There aren't any provisions specific to digital libraries and frameworks such as controlled lending have not yet been tested in courts in the country
The pandemic has required us to reorganise our lives and rethink how several laws operate. While much of the intellectual property rights (IPR) debate has been about patents in the medical context, the boundaries of copyright are being tested as well. With teaching moving online, there have been many questions on how copyright laws and “fair use” provisions extend to online uses. These are exceptions to copyright law, which allow the use of materials without the permission of copyright holders in some contexts. While the use of content by teachers solely for education would generally be covered under “fair use” exceptions, what of institutions such as libraries that serve public interest in a broader way?
An interesting debate has shaped up in the US in this context. In March, the US-based Internet Archive suspended wait-lists for the 1.4 million books in its catalogue by creating a “National Emergency Library” meant to last until the end of the lockdown. As per the Archive, this was done to give students access to assigned readings and library materials.
However, four major publishing houses sued the Archive in early June, claiming that it amounted to copyright infringement and piracy. For the uninitiated, the Archive is an NGO that describes itself as an internet library for “offering permanent access for researchers, historians and scholars to historical collections that exist in digital format.” It uses a system of controlled digital lending that partly relies on the first sale doctrine, which gives the buyer of a book the right to sell, lend or dispose it. The Archive states that it only digitally lends as many copies as it has in its possession and further lends to each user only for two weeks at a time. It maintains an “owned to loaned” ratio and puts in place measures to prevent redistribution or copying. However, the National Emergency Library temporarily amends this system to remove the wait-list, an action that the Archive asserts would be covered by the “fair use” exception under US copyright law. It argues that the lockdown made physical books in libraries inaccessible to the public and it is trying to fill this “unprecedented need” for books. Plus, its catalogue focusses on material published during the 20th century and not on contemporary bestsellers.
On the other hand, the publishing companies argue that the Archive is making books available in full for download without paying any licence fees or other payments, and that its actions exceed legitimate library services. The firms also dispute the Archive’s non-profit status and argue that the controlled digital lending system is not permitted under copyright law. Given the differences in physical and digital books, the complaint asserts that the latter are governed by different terms and conditions than the former. The American Association of Publishers also highlighted measures that publishers have already undertaken to enable access to resources, including by providing complimentary passes, flexible licences and other initiatives.
The Authors Guild, too, argued that the Emergency Library would divert income from authors by preventing them from introducing their books in digital formats when their books go out of print. It also contested that many of the books on the Archive were in-copyright books that authors/publishers rely on for revenue.
This issue essentially strikes at the core of the IPR law, which aims to incentivise innovation and progress for society by balancing the economic rights of copyright holders while also enabling access for public good. Therefore, user rights are an important component of copyright law as well, since enabling access may better serve the larger goal of innovation and progress. “Fair use” provisions are an important way in which this balance is struck in copyright systems globally. The ruling in this case will have significant implications for all users of the Archive and is likely to inform how the issue is examined in other jurisdictions as well. It also touches on the issue of what users are entitled to under copyright law. Publishers and rights holders taking measures to enable easier access during emergencies like the pandemic is certainly welcome. However, copyright law is meant to account for user rights as well, which are not dependent upon the largesse of rights holders. In the US, “fair use” analysis generally considers the nature of the copyrighted work, how and how much of the work is used and its effects on the copyright owner’s market.
In India, the Copyright Act has a limited clause in its “fair dealing” provision allowing libraries to store digital copies of works already in their possession. But there is no clarity on whether access to and distribution of such work is permitted.
There aren’t any provisions specific to digital libraries and frameworks such as controlled digital lending have not yet been tested in courts here. This leads to uncertainty on the legality of providing digital library access in India. As part of ensuring inclusion and access to resources and services, it is vital to assess how copyright law must adapt to digital technologies and how existing rights should operate in a digital context.
(The writer is Fellow, ESYA Centre)