In controlled digital lending, the issue of public interest

The outcome of the legal tussle in the U.S. between four major publishers and the Internet Archive will have ramifications for ‘Controlled Digital Lending’ initiatives across the world

April 05, 2023 12:08 am | Updated 12:31 am IST

‘The IA’s CDL model follows the lending approach generally seen in physical libraries’

‘The IA’s CDL model follows the lending approach generally seen in physical libraries’ | Photo Credit: Getty Images

An ongoing legal tussle in the United States between four major publishers and the Internet Archive (IA), which is a not-for-profit organisation trying to build a globally accessible digital library, has, once again, posed a fundamental question about the interface of copyright law and technological advancements — should copyright law protect the broader public interests or the commercial interests of the copyright holders?

The IA has archived more than 735 billion web pages, 41 million books and texts, 14.7 million audio recordings, 8.4 million videos, 4.4 million images, and 890,000 software programs. Within a short span of time, the IA has become a truly global digital library to access information, particularly for persons with disabilities. A substantial portion of the books digitised by IA are outside copyright protection and are accessible without restrictions.

Publishers have alleged that around 3.6 million books, which have also been available to borrow under some conditions, are actually copyrighted. They have been particularly upset by the ‘National Emergency Library’ that the IA set up at the peak of the COVID-19 pandemic, wherein the IA relaxed the conditions for lending.

Also read | Internet Archive loses lawsuit over lending e-books during the pandemic

The publishers have argued that the IA thus violated the diverse rights provided under copyright law for 127 titles published by them. The IA rebutted by arguing that books under copyright protection are lent only in a regulated manner, through ‘Controlled Digital Lending’ (CDL), and should, therefore, be considered to be ‘fair use’ under United States copyright law.

Understanding Controlled Digital Lending

The IA’s CDL model follows the lending approach generally seen in physical libraries, where if one copy is owned, that copy can be loaned to one person at a time. So, the IA avails one digital copy of each non-circulating print book it has stored.

Also, irrespective of the number of physical copies of that book that libraries participating in the IA’s digitisation project own, for the purpose of digital lending it counts as only one additional copy per library. For example, if libraries of the All India Institute of Medical Sciences, the Indian Institute of Science, and the National Law School of India University (NLSIU) were partners in the IA’s digitisation project and each of these institutions had six physical copies of a particular book on health law, the CDL model would ensure that readers could borrow no more than three copies of that book at a time.

But in a decision that can have far-reaching consequences for the future of CDL, the district court for the Southern District of New York (SDNY) has ruled in the motions for summary judgments that the IA’s activities violated various rights vested on publishers under copyright law, and that the activities do not constitute ‘fair use’ under the same law.

CDL and the public interest

Conversations with librarians indicate that lending physical copies of books from libraries, including at India’s leading universities in India, has been on the decline. But that does not mean the demand for reading books is going down so much as that people’s reading habits are changing. Closing physical libraries at the height of the pandemic may have just accelerated this shift. Today, many people prefer to read books on devices such as their smartphones and tablets.

The CDL is a positive response to this trend; it also helps bridge the gap between urban and rural, and the privileged and unprivileged, readers vis-à-vis access to books, because it allows even people in the remotest villages to access books from libraries that are far away.

It is also evident that CDL initiatives ease access to many books that may have gone out of print or may not be available to access in many physical libraries.

By making books accessible to readers, the CDL invokes enormous public benefits for education, research, and cultural participation. However, the court concluded that the public benefits highlighted by the IA “cannot outweigh the market harm to the publishers”. In this regard, the court overlooked some of the evidence the IA produced with regard to the works in the suit, which indicated that even when the IA was engaging in CDL, the sales of print and electronic copies of these titles from the publisher’s preferred platforms were not affected.

While assessing the public benefits vis-à-vis potential economic losses for copyright holders, the court also ignored the insights of the U.S. Supreme Court in Google LLC vs Oracle America, Inc., (2021). In that landmark decision, the court suggested that when determining the potential market effects as part of the ‘fair use’ analysis, one would have to also weigh the public benefits of copying against potential financial losses for copyright holders.

India and CDL

Though India is yet to have a major CDL initiative, some universities such as the NLSIU have initiated major digitisation projects that can facilitate CDL in future. The outcome in the IA litigation will in turn have considerable ramifications for such initiatives, in India and elsewhere. In addition, even current lending practices in physical libraries could be threatened if other courts followed the SDNY district court’s logic, in prioritising the economic interests of just one of the stakeholders over the broader public interest.

It is high time to remind ourselves that the copyright system is not just about protecting the interests of copyright holders, but, equally, about protecting the rights of the users of copyrighted works, and thus the broader public interest.

Arul George Scaria is an associate professor at the National Law School of India University (NLSIU)

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