright Office have interpreted that provision to not apply to digital copies, in part because the transfer of a digital file, as an ineluctable technical matter, results in a new copy of the file — a reproduction — which, without the permission of the rightsholder, by definition, would not have been “lawfully made.”
Another reason for the continued growth in used book sales, however, according to WordsRated, is “an increased focus on education and literacy around the globe in recent years,” particularly in East Asia and the South Asia, resulting in “an increase in the overall number of readers, creating a greater demand for used books.”
While North America and Europe currently claim the largest shares of the used-book market, at 27.8% and 25.1%, respectively, the researchers expect both East Asia and South Asia, currently at 16.3% and 15.0% of sales, to increase their respective global shares of the market over the next 10 years.
Even in North America and Europe, however, education plays a leading role in driving used book sales, as can be seen in the list of the best-selling used books. At least five of the top 10 titles would be familiar to anyone who attended high school or college in the U.S.
As of 2016, according to WordsRated, 70% of students reported having purchased used books.
The role of used books in promoting literacy and education, in fact, has a very long history, going back to a time before Gutenberg. The emergence of universities and the institutionalization of education in Europe, beginning in the late 12th Century, created a demand for texts for students to study from at a time when books were both rare and expensive to produce. Copying manuscripts often required the labor of specialist scribes as well as large supplies of expensive materials, such as parchment or velum.
In response, merchant booksellers quickly learned to set up shop around the new universities to provide students with the required texts, trading mostly in used copies. Booksellers, known as stationers, also administered the university-supervised pescia system, another form of recirculation, in which texts were broken into sections and rented by the piece to students to make their own copies. The sections were then returned and exchanged for other sections until the complete text had been copied.
An echo of that history can be heard in the U.S. Constitution’s conception of copyright (and patents) as a mechanism to “promote the progress of science and useful arts.” It also reverberates through the Supreme Court’s ruling in Bobbs-Merrill v. Straus (1908), holding that copyright does not confer a statutory right upon copyright owners to control the resale of copies of their work once put into commerce, and in Congress’ subsequent codification of that principle in §109 of the Copyright Act.
When I attended college, at least a few centuries after the first universities, the redistribution of copies was still playing a vital role in education, and not just the redistribution of books. Many of the independent bookstores that surrounded campus and sold used editions of the most frequently assigned texts, also dealt in used vinyl LPs. And it was among those haphazardly organized bins, and those of the many used record stores that were then numerous in New York, that I first encountered the early recordings of Robert Johnson, Son House, Sonny Boy Williamson and the seminal field recordings of John and Alan Lomax, among others, many in reissued collections that, themselves, were long out of print.
Not only did those discoveries inspire and abiding love of American blues, they also sparked an interest in how those recordings came about. The subsequent reading I did in pursuit of that interest led me to investigate early recording technology, the growth of broadcasting and the technology-driven commercialization of folk traditions. It became very much a part of my education, such as it is, and likely helped steer my later professional path into covering media, technology and public policy.
(Tip for aspiring cultural historians: There is a doctoral dissertation to be written on the post-Civil War expansion of railroads, the emergence of Sears Roebuck and other national and regional catalog merchants, and their role in shaping folk music forms. By making affordable guitars, fiddles and harmonicas available to rural and marginalized populations, they helped cement those instruments as the signature accompaniments in American vernacular music.)
Would I have encountered those old recordings if I had had Spotify back then? Maybe, if they were included in a playlist I followed. But would such algorithmic prompting have carried the same frisson of serendipitous personal discovery that would fire a life-time and professional interest in them? I’m not sure.
It’s a paradox of our digital age that the availability and access to books and music, both old and new, have expanded exponentially while the scope of permissible redistribution of them has narrowed significantly, for commercial, technological and statutory reasons.
Some would argue that redistribution is no longer necessary to achieve the goal of promoting the progress of science and useful art. That it’s a relic of an age when access to works was constrained by supply — something unlimited digital access under license has rendered moot.
But “progress” and “usefulness” are not simply matters of supply and demand. They’re ideals and aspirations.
In any case, written works — books — are still primarily distributed in physical copies. And where they are made available electronically, publishers often seek to suppress the purported benefits of digital access through the use of technical measures. Many e-textbooks, for instance, are embedded with an access code that can only be redeemed once, preventing their transfer. Access to digital copies of textbooks is also often time-limited, and expires at the end of an academic semester, preventing their archiving or later reference.
In other words, not all digital access is created equal, which partly explains why buying used hardcover and paperback books remains so popular, particularly among students.
Copyright has always involved a balancing of interests, and it relies largely on market mechanisms to achieve its goals. But as the Supreme Court recognized in Bobbs-Merrill, the recirculation of goods is an essential feature of a market economy that cannot be made to yield to the statutory limitations of copyright.
That’s a paradox that still lurks at its heart.
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