A United States Court Of Appeals, earlier this month, in a significant decision held that it is NOT "fair use" for a non-profit organization to scan copyright-protected print books in their entirety, and distribute those digital copies online, in full, for free, without authorization from the copyright-holding publishers or authors.
The Court was hearing an appeal filed by Internet Archive against a judgment by the US District Court in the Southern District of New York denying the appellants their motion for summary judgment.
As reported earlier, last year, United States District Court in the Southern District of New York ruled in favour of four leading book publishers in a copyright infringement suit against the non-profit the Internet Archive for lending digital copies to their users without obtaining prior permission from the publishers. The four leading publishers are – Hachette Book Group. INC, Harper Collins Publishers LLC, John Wiley and Sons. Inc. and Penguin Random House LLC.
Background
Internet Archive (IA) is a non-profit organisation dedicated to providing, "universal access to all knowledge." This organization works with libraries, museums, universities and the public to preserve and offer free online access to texts, audio, moving images, software and other cultural artifacts. The basic modus operandi of Internet Archive is to acquire print books directly or indirectly, digitally scan them, and distribute the digital copies while retaining the print copies in storage.
However, during the Covid-19 period, all libraries were shut nationwide. Thus, on March 24, 2020, IA launched what they called 'National Emergency Library' (NEL), intending for it to run "through June 30, 2020 or the end of US National Emergency, whichever is later." During the NEL, Internet Archive lifted the internet control enforcing its one-two-one owned-to-loaned ratio and allowed upto 10,000 patrons at a time to borrow each e-book on the website. Although the NEL ended on June 16, 2020, and Internet Archive returned to its traditional control digital lending, which remains in effect. Shortly after this the plaintiff publishers moved court.
Allegations Against Internet Archive
Two years after the NEL, Internet Archive's user base increased from 2.6 million to about six million. The publishers alleged that the appellants infringed their copyrights in a total of 127 Works in suit. Works in suit are a range of published fiction and non-fiction works. On July 28, 2020, the appellants replied to the allegations, principally asserting a defence of 'fair use' with respect to its lending of the Works in suit through Internet Archive online library generally and during the NEL specifically.
Court's Observations
Court noted that within the framework of the Copyright Act, IA's argument regarding the public interest is short-sighted. True, libraries and consumers may reap some short-term benefits from access to free digital books, but what are the long-term consequences? the three circuit judges enquired.
"If authors and creators knew that their original works could be copied and disseminated for free, there would be little motivation to produce new works. And a dearth of creative activity would undoubtedly negatively impact the public. It is this reality that the Copyright Act seeks to avoid.
While IA claims that prohibiting its practices would harm consumers and researchers, allowing its practices would―and does―harm authors. With each digital book IA disseminates, it deprives Publishers and authors of the revenues due to them as compensation for their unique creations."
Conclusion
The Court concluded that even if certain tools associated with IA's reproductions offer some minor functional benefits not associated with the original works (such as linkability), because IA offers these functionalities by reproducing and making publicly available the copyrighted works in their entirety, those benefits are overwhelmingly outweighed by the other fair use considerations. Accordingly, IA's defence of fair use fails as a matter of law, the Court said.
Finally, affirming the district court's judgment, the Court of appeals observed –
"The parties in this case represent potentially serious interests. On the one hand, eBook licensing fees may impose a burden on libraries and reduce access to creative work. On the other hand, authors have a right to be compensated in connection with the copying and distribution of their original creations. Congress balanced these "competing claims upon the public interest" in the Copyright Act. We must uphold that balance here.
IA asks this Court to bless the large scale copying and distribution of copyrighted books without permission from or payment to the Publishers or authors. Such a holding would allow for widescale copying that deprives creators."
Click here To Read The Judgment
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.