Internet Archive to Senator: No “Emergency Copyright Act” Required, Fair Use Has Library Covered

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The row over the Internet Archive's National Emergency Library, which aims to fill the learning gap in the midst of the COVID-19 crisis, has now reached government. In response to a letter sent by Senator Thom Tillis, which accuses IA founder Brewster Kahle of creating an "emergency Copyright Act", Kahle says that such a thing isn't needed, as fair use has the project covered.

On first view, making books, learning and other research materials available online during a nationwide library shutdown as a result of the coronavirus pandemic seems like a positive step. However, the National Emergency Library recently launched by the Internet Archive now finds itself in the middle of a controvery.

The National Emergency Library, which contains around 1.4 million scanned books, is free for everyone to access. Available until at least the end of June 2020, the library has effectively suspended wait-lists, which allows lenders to obtain books on a temporary basis but without having to wait until other readers have finished reading their copies.

However, copyright holders, authors groups and publishers have criticized the move, claiming that without remuneration for creators, the library acts as a glorified pirate site.

The Authors Guild, for example, described the move as “appalling”, slamming the initiative as pushing the boundaries of copyright law while trampling on the rights of struggling authors. The Copyright Alliance went further still, describing the project as “particularly vile“.

With pressure mounting, the government has now become involved. In a letter to Internet Archive founder Brewster Kahle, Senator Thom Tillis – whose Senate Judiciary Committee Subcommittee on Intellectual Property is currently conducting a review of the Copyright Act – says he recognizes the essential nature of books and the problems being encountered as a result of the coronavirus lockdown.

Citing various measures taken by copyright holders to “ease the struggles”, he highlights that these, however, do not break the law.

“These voluntary efforts should be commended, not only because they are expanding access to copyrighted works, but also because they do not violate copyright law or harm creators. On the contrary, these times have shown the critical value of copyrighted works to the public interest,” Senator Tillis writes.

Noting that he “deeply values access to copyrighted works,” the Senator insists that such access should be provided within the law. He stops short of citing any specific laws that the Internet Archive is supposedly breaking but suggests that the National Emergency Library is illegal nonetheless.

“I am not aware of any measure under copyright law that permits a user of copyrighted works to unilaterally create an emergency copyright act. Indeed, I am deeply concerned that your ‘library’ is operating outside the boundaries of the copyright law that Congress has enacted and alone has jurisdiction to amend,” he adds.

There are no overt threats in the letter, which may suggest that the Senator is hoping for an amicable agreement, perhaps by reverting the library to its original status with lending limits returned to normal and other copyright matters solved. However, Kahle doesn’t seem particularly interested in a compromise.

He insists that the National Emergency Library is not only essential in a time of national crisis, but is also acting well within the confines of existing copyright legislation.

“The National Emergency Library was developed to address a temporary and significant need to our communities – for the first time in our nation’s history, the entire physical library system is offline and unavailable,” Kahle informs the Senator.

“Your constituents have paid for millions of books they currently cannot access. According to National Public Library survey data from 2018-2019, North Carolina’s public libraries house more than fifteen million print book volumes in their hundred twenty-three branches across the State. Because those branches are now closed and their books are unavailable, the massive public investment paid by tax-paying citizens is unavailable to the very people who funded it.”

This specific example, Kahle notes, is echoed around the nation, affecting public, school, college and academic libraries alike. The National Emergency Library, he contends, aims to provide a solution by enabling teachers, students and communities to access the learning material currently out of reach.

Kahle also provides some lending statistics, indicating that 90% of the books borrowed thus far were published more than 10 years ago and two-thirds were published last century. Overall, he states, the volume of lending to date is comparable “to that of a town with 30,000 people”, with 90% returning books after reading them for just 30 mins.

“These usage patterns suggest that perhaps that patrons may be using the checked-out books for fact checking or research, but we suspect a large number of people are browsing the book in a way similar to browsing library shelves,” he adds.

Kahle insists that the library isn’t offering any recently published books and any authors who prefer not to have their books made available can ask the library to have them removed. This, he stresses, does not have to be via a formal DMCA notice but a plain request not to have their works included. He then addresses the issue of legality, in particular the Senator’s claim that the library has somehow enacted its own emergency legislation.

“You raise the question of how this comports with copyright law,” Kahle writes. “Fortunately, we do not need an ’emergency Copyright Act’ because the fair use doctrine, codified in the Copyright Act, provides flexibility to libraries and others to adjust to changing circumstances. As a result, libraries can and are meeting the needs of their patrons during this crisis in a number of ways.”

Kahle concludes by acknowledging that in their “haste” to respond to the urgent needs of teachers, students, and librarians, the project did not do enough to engage with authors, publishers and policymakers. However, he claims that those conversations are now underway and invites the Senator to contribute by addressing the urgent access needs of the country.

The letter from Senator Tillis and response from Internet Archive can be found here and here

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