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Is copyright looting justified? Rakuten Kobo Inc., a Canadian company that sells e-books, audiobooks, e-readers, and tablet computers, has signed up 2 million new users during the past three months, illustrating the rise in e-book adoption. The global coronavirus pandemic and the necessary home quarantines have made individuals dependent upon e-commerce platforms to purchase essential items.  Students are reliant on digital classroom materials as schools and universities implement virtual learning models. Libraries have closed their doors but have expanded access to their digital resources including e-books.  Book sales have surged as readers seek escapism, and the ease and immediacy in which digital books can be purchased and downloaded have made e-books a popular choice nowadays.

On March 24, 2020, to offset the inability to visit brick and mortar bookstores, and public and college libraries, the Internet Archive (IA), a non-profit online library of digital books, music, films, and other content, launched the National Emergency Library.  The emergency library is designed to assist “displaced learners” including university students and individuals who cannot physically access their local libraries due to closure, to continue to read and learn during COVID-19. This had to an outflow of copyright looting.

This program appears to be a valuable solution to increased demand for digital materials created by the coronavirus, however, not everyone supports this endeavor. The Authors Guild stated, “the IA has no right whatsoever to these books, much less to give them away indiscriminately without the consent of the publisher or author.”

The Copyright Alliance has also criticized the emergency library, noting that while projects have been set up to help those in the creative industry including authors and artists, IA’s project makes things much worse for a population that is among the hardest hit at present.  Copyright Alliance CEO Keith Kupferschmid said, “The coronavirus has given authors enough to deal with – let’s not add copyright looting to the list of challenges.”

The legal framework for lending physical books is different than that of e-books.  Under current law, a library may generally lend a physical copy of a book in any manner it chooses but may only lend an e-book in the manner approved by the copyright holder, also known as the publisher.  The publisher may limit the length of time the library may lend the book, the number of times the e-book may be checked out, or both.  These restrictions affect the ability of a library to appropriately meet patrons’ current demands.

Before March 24, the IA allowed readers to borrow books for only two weeks and disabled access unless it was checked out again.  The Internet Archive also implemented the technical protections that publishers use on their e-book offerings to prevent additional copies from being made or redistributed.  If all scans of physical books owned by the IA were checked out, users would have to join a waitlist.  However, the IA suspended waitlists for over 1.4 million books in their library.  The Copyright Alliance claims this is a scheme at denying authors their copyright protection and subsequent payments.  

 

While copyright gives its owner the exclusive right to take or authorize certain actions involving the work, it does not allow the copyright owner to control how others, after purchasing a lawfully made copy of the work, distribute that copy. According to 17 U.S.C. § 109, the “first sale doctrine,” the owner of a lawfully made copy may sell or otherwise dispose of the possession of that copy without the authority of the copyright owner.  This protects libraries from infringement liability for lending physical books.

E-books are governed differently because a user typically does not own an e-book, but instead receives a limited license to use the e-book.  The payment to access an e-book does not transfer ownership, therefore, the first sale doctrine does not apply.

The legality of unrestricted digital lending is one of many copyright issues impacted by the coronavirus pandemic, and the professionals at Ference & Associates are positioned to help you with your immediate copyright needs and concerns. Quality legal guidance is crucial during these uncertain times and is available by calling us at 412.741.8100.