By Bijit Das and Meril Mathew Joy
Digitisation has made access to information much easier and more convenient for the public. Now, with pandemic forcing the public to stay home, the demand of online content or digital information has reached new heights, especially for the book readers. Even though digitisation has comforted the public but at the same time it has troubled IP holders. One such instance is the recent lawsuit filed by the 4 major publishing houses, namely Hachette Book Group, INC., Harpercollins Publishers LLC, John Wiley & Sons, INC., and Penguin Random House LLC, against the Internet Archive (IA) for copyright infringement by way of creating a “National Emergency Library” (NEL) in view of the current Covid-19 pandemic. The case was filed as the NEL was to temporarily suspend any wait list for borrowing e-books by the users/consumers and provide copies of work indefinitely to the reader in the times of Covid-19. Further making copies of works and putting them on a platform to be available for download, forms a clear infringement of copyrights irrespective of the intention.
Role Played in Background
Internet Archive is a non-profit organization motivated for building a digital library of Internet sites and other cultural artefacts in digital form in an effort to provide free access to all knowledge. One such project of Internet Archive is Open Library, funded in part by a grant from the California State Library and the Kahle/Austin Foundation, which presently has well over 20 million edition records online and provides access to 1.7 million scanned versions of books. Due to the Covid-19 outbreak, in March 2020, Internet Archive’s Open Library Project, proposed Controlled Digital Lending (CDL) which aimed to empower the libraries to turn their print holdings digital, offering digitized versions of the physical books in their collection to their customers. The libraries were required to join the Open Library, share their catalogue with Open Library and in return Open Library shared their catalogue of books to be incorporated in respective library’s catalogue, helping the library customers to access wide range of information. Due to continued lockdown restrictions and limitation of public to access information, Open Library at Internet Archive offered National Emergency Library (NEL), to provide free remote access to all information. The National Emergence Library is basically a temporary collection of books that supports emergency remote teaching, research activities, independent scholarship, and intellectual stimulation while universities, schools, training centres, and libraries are closed. This temporary arrangement under National Emergency Library by Open Library at Internet Archive, has forced the publishers to take legal action against such unauthorized open access/ free access to the books without obtaining any valid license from the publishers.
The lawsuit was filed before the Federal Court of Manhattan by Hachette Book Group, HarperCollins Publishers, John Wiley & Sons, and Penguin Random House. The publishers contended that initially the books were made available to the customer for a period of 14 days however with the Covid-19 situation the internet archive lifted such restrictions and allowed the access till the end of health crisis under its National Emergency Library scheme. The President of the Association of American Publishers, Maria A. Pallante said “There is nothing innovative or transformative about making complete copies of books to which you have no rights and giving them away for free…They’ve stepped in downstream and taken the intellectual investment of authors and the financial investment of publishers, they’re interfering and giving this away” She further said that “There is nothing in the copyright law which authorizes the mass copying of and distribution of 1.3 million scanned books to the public, regardless of whether those copies are downloaded by one person or millions.”
Does Free access to E-books amount to Copyright Infringement?
The publishers have accused the Internet Archive liable for copyright infringement by stating that without any license or payment of royalties to the authors/ publishers, Internet Archive scans, prints, uploads illegally scanned books on its server and then allows the users to access the complete books with few clicks on internet.
On the other hand, Internet Archive has defended its action by claiming that the services offered to the public was in form of a library, as physical access to library were not available to public. Brewster Kahle, the founder and digital librarian of Internet Archive, said “As a library, the Internet Archive acquires books and lends them, as libraries have always done…This supports publishing and authors and readers. Publishers suing libraries for lending books, in this case, protected digitized versions, and while schools and libraries are closed, is not in anyone’s interest.” The emergency library launch was highly appreciated by historian Jill Lepore who said “If the books you need aren’t in any bookstore, and, especially, if you are one of the currently more than one billion students and teachers shut out of your classroom, please: sign up, log on, and borrow!” The National Emergency Library was offered as a medium to help students, teachers, researchers and scholars to have remote learning access to the information that is required for their learning and growth.
Practice behind CDL and NEL
The Internet Archive’s submissions with respect to the National Emergency Library, is mainly with respect to giving access for remote learning purposes. As the books in the collection are mainly received through donations or purchase or through their partnership with Better World Books (non-profit), and therefore the platform also allows the authors to contact them in case the books are to be removed from the listings.
The Internet Archive argues that CDL practice is lend-like-print system allowing the library to lend a book to the user by using technological protections against further redistribution, and this CDL practice is protected under the doctrine of Fair Use. The National Emergency Library is close to CDL, the mandatory requirement of waitlist stands suspended. The National Emergency Library is a measure taken by Internet Archive to support the requirement of all students, academicians, researchers and scholars during the difficult time of Covid-19 pandemic.
Upon reviewing the Position Statement on Controlled Digital Lending (CDL), it was noted that the major principles used to justify the CDL practice was the First Sale and the Common Law Exhaustion Principle (which stated that that any time there is an authorized transfer of a copy of a copyrighted work, the rights holder’s power to control the use and distribution of that copy is terminated or “exhausted.”) and Fair Use (by proving (i) the purpose and character of the use, including whether such use is of a commercial nature or is for non-profit educational purposes; (ii) the nature of the copyrighted work; (iii) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (iv) the effect of the use upon the potential market for or value of the copyrighted work). While justifying the Fair Use, it was mentioned on the Position Statement that a user is typically granted temporary access to the entire work for non-commercial, socially beneficial purposes. After the temporary lending period, the user may no longer access the book, unless she checks it out again. If the library only owns one physical copy of the work, then additional users must wait in line.
What are we looking forward to?
Since the waitlist requirement under CDL, stands suspended under NEL, therefore the proving fair use becomes more difficult at this stage. With books of publisher being made available to public at large, without authorization or valid license, and making the work available to multiple authors at the same time without any limitation and restriction, appears to not only damage the potential market of the copyright owner but also forces the publishers/ copyright owners to suffer loss.
The traditional library usually pays licensing fees to the publishers and/ or owners and accordingly formulate action plan to make the work available to user for a particular period and for specific number of time, whereas the Internet Archive under NEL offers free access to information/ books without paying any license fee or royalty to the publisher or owners. Even though Internet Archive is trying hard to cover the scope its practice under the ambit of Fair Use, however the same appears to be very difficult especially in light of the NEL practice.
The use of doctrine of exhaustion also appears to be misplaced, as the doctrine even though does restrict the rights of the copyright owner in respect of lawfully purchased work, however such restriction does not enable the lawful purchaser to damage the potential market of the copyright owner and also does not allow such lawful purchaser of work to exercise any exclusive right which is available to the copyright owner.
While looking at the matter as a whole the submissions by the publishers appears to be reasonable especially considering their exclusive IP rights, however what makes the matter at hand more interesting is that the services offered by NEL, is a solution during the Covid-19 lockdown (considering the closure of educational and related institutions) and, public health and psychology. A major argument in the matter appears to be relied on the learning activities, therefore the decision of the Federal Court will have a huge impact on exploitation of the work during pandemic and post pandemic scenario.