On March 24, 2020, in response to the COVID-19 pandemic, the Internet Archive (archive.org) announced a National Emergency Library providing unlimited public access to its collection of 1.4 million archived books. All users have to do is sign up for an account and they are able to access a vast array of archived books, articles, and other literary works. This definitely sounds like a good deal for all of us stuck at home, but for many authors and copyright holders, this may be the straw that breaks the camel’s back.
The Internet Archive, which has been around since 1996, is a non-profit organization dedicated to building a library of internet sites and cultural artifacts in digital form. Their website, Open Library, claims to be digitizing 1000 books per day from all around the world. You may be wondering, how does this effect copyright holders? Well, they don’t ask for permission from rights holders before adding books to their digital archives.
The Internet Archive is technically considered a library, and they use a technology called ‘controlled digital lending’ (“CDL”) to simulate how traditional libraries loan out books. Ultimately, they believe their archiving is exempt from copyright infringement – but this is an extremely grey area in the law. Traditional libraries are allowed to loan out printed books they own because no copy is created in the process (as well, Section 108 of the U.S. Copyright Act gives exceptions to libraries and archives to reproduce works in certain circumstances). CDL works as follows: the library digitizes a legally acquired print version of a book, then they only allow a limited number of users to access the book at any given time – this simulates people renting a book from a library and returning it. You can imagine that many authors and copyright holders are not excited about this process.
Last year, The Writers Union of Canada, along with 36 other creator groups, wrote an appeal letter to the Internet Archive explaining how their conduct is illegal. They purport that any number of copies can be made when you have access to the book online, and they showcase this in the FAQ attached to their appeal letter. Truthfully, no one knows if what the Internet Archive does is illegal because it hasn’t been litigated. In the appeal letter, the writers argue that one reason for this is that no singular author has the time or money to litigate such a big case.
That may soon change with the announcement of the National Emergency Library, which no longer limits the number of users who can access a book at the same time. This new change, which is only available until June 30, 2020 (or until the National Emergency is over), contradicts the whole principle of CDL, which is meant to simulate lending physical copies. Furthermore, the Internet Archive made this decision unilaterally, without contacting any rights holders who may be affected by this decision.
If you’re an author, content creator, or website owner, I encourage you to check out archive.org to see if your book, works, or website has been archived. Currently there is no sure fire way to get your content removed, but their website explains a method to submit a request to remove your content. That being said, I suspect we will be seeing litigation about the legality of internet archiving in the future.
Written by Luca Vaez Tehrani, IP Innovation Clinic Senior Fellow and JD Candidate at Osgoode Hall Law School