Knowledge & News

Wayback to the Future 2

28 July 2020

In our previous article, we discussed the recent copyright infringement claim filed against the Internet Archive by four commercial publishers in the US in relation to the Archive’s ‘National Emergency Library’. This article considers whether similar actions may follow in the UK, and wider complications.

At the time of writing, no legal proceedings have been issued in the UK against the Archive in relation to the National Emergency Library. However, even before the Internet Archive began removing restrictions on downloading digital copies of books in March 2020, it had already been put on notice by the UK’s Society of Authors (SoA) that the Society is unhappy about the Archive’s practice of lending scanned copies of physical books in the UK. The SOA issued an open letter to the Internet Archive in January 2019, stating that the US’s ‘fair use’ doctrine did not apply in the UK and that legal action could follow if the Archive did not stop scanning books by UK authors without permission.

The UK’s ‘fair dealing’ system is more restrictive than the US’s ‘fair use’ doctrine and provides an exhaustive list of ‘fair dealing’ situations in which use of copyright material will be permitted; specifically, where such use is for the purposes of: research or private study; criticism or review; reporting current events; quotation; or parody, caricature or pastiche. There is no statutory definition of the term ‘fair dealing’ – what is considered to be fair dealing will differ in each case, depending on factors such as whether it was reasonable and necessary to use the amount of the copyright work taken, and the extent to which the use has negatively impacted the copyright owner. It is questionable whether the Internet Archive’s use of copyright material would fall within the list of situations where use is permitted, and the scale of use alone means the Internet Archive may have difficulty establishing fair dealing.

In addition to ‘fair dealing’, UK copyright law also provides for a number of exceptions that allow limited use of copyright works without the permission of the copyright holder. One such exception is for public libraries operating within the UK’s public lending right (PLR) scheme. Under the PLR scheme, the government provides modest payments to authors, illustrators and other contributors each time their books, e-books or e-audiobooks are borrowed from UK public libraries. The scheme is designed to compensate contributors for the loss of royalties from sales of their works, while allowing public access to knowledge. However, the Internet Archive does not currently operate within the PLR scheme.

There is also an exception for libraries or archives (other than public libraries) which are not conducted for profit. Although the Internet Archive is stated to be non-profit organisation (which is called into question in the US claim), the act permitted by the not-for-profit exception only covers the lending of copies of copyright works by a library or archive. As the Internet Archive removed the DRM tools that it previously used to replicate some of the limitations of an ordinary library, such as allowing access to one user at a time, it may have difficulty arguing that it is acting as a library or archive.

The Archive’s legal position is further complicated by the fact that users access it from around the world, meaning that the Archive is potentially opening itself up to claims in multiple countries. To avoid complaint, some digital archives seek licensing from collective rights management organisations (CMOs). CMOs represent groups of copyright owners, license prospective users, monitor the use of the copyright works, and then collect and distribute royalties, ensuring a fair distribution amongst the copyright owners. Other repositories, such as Project Gutenberg, only upload older works for which the term of copyright has expired and therefore the works have passed into the public domain (note that copyright subsists for different terms in different jurisdictions). As the Archive clearly wishes to offer access to works that are still protected by copyright, opening discussions with CMOs may be a solution that the Archive should consider.

Whatever the outcome, readers, authors, publishers and users will be watching with interest to see how the US claim plays out and whether the Archive and its Wayback Machine can survive into the future.

Authors

Rebecca Campbell

Rebecca Campbell Associate London (UK) Glasgow (UK) Chartered (UK) and European Trade Mark Attorney

Claire Chalmers

Claire Chalmers Associate London (UK) Solicitor (UK) (Registered with the SRA as Louise Chalmers Clare)

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