In controlled digital lending, the issue of public interest

ARTICLE HIGHLIGHTS

• The legal tussle in the United States between four major publishers and the Internet Archive (IA)(not-for-profit organization) trying to build a globally accessible digital library.

INSIGHTS ON THE ISSUE

Context

What has IA done?

• The IA has archived more than 735 billion web pages, 41 million books and texts, 14.7(fourteen point seven)million audio recordings etc
• IA has become a truly global digital library to access information, particularly for persons with disabilities.
• Copying issues: A substantial portion of the books digitized by IA are outside copyright protection and are accessible without restrictions.

Stand of publishers:

• Publishers have alleged that around 6(three point six) million books, which have also been available to borrow under some conditions, are actually copyrighted.
• Issues with ‘National Emergency Library’ that the IA set up at the peak of the COVID-19 pandemic
  • IA relaxed the conditions for lending.
• The publishers argue: that the IA thus violated the diverse rights provided under copyright law for 127 titles published by them.
• IA stand: The IA rebutted 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.

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.
• IA avails one digital copy of each non-circulating print book it has stored.
• 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 AIIMS, Indian Institute of Science and 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.

CDL and the public interest benefits:

• Lending physical copies of books from libraries, including at India’s leading universities in India, has been on the decline.
• The CDL is a positive response to this trend; It helps bridge the gap between urban and rural, and the privileged and unprivileged, readers vis-à-vis access to books.
  • It allows even people in the remotest villages to access books from libraries that are far away.
• 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.
• CDL invokes enormous public benefits for education, research, and cultural participation.

Court’s stand:

• It 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.

Issues with court’s stand:

• Public benefits highlighted by the IA “cannot outweigh the market harm to the publishers”.
• The court overlooked some of the evidence the IA produced with regard to the works in the suit.
  • It 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.
• The court ignored the U.S. Supreme Court in Google LLC vs Oracle America, Inc., (2021). Which 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.

Way Forward

• 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.
• The current lending practices in physical libraries could be threatened if other courts followed the SDNY district court’s logic, in prioritizing the economic interests of just one of the stakeholders over the broader public interest.
• 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.

QUESTION FOR PRACTICE

The Right of Children to Free and Compulsory Education Act, 2009 remains inadequate in promoting incentive-based systems for children’s education without generating awareness about the importance of schooling. Analyse.(UPSC 2022) (200 WORDS, 10 MARKS)

Source: The Hindu

• Prelims: Current events of national importance, CSR, Digital lending, Internet Archive (IA), high net worth (HNI) tax, 5G etc
• Mains GS Paper II and III: Development process and the development industry-the role of NGOs,SHGs etc