NEWS FEATURE Taking on the law
The Internet Archive court case shows that libraries can step into the ring with multi-billion dollar, multi-national companies, and behave as if the legal system might defend their right to exist.
THE Internet Archive (IA) was sued by four of the biggest pub- lishers in the US for making digital copies of books and lending them via its National Emergency Library in 2020. It lost the case but is appealing.
Many say the judge backed com- mercial interests rather than public ones, as voiced by IA founder Brewster Kahle: “Libraries are more than the customer service departments for corpo- rate database products. For democracy to thrive at global scale, libraries must be able to sustain their historic role in society – owning, preserving, and lending books. This ruling is a blow for libraries, readers, and authors and we plan to appeal it.”
According to Knowledge Rights 21, an organisation well placed to compare the EU and UK with the US, the legal environment here would probably be friendlier to the Internet Archive. The problem is that we just haven’t tested it yet.
Stephen Wyber, a member of KR21’s Management Committee, says some Controlled Digital Lending (CDL) is more provocative than others: “If it’s just CDL (with an owned-to-loaned) ratio then, while this is an untested idea, there is an argument that at least under EU law, it could be doable. This is because it’s already established that you can lend ebooks effectively as an exception to the communication to the public right, and there’s also a prec- edent for saying that if digitisation is necessary to deliver on an exception, then it can be permissible. There may also be a case for saying that education exceptions allow this.”
Even a version of the National Emer- gency Library could be supported as “we arguably have something a little like this in Europe with provisions on Out of Commerce Works, which allows for theoretically unlimited access to digitised works which are no longer on sale. Of course, there are plenty of bar-
12 INFORMATION PROFESSIONAL
pidly high statutory damages, but even then, it would be welcome in order to avoid a chilling effect on anyone trying to use the full possibilities available under the law to deliver on library missions,” Stephen says.
His KR21 colleague Ben White, adds: “The reason that you get testing cases such as this is because US copyright law is more supportive of research and education as well as new technological uses, as it is more flexible. They have fair use which is a test whether an Act is infringing, whereas we have a finite list of specifically enumerated excep- tions. Fair use does the heavy lifting in law allowing new previously unthought of uses, so encourages experimentation and innovative uses that are finally decided by the courts.”
He adds: “Post Brexit the UK could introduce flexibilities in copyright like fair use to encourage new innovation – essentially it’s an economic policy. KR21 believes we should do so.”
riers to this working, but the possibility is there.”
Untested
But these possibilities are untested, and there are lots of reasons why. Stephen says there’s “a tendency in copyright training to focus on what you can’t do, rather than what you can”. Also, when librarians take legal advice it will be conservative because, for those advisers, the “main success metric is not getting sued”. Some of it is also down to the law itself. “One failing in the UK and EU is that there isn’t a protection in law against liability even when librarians are acting in good faith. Of course, this is more necessary in the US given stu-
Grass roots Whatever its failings, the US legal system seems to encourage grass roots activism so the library sector has many legal irons in the fire (
https://bit.ly/3NwZWqU). Stephen says that, apart from some cases, here the route is to influence politicians to change the law through government: “Importantly... we should be careful about self-fulfilling prophecies – telling ourselves that we aren’t able to make things happen and depending on government is likely to mean that we stop trying. There are things we can do – for example just striking out bits of contracts we shouldn’t accept, being ready to share information and making a fuss when copyright laws simply don’t work for us and our users.”
His message is that “yes, a more pro- active approach would be welcome (in the EU and the UK), given that this is consistent with active upholding of the value and role of libraries.”
April-May 2023
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