Balancing Copyright And Access: The Internet Archive Case And The Implications For Fair Use In Digital Lending

Introduction: The Dual Approach of Copyright Laws

The Copyright laws take a dual approach inbalancing the equilibrium of interest between creators and public interest, considering the user needs of copyrighted material while enhancing the reconciliation between two parallel goals. However, their interests are often in contradiction. The arguments put forth by the parties in Hachette Book Group, Inc. and others v. Internet Archive highlight the conflicting interests, allowing readers across the world to delve into the dichotomy of fair use of copyrighted works and ensuring theAuthor's rights. The internet archive, thriving on the motto of providing 'universal access to all knowledge,' conceded to the judgment delivered by Second Circuit and decided to remove books from lending, leading to the digital lending unavailability of more than 500,000 books, creating an upheaval to readers and researchers at large.

The Internet Archive Case: A Clash of Interests

The dispute commenced with Hachette Book Group, Inc. and others (the "Publishers") having exclusive rights from the author to publish the book, preventing any unauthorized copying disbursement. The publishers alleged Internet Archive of copyright infringement as it houses 33,000 unauthorized books on its website thatpublishers have protected by avalid copyright; the website was prosecuted in therealm of infringing publisher copyright in 127 works in thesuit. On being prosecuted, IA wielded the defense of 'Fair use.'

A Missed Opportunity: Incomplete Assessment of Fair Use Pillars

The Second Circuit's denial of the exemption to IA was based on assessing the four pillars of fair use. While the second and third factors assessing the infringement remained obsolete, the analysis by the court on the first and fourth factor offers an assessment filled with gaps; the first factor has two dimensions, one being 'transformativeness' and the other 'commerciality,' while the court dissented with the district court on the commerciality stance holding IA work to be non-profitable. However, this factor was not conclusive as IA work was not transformative, forming the core of the discourse and tilting the factor in favor of the publisher. In the past, the court considered 'improving the efficiency of delivering original content' by the alleged infringers as transformative, also laying the basis of the IA defense. However, the court deciphered that doing the same in the present would jeopardize the publisher narrowly, if not in its entirety, eviscerating the 'copyright owners' exclusive rights. What the court failed to look upon was the after-effects of the removal that led to an outcry among the users to whom the website offered a ray of hope, providing access to literature and reading materials across the edges of under-served regions, waiving fees on e-book licensing or accessible materials that find it's place nowhere. The court failed to provide any recourse to the readers worldwide, leaving their shoulders hinging on the IA website.

While dealing with the fourth factor, 'the potential market effect,' the court often views it as a defining factor whose significance cannot be sidelined. The Second Circuit decision in the present case failed to take into account the proper assessment of the factor as even upon data substantiation by IA proving a lack of harm to the publisher's print and e-book market; the court went on to agree with the publisher's uncorroborated assertions relying on common sense assertions favoring publisher on inferences rather than empirical data. The court, by doing this, drew a contradictory stance which, on one hand, admitted that the fourth factor undoubtedly acts as the most critical element of fair use assessment and then went by assessing on logical inference rather than empirical data and substantiated analysis.

The court concluded by considering the IA argument of providing the public benefit as short-sighted and inconsistent with the copyright act. The court highlighted that IA use, if not denied, would create a dearth of creative activity as a lack of motivation to produce new work in the backdrop of copying and dissemination, taking into account the publishers and authors' concerns, who are already privileged. They failed to consider the other community of authors, potential researchers, and readers who use IA work to create.

The judgment would have been applauded if all four pillars of 'fair use' had been considered and not just relied on one aspect of transformative-ness and the potential impacts on authors and publishers.

The Potential implications of the judgement

The case was the first of its kind to address fair use in controlled digital lending. The judgment's implications on readers can be assessed through user comments responding to the ruling. This judgment may have far-reaching consequences, from establishing a precedent for future cases related to controlled digital lending and disseminating knowledge. The verdict has skewed the balanced approach the copyright act vouches for and shifted the balance unfairly to one factor. The future cases must take a balanced approach, unlike the present assessment.

Tracing Parallel Patterns in the Indian Setting

The ongoing battle in Delhi HC against 'Sci-Hub' and 'LibGen,' which offer free access to journal articles and books paywalled by publishers. The publishers(plaintiff) seek an injunction against these platforms, returning the déjà vu from the internet archive case discourse. The platforms widely known as "shadow libraries'' have faced legal consequences across various jurisdictions, including the US imposing liability for copyright infringement. If brought to India without proper redressal, it can be detrimental to those relying on libraries for their research and writing work, making them lose out on free accessible knowledge and leading to the same chilling effect Internet archive users had to go through.

The Indian copyright statute provision 52 (1)(a) [an exemption to copyright infringement] reads itself as a broad interpretative statute using the term 'including research,' imposing that the act, if interpreted in the Delhi case for Sci-Hub, the same would not be attracting liability for infringement as it aims to provide the users with the availability of the concerned knowledge for research purposes.

Further, hailing the DU photocopy case observation 'to look upon the purpose of use' when determining whether the alleged work constitutes fair use or not, the holding can relieve these shadowed libraries that hinge on enabling affordable access to materials posing the work to be used for fair purpose.

The need to set redressal mechanisms

The courts and legislation worldwide must consider providing recourses that disseminate knowledge in the form of books, articles, and pieces beneficial to the public for those who cannot afford paid access and lean onto these shadowed websites, considering the right to access knowledge for free under the umbrella of the Right to free education being a cardinal principle.

The state could tie up with paywalled publishers, granting them remuneration while making the work available for free or at a lesser cost, enabling itself to comply with copyright laws.

Various writings available on the internet, which formed part of the literature for this piece, speak as a testament to the necessity of free resources accessible on multiple websites. Copyright Act, whilst being a legislation, forwards the exception of fair use for widespread dissemination of knowledge. The courts must take a balanced approach, upholding the sanctity of legislation and balancing out the parallel needs of users who have accessible knowledge while granting rewards to the work the author creates. Accepting and rejecting the fair use doctrine must be done in a way that doesn't outweigh one essential factor over another. While the US ruling may have repercussions on the court deciding fair use in controlled digital lending, it may lead to them taking a narrower approach, eventually creating a vacuum of accessible knowledge that benefits the public at large.

References

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.