In the light of the recent US copyright case revolving around the free e-lending facility of
Internet Archive, what should be the limits on ‘fair use’ of copyrighted works by students and academicians?
‘Only one thing is impossible for God: to find any sense in any copyright law on the planet’
– Mark Twain, Notebook (1902-1903)
When the US Court of Appeals of the Second Circuit shut the door on the Internet Archive (“Archive”), and the 5,00,000 titles it was distributing, Mark Twain’s satirical remark sounded almost ominous. The Court curtailed years of progress of digital libraries in providing global accessibility of otherwise inaccessible works to students, teachers, and the general public. This essay attempts to address the factors the Court missed from its consideration, and argues for an alternative conceptualisation of the goals of copyright – through ‘fair access’.
Copyright essentially has two aspects. In broad terms, society’s right to access and engage with creative works is the ‘access’ aspect, and the creator’s right to enjoy the commercial fruits of their works is the ‘protection’ aspect. In Part I, the essay submits that the controlled digital lending programme or CDL as practised by IA was fair use, and the Court in Hachette v. Internet Archive (“Internet Archive”) has mischaracterised the ‘fair use’ test by neglecting the ‘access’ aspect of copyright. This is evident in the four-factor analysis by the court – particularly in factors one and four.
Under factor one, the court has failed to notice that CDL has enhanced the ‘access’ aspect, which was not possible by physical or even ebooks released by the publisher, and that in itself was a mark of transformativeness. It also failed to consider that the ‘protection’ aspect was ensured by digital rights management (“DRM”), which imposed an owned-to-loaned ratio on users to prevent wholesale copying and distribution. Similarly, while assessing factor four, the court has misunderstood the practical realities of inequitable access to the two markets in question – the sale market for authors and their works to the end consumers and the library market for procurement
of ebooks. For authors, these realities include usurious contracts with trade publishers, selective visibility of ‘famous’ authors, and restrictions on readability. For libraries, these include inequitable relationships with trade publishers in negotiations and prohibitive procurement contracts. For these problems, it is submitted that CDL is an equitable and potentially profitable solution, advancing the interests of lesser-known authors, digital libraries, and ultimately the readers.
In Part II, the essay goes one step further and submits that the CDL principle, along with its procedural requirements, is not a mere exception but a facet of copyright law. It is submitted that an emphasis on access-focused reading of copyright is necessary to secure the goals of copyright in a post-truth society of the present times. It discusses ‘fair access’ as a necessary extension of an access-focused interpretation as it allows non-transformative educational use, promotes equitable access among researchers, and facilitates civic engagement. While doing so, it also protects creator rights and commercial interests.
THE DISCONTENTS OF INTERNET ARCHIVE: (MIS)READING THE FOUR FACTORS WITH THE
Aims of Copyright
Concerns around the operation of the Archive have focused on the adverse impact on creators’ commercial rights to their works due to the en masse scanning and distribution of literary works.1 Some have even called out its book lending system as ‘systematic theft’ and a deliberate misappropriation of the intellectual and financial investments of the authors.2 Therefore, the bone of contention in this case was the legality of ‘controlled digital lending’ or CDL, through which the Archive supplied books to the patrons. The plaintiffs focused on the fact that free e-lending of books is a violation of copyright law and does not fall within the fair use exception. To evaluate whether this is ‘fair use’ under Section 107 of the US Copyright Act or not, the Court used the
1 Staff, “Internet Archive Continues to Harm Authors”, Copyright Alliance, available at:
<https://copyrightalliance.org/trending-topics/internet-archive-harms-authors/> (last visited on November 15, 2024).
four-factor test to determine whether CDL was fair use or not. The four-factor test requires a balanced application of all four factors, viz. (i) the purpose and character of use, (ii) the nature of copyrighted work; (iii) the amount and substantiality of use; and (iv) the effect of use on potential market for, or value of work.3 This test has been used extensively in fair use jurisdictions, including India.4 In this part, we shall examine why the Court’s application of this test lacked the spirit of the ‘access’ dimension of copyright.
Factor One: Purpose and Character of Use
The generally attributed twin purposes of copyright are, firstly, public good and, secondly, incentives for producers.5 An assessment on factor one, therefore, is essentially a balancing act.6 Courts consider two sub-factors for determining the purpose and character: (i) the extent to which the secondary use is transformative; and (ii) whether secondary use is commercial. Although both questions are considered, the central question is transformativeness.7 Hence, although transformative uses of materials and library lending certainly have implications on the sales of such materials, they are still looked upon as functional requisites of a liberal society and are thus facilitated by copyright law.8
In Internet Archive, the Court held that the IA lends books ‘as it is’ and does not transform them in any sense. It further held that even if the use was considered transformative, it is functionally not different from e-books which the publishers already offer.
However, the Court’s reasoning was amiss on two counts. Transformative use in the context of digital libraries was earlier discussed by the court of Second Circuit in Authors Guild v. HathiTrust.9 In this case, the court held that functions such as full-text searches, increased accessibility for print-disabled users or blind persons via audio functions, and non-commercial
3 The United States Code, 2018, title 17, s. 107.
4 India TV Independent News Service v. Yashraj Films Pvt Ltd, AIR 2013 (NOC) 315 (DEL).
5 Fox Film Corp v. Doyal, 286 U.S. 123, 127 (1932).
6 Michelle M. Wu, “Hachette, Controlled Digital Lending, and the Consequences of Divorcing Law from Context” 42(2) Legal Reference Services Quarterly 129-151 (2023).
7 Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith, 598 U.S. 508, 526 (2023) 528.
digital preservations as transformative use. The Court also held that facilitating access to readers who are entitled to access (this includes those who are excluded by physical or temporal inaccessibilities and financial constraints), but could not access them, is a fair use consistent with the aims of the copyright law. This position was reaffirmed in Capitol Records, LLC v. ReDigi Inc,10 with the caveat that such use must not cause any unreasonable encroachment on the commercial titles of the rights holder. Thus, reading this caveat in ReDigi together with the dictum in HathiTrust, two factors are important to determine whether the work was transformative or not. It is submitted that both factors favour the Archive when read with an ‘access’ focused reading of copyright.
The first factor is that the purpose of digitisation should be transformative (the transformative purpose was increasing the efficiency of delivery in ReDigi, and increased access in HathiTrust). IA improved access for multiple groups of readers – those with a print disability, geographical inaccessibility, or any other access restrictions. It has also provided additional technical features to both authors as well as readers. For instance, authors writing online articles could directly hyperlink a particular page in a particular edition, and readers could immediately refer to the source, borrow the book if needed, and read the cited material. Moreover, it has removed the burdens associated with the physical transportation of borrowed books to the readers. These results are uniquely possible only with digital libraries and their enabling feature, which is CDL.
Another unique factor that stood the Archive’s CDL apart from the e-books by major publishers was the non-commercial character of the library. It is this character that substantiated the promise of access. e-books by the publishers, for instance, only provide temporary access at extremely high rates.11 It cannot claim to reach users with financial constraints and does not justify ‘access’ in its true sense. Therefore, access via CDL was a unique transformative feature, which the eBooks of the publishers could not have replicated.
10 934 F. Supp. 2d 640 (S.D.N.Y. 2013).
11 Anna Fazackerley, “Price Gouging from COVID: Student Ebooks Costing Upto 500% More Than In Print”, The Guardian, January 29 2021.
The second factor is that the delivery must not unreasonably encroach on the commercial entitlements of the rights-holder. The Archive has been registered as a library in California since 2006. It was run in coordination with almost 50 other libraries who endorsed CDL.12 The books with IA were either via acquisitions with the support of these partners, or donations to such libraries. IA also had a policy to upload a title only five years after its first publication. Therefore, at the procurement level, the books were acquired without affecting the ‘first-sale’ rights of the authors and publishers.
Thereafter, the Archive was lending these books through CDL. CDL’s practical effects are analogous to that of a physical library. Firstly, as discussed earlier, at the acquisition stage it is ensured that the materials are legitimately acquired via compensation to the author or gifts/donations. Secondly, at the lending stage, it allows access to works via DRM.13 This mechanism restricts digital lending in two ways – it ensures that the ‘owned to loaned ratio’ is proportionally maintained (simultaneous lending of only that number of copies which have been acquired) and if this was violated, it imposed a timed loan to prevent wholesale copying and distribution. This mechanism ensured digital access, thus fulfilling the ‘access’ aspect, while respecting the ‘first-sale’ rights of the makers, fulfilling the ‘protection’ aspect of copyright.
Thus, the technical application of CDL fulfils the copyright’s balance. If the court had construed factor one in a purposive manner – minding the access aspect of copyright, then IA’s digital lending would have stood the test of transformative use. Therefore, the hits and misses of factor one is foundational to the discussion of the optimum limit on fair use.
Factor Two: Nature of Copyrighted Work
12 Internet Archive Blogs, available at <https://blog.archive.org/> (last visited November 15, 2024).
13 Harvard Library, “A White Paper on Controlled Digital Lending of Library Books” 25 (2018).
In a fair use determination, factor two is rarely dispositive and does not play a determining role.14 Even in Internet Archive, the Court does not discuss this in much detail. It is a matter of rule that if the work is more factual than creative and previously published, then the tendency is to allow fair use.15 All the books with the Archive were in fact published titles and the collection included non-fiction, factual works such as textbooks.16 In any case, no review or inquiry was conducted by the Court into whether (or to what extent) the titles on IA are factual and not creative. This betrays a rather protectionist attitude towards the works, as it is assumed without assessment that even non-fiction works, by necessary implication, will demonstrate originality. The access paradigm would have required an empirical assessment – as notably ordered by Indian courts.17 Therefore, factor two assessment also ignores the access aspect of copyright.
Factor Three: Amount and Substantiality of Use
A determination as to what amount of copying may be fair use is dependent on the purpose of use. In Internet Archive, the court necessarily paired factor one with three and held that as the purpose was not transformative, the copying of books in their entirety was improper use. As discussed earlier, the use was adequately transformative, and therefore factor three should have favoured the Archive. Moreover, Section 107 of the US Copyright Act allows for multiple copies to be for classroom use.18 This dimension was not examined by the court; neither here, nor in factor one. This was another instance of limiting the access aspect of copyright. The Court did not consider the impact on education and research – which is arguably facing the most direct and negative impact of this decision, as we shall see in greater detail in Part II.
Factor Four: Effect of Use on Potential Market for, or Value of Work
This dispute involved stakeholders of two markets: one for book sales to customers, and another for ebook licensing to libraries. The ‘competing substitute’ test is used in this assessment to
14 Authors Guild v. Google Inc, 804 F.3d 220.
15 Blanch v. Koons, 467 F.3d 244, 256 (2d Cir. 2006).
17 The Chancellor, Masters & Scholars of University of Oxford & Others v. Rameshwari Photocopy Services, 2016 SCC OnLine Del 6229.
18 The United States Code, 2018, title 17, s. 107 (a).
determine whether the secondary work would usurp the market of the first work or not.19 The Court must also balance the benefit the public will derive if the use is permitted and the personal gain the copyright owner will receive if the use is denied while assessing this factor.20 In Internet Archive, the plaintiffs had argued that the ebook market has been disturbed due to digital libraries such as IA, which provide ditto copies of otherwise purchasable ebooks for free. The Court accepted this argument, saying that such distribution would harm the commercial interests of copyright holders and motivation of authors in the long term, and may decimate the publisher’s market across formats. It is submitted that this conclusion fails to consider the realities of both markets. Based on market realities of access to works, this part presents challenges to this conclusion by the court.
The sales market and customers
In Internet Archive, the plaintiffs are well-known publishers supported by well-known authors in the industry. The force of their case hinged on the portrayal of the adverse effects of CDL on the authors. However, the relationship of such ‘trade publishers’ with their authors tells a different story.
Firstly, it is submitted that the gains of profits from published works are largely restricted to such publishers, and rarely trickle down to lesser-known authors. This is because of the following system. There is a ceiling that is fixed when the author receives an advance from a trade publisher. Only when this ceiling is reached by sale, does the author start accruing royalties on a per-copy basis. However, only 70% of published authors are generally able to reach this ceiling, and therefore, the advance amount remains the only payment for their works.21 This, along with publisher’s constraints such as hardcover printing, limited prints, high prices, etc. seriously restrict the readership of the authors.22
19 Andy Warhol Foundation for Visual Arts, Inc. v. Goldsmith, 11 F.4th 26, 36 (2d Cir. 2021).
21 Jane Friedman, “The Book P&L: How Publishers Make Decisions About What to Publish”, Jane Friedman Blog, September 1, 2024, <https://www.janefriedman.com/book-pl/> (last visited on November 15, 2024).
Secondly, the motivations of certain groups of authors are not necessarily commercial. While those motivated by profit acquire the largest pie in the market share, and hence articulate concerns prominently, authors who seek to amplify minority voices, advance social causes, expose ideas to a larger audience, gain academic tenure, etc. are sidelined.
For the above two groups of authors, it is crucial that their works are widely read, and access is at least as important as profitability for them. It is the digital libraries, such as the Archive, which enhance access and readability of their works. There is evidence to suggest that user engagement of books through the CDL medium prompts the readers to buy titles by those authors or in those genres or areas of research.23 Studies also suggest that the increased global visibility due to CDL practices has spurted the profits of authors.24 This, in a way, ensures that lesser-known authors are heard and read. This assessment shows that the protective ‘interests’ argued against CDL are not representative of the entire market but only a clique of highly profitable publishing houses and authors that view the increased access guaranteed by CDL as problematic for their interests.
The ebook market and libraries
Firstly, the Court should have noted that the ebook market is unfairly tilted in favour of big publishers. Due to the monopolistic control over access, preservation, and research, the market is unfairly titled towards big publishers. At least three out of the four plaintiffs in this case have substantially controlled the e-book market to drive up the public access cost of such books.25 This is evident from the ongoing litigation which is spearheaded by academicians against the cartel-like practices of big publishing companies. The plaintiffs in this case claim that the publishers have entered into unlawful agreements in restraint of trade, violating the US Sherman Antitrust Act.26
23 Pew Research Center, “Libraries, Patrons and e-books” (2012).
24 Andrew Albanese, “Survey Says Library Users Are Your Best Customers” Publishers Weekly, October 28, 2011.
25 United States Department of Justice, “Justice Department Reaches Settlement with Three of the Largest Book Publishers and Continues to Litigate Against Apple Inc. and Two Other Publishers to Restore Price Competition and Reduce Ebook Prices” (2012).
26 Uddin v. Elsevier, B.V., 1:24-cv-06409, (E.D.N.Y, 2024).
Secondly, the costs of acquiring ebooks can be unreasonably high and prohibitive. When a library manages to acquire eBooks, it can cost three to ten times the consumer price for the same eBook.27 At times, ebook publishers categorically exclude libraries or put severe restrictions on user access.28 What exacerbates the costs further is the scheme of access for such books by libraries. Trade publishers impose an annual or a use licence agreement, which imposes a recurrent cost on a particular book. a library under such an agreement will have to pay multiple times to retain the same title and hence will be able to acquire fewer books in the future. Libraries will have to make acquisitions based primarily on monetary considerations: which books would the mass readers prefer, and hence which previously owned books could be discontinued? Or which new books could be acquired that may give returns on procurement investments? etc. Factors such as diversity of scholarship, introducing new perspectives, increasing collections, etc. would necessarily go on a backfoot. Therefore, it is difficult to find any semblance of balance in the market, with the libraries possessing little to no bargaining power against the consolidated publishing industry.
Considering the practical access aspects of both markets, the fear of decimation noticed by the Court is not representative of the impact of CDL on the market. Far from it. The trends fit right into the fear expressed in Authors Guild, Inc. v. Google, Inc., where the Court of Second Circuit recognised that ‘in certain circumstances, giving authors absolute control over all copying from their works would tend in some circumstances to limit, rather than expand, public knowledge’.29
The case for an expansive four-factor test essentially flows from the idea of copyright as an ‘access’ right. This also justifies the inclusion of diverse perspectives on transformativeness and market impact in the assessment of factor one and factor four. In this Part, we go a step further and evaluate the claim of an ‘access’ right above and beyond the four walls of fair use. But before this
27 Publishers Price Watch, available at <https://www.readersfirst.org/publisher-price-watch> (last visited on November 15th, 2024).
28 David Moore, “Publishing Giants Are Fighting Libraries on E-Books, Shawnda Hines”, Sludge, March 17th 2022, available at <https://readsludge.com/2022/03/17/publishing-giants-are-fighting-libraries-on-e-books/> (last visited on November 15th, 2024).
29 Authors Guild v. Google, 804 F.3d 202, 211-112 (2d Cir. 2015).
is explored, it is important to ask – why are we focusing on the ‘access’ aspect of copyright, when the commercial protection of the work must also be given equal credence under copyright?
It is certainly not contested that the guarantee of commercial protection of works for the creator is an important facet of copyright. However, the ‘protection’ aspect already finds adequate protection in the market. Trends in copyright litigation in the US, India, and EU jurisdictions such as Germany and France support this position. Fair use, in these jurisdictions, has largely been used as a mechanism to the benefit of corporate publishing houses and famous artists.30 The claim discussed in the first half of this essay is also a case in point.
Moreover, on a societal level, sociologists have noted that we live in a post-truth world today, and rightly so.31 Misinformation is the fuel of populist political ideologies that influence our choices as a civil society.32 In the 19th century fight against fascism, when the world was, open access libraries were considered instrumental in mobilising public opinion against fascist regimes. Thus, even in present times, at least for truth-minded citizens, ready access to sources can have an implicit social value and serve an important social function.33 It is this aspect of copyright, therefore, which needs more robust doctrinal protection, at least in liberal constitutional democracies with rich traditions of freedom of speech. It is in this combined context, then, that the ‘access’ aspect of copyright gains prominence.
The Internet Archive court seems to have skirted any discussion on this question. The Court did concede that made non-profit educational use of the works, but it held that this was not enough
30 J.C. Ginsburg, “How Copyright Got a Bad Name for Itself”, 26(1) Columbia Journal of Law & the Arts 61 (2002); European Union Intellectual Property Office, “Europeans Citizens and Intellectual Property: Perception, Awareness and Behaviour” 66 (2017).
31 Simon Blackburn, “On Truth” 5 (OUP, 2018).
33 Christophe Geiger, “Copyright As An Access Right, Securing Cultural Participation Through the Protection of Creators’ Interest”, in R. Giblin and K. Weatherall (eds.), What if We Could Reimagine Copyright? 73-109 (ANU Press, 2017).
ground to qualify as fair use. It is submitted that the first step towards fair access would be a change in this. The majority of educational uses are not likely to be transformative – for instance, copies provided to students in a classroom. This argument has traction in the US as well as India.
Section 107 of the US Copyright Act provides for fair use of copyrighted materials for ‘teaching (including multiple copies), scholarship, or research.’34 The Second Circuit has also held that although making excerpts of books available online is not transformative, it still favoured fair use as if it is for a non-profit educational purpose.35 In this case, the court also held that promoting learning and educational access is promoting copyright itself.36 In a similar vein, even the Archive library was used by university instructors to give students access to books that were locally unavailable for use in research projects.37 However, this factor was not adequately addressed in the decision.
In India, Section 52 (1) (i) of the Copyright Act, 1957 provides that the ‘reproduction of any work…by a teacher or a pupil in the course of instruction…’ does not constitute copyright infringement. Oxford v. Rameshwari,38 popularly known as the DU photocopy case, is a cardinal win for Indian jurisprudence in this regard. In this case, the Court also ordered an extensive inquiry into empirical data from the publishers.39 Similarly, a fair access limit will consider educational non-transformative use as fair use, or at least consider an empirical assessment of the works in question to determine their educational value.
An opportunity for equal participation in copyright is consistent with the Constitutional guarantee of free expression.40 The prohibitions imposed on Internet Archive violate this principle and create
35 Cambridge University Press v. Patton, 769 F.3d 1263.
38 The Chancellor, Masters & Scholars of University of Oxford & Others v. Rameshwari Photocopy Services, 2016 SCC OnLine Del 6229.
40 Ross Broudy, “Copyright and Social Justice Event Highlights Importance of Equal Access to the Benefits of Copyright”, Copyright Alliance, January 28, 2020.
differential access. While the most affected segment of authors and users from the lesser developed countries, or those without access to libraries due to physical, geographical, or financial reasons, are prohibited from accessing knowledge, successful authors and institutional researchers in the West will have an easier path to access. The case is the same for students as well. For instance, take an international moot court competition on international space laws. CDL and digital libraries may have allowed an Indian student to access a treatise written by a European scholar (a region where space law jurisprudence is well-developed) stacked in a European library. However, that student will not be able to access that book anymore. On the contrary, a European student affiliated to the university where the treatise is stored or published will have an unfairly better chance of access. While this divide can never be completely ruled out, the Archive had ensured equitable access to almost 5,00,000 titles via CDL. Now, we may not even have that. This effect should be tolerated in a fair use jurisdiction, as it fundamentally opposes the ‘access’ aspect of copyright. A fair access limit will thus consider the effect of restriction on the social accessibility of copyright.
The value of a particular expression is not in a bookstore but lies in the consumer reading it. A republished form of work indicates expanded access, as opposed to the original, which is much more difficult to locate and acquire.41 It is an incontestable fact that libraries promote civic engagement. CDL goes one step further and breaks restrictive temporal boundaries and encourages civic engagement on a global level. It democratises knowledge by literally putting information in the hands of citizens.42 It provides a universal library – where linguistic, geographical, and ableist differences do not matter. For a diverse society like India, these considerations hold more weight. This enlarged scope for access to information, and equality of access ensured by CDL reaffirms its position as an evolving institution enhancing democracy, consistent with the ‘access’ aspect of
41 Rebecca Tushnet, “Copy This Essay: How Fair Use Doctrine is Harming Free Speech and How Copying Serves It” 114 Yale Law Journal 535-590 (2004).
42 Eugene Volokh, “Freedom of Speech and Intellectual Property: Some Thoughts After Eldred, 44 Liquormart, and Bartnicki” 40 Houston Law Review 697, 702, 703-10 (2003); David Owen, “Power to the People: The Photocopier”
L.A. TIMES, Aug. 10, 2004.
copyright.43 This is the larger context in which the fair access limit will proceed while deciding on fair use.
Balance with the ‘Protection’ Aspect
Fair access is not free access. As discussed earlier, the protection of the creators' commercial interest is an equally important factor of access. The fair access paradigm is therefore a double- sided coin – while it is true that access must be fair for society, it must also not be unfair to the creators. Here, the DRM technology acts as an equitable restriction. As discussed while assessing factor one, this mechanism would ensure a proportional ‘owned-to-loaned ratio’ and impose a timed loan in case of violation. It may also include techniques such as watermarking or digital signatures to protect creator interests in CDL format. Such technologies will ensure that the creator’s rights are not trampled by wholesale copying or unrestricted free access.
For teachers and students of law, dense legal commentaries are almost indispensable for applying, interpreting, and learning the law. However, unless they have access to a university or a court library, it is not so easy to acquire them due to their prohibitive costs.44 Similarly, any research on international or foreign laws requires access to international online sources and eBooks which can be inordinately expensive.45 The problem of access is not endemic to the legal community, and other disciplines which are dependent on works which are locally unavailable are equally plagued by it. How can such groups access works as easily as the more fortunate others?
The answer was CDL. Digital libraries practising CDL had become crucial for percolation of equitable knowledge in society. However, in Internet Archive, by overlooking the import of this ‘access’ aspect of copyright, the Court has essentially overlooked the reality of our society, where
43 Harvard Law School Cyber Law Clinic, “Clinic Works w/ Amici Kenneth Crews and Kevin Smith to Support Internet Archive’s Controlled Digital Lending Efforts” (2022).
44 Jeff Finegold & Christine Dooley, “Why Are Law Books So Expensive – Based on an Interview with David Evans, Managing Director of Sweet & Maxwell” 3 Poly Law Review 29 (1978).
45 Jootaek Lee, “Gatekeepers of Legal Information: Evaluating and Integrating Free Internet Legal Resources into the Classroom” 17 Barry Law Review 165 (2012).
corporate publishers control the flow of information almost exclusively. This will lead to an unfair impact on non-institutional researchers, students, and upcoming authors from the developing world
– where access is more of a derivative of privilege, than a function of social needs. It is therefore imminent that ‘fair access’ as a dimension of copyright, should be given immediate consideration by courts and scholars of copyright law. If this patent inequality is allowed by the guardians of copyright, as Mark Twain mockingly remarks, even God will not be able to make sense of copyright law.