9th July 2020

Major publishing houses including HarperCollins and Penguin are suing the non-profit Internet Archive for its National Emergency Library, set up to provide access to books during the COVID-19 shutdown. The Authors Guild has supported the publishers’ copyright action.

  • The non-profit Internet Archive set up the temporary National Emergency Library during shutdown to give access to books for researchers and students
  • Major publishers, supported by the Authors Guild are now suing Internet Archive for copyright infringements
  • This dispute is a test case for copyright law’s role during a pandemic
  • International support for Internet Archive and its emergency library

The Internet Archive has countered that the complaint attacks the ‘concept of any library owning and lending digital books, challenging what a library is in the digital world’.

“The dispute provides a unique test case for the role of copyright law during a public health pandemic’,” says QUT Intellectual Property Professor Matthew Rimmer from QUT Faculty of Law.

Professor Rimmer said the National Emergency Library was intended to provide a public service with a temporary collection of books to support remote teaching, research activities etc while universities, schools and libraries were closed.

“The publishers allege that the Internet Archive is engaged in ‘wilful mass copyright infringements … without any licence or payment to authors or publishers’,” Professor Rimmer said.

“The legal case will no doubt raise issues about library exceptions under copyright law and rules about lending.

“Internet Archive founder Brewster Kahle maintains: ‘as a library, the Internet Archive acquires books and lends them, as libraries have always done’ and ‘publishers suing libraries for lending books, in this case protected digitized versions, while schools and libraries are closed, is not in anyone’s interest’.”

Professor Rimmer said the conflict between publishers and the Internet Archive would raise larger questions about the defence of fair use under copyright law in the United States.

The fair use precedent of the long-running Google Books litigation will have a bearing on the case but the dispute raises some new questions in intellectual property law.

“In response to the lawsuit, the Internet Archive said that the National Emergency Library would close early. Nonetheless, the concern is that this lawsuit could bankrupt the non-profit Internet Archive library which plays an important part in documenting and archiving the world wide web,” he said.

“A number of its services like the Wayback Machine are invaluable and indispensable in tracing the history and the present of the Internet.”

Professor Rimmer said there was a need to think about the role of intellectual property during public health emergencies.

He said support and commentary for expanded copyright flexibilities during COVID-19 had come from:

  • US library copyright specialists who made a public statement on fair use and emergency remote teaching and research
  • Harvard University librarian and lawyer Kyle Courtney has argued that libraries do not need permission to lend books
  • Canadian law academics Professor Sam Trosow and Lisa Macklem have opened a discussion about copyright law and fair dealing in a pandemic
  • In the UK, Dr Emily Hudson and Dr Paul Wragg proposed copyright law and education during the COVID-19 pandemic
  • In the EU, Communia has said that ‘exceptions and limitations to copyright should support education, research and other public interest activities that need to take place remotely during emergencies that fundamentally disrupt the normal organization of society.

Professor Rimmer said the controversy should spur the revisiting of copyright law reform recommendations of the Australian Law Reform Commission and the Productivity Commission.

QUT Media contacts: Niki Widdowson, 07 3138 2999 or n.widdowson@qut.edu.au.

After hours: Rose Trapnell, 0407 585 901 or media@qut.edu.au.

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