Over 735 trillion web pages, 41 million books and texts, 14.7 million audio recordings, 8.4 million videos, 4.4 million images, and 890,000 software programmes have been archived by the IA. The IA has quickly developed into a genuinely worldwide digital library for information access, especially for people with impairments. A substantial number of the books that IA digitised are not covered by copyright laws and are freely available.
Some 3.6 million books, which have also been loanable under certain restrictions, according to publishers, are allegedly copyrighted. They were especially offended by the “National Emergency Library” the IA established during the height of the COVID-19 epidemic, where the IA loosened the lending requirements.
The publishers have said that the IA broke 127 different copyright laws as a result, according to their claims. In response, the IA argued that because books with copyright protection are only lent under strict supervision through “Controlled Digital Lending” (CDL), they should be classified as “fair use” under US copyright law.
With the IA’s Controlled Digital Lending model, one copy can be owned and lent out to one individual at a time, similar to how lending works in actual libraries. Each non-circulating print book that the IA has saved is therefore made available in one digital copy.
Also, regardless of how many physical copies of that book a library participating in the IA’s digitisation initiative owns, only one additional copy per library is counted for the purposes of digital lending. The CDL model would make sure that readers could only borrow a maximum of three copies of a book at a time, for instance, if the libraries of the All India Institute of Medical Sciences, the Indian Institute of Science, and the National Law School of India University (NLSIU) were partners in the IA’s digitisation project and each of these institutions had six physical copies of a specific book on health law.However, the district court for the Southern District of New York (SDNY) has decided in the motions for summary judgements that the IA’s activities violated various rights vested in publishers under copyright law and that the activities do not constitute “fair use” under the same law, a decision that could have significant ramifications for the future of CDL.
Speaking with librarians revealed a reduction in the renting of physical books from libraries, particularly those at India’s top colleges. Yet this only indicates that people’s reading preferences are shifting, not that there is a declining need for books. It’s possible that the pandemic’s peak library closures just sped up this transformation. Nowadays, a lot of individuals choose reading books on their smartphones and tablets.
The CDL is a constructive answer to this trend since it enables readers in even the most isolated areas to obtain books from distant libraries, thereby bridging the access gap between urban and rural, as well as the privileged and unprivileged, readers. Also, it is clear that CDL activities make it easier to access numerous works that may no longer be in print or may not be accessible in many physical libraries.
The CDL unleashes significant public benefits for learning, research, and cultural involvement by making books available to readers. The court found, however, that the “market loss to the publishers cannot outweigh the public benefits identified by the IA.” In this regard, the court disregarded part of the IA-produced material pertaining to the works at issue, which showed that sales of print and digital copies of these works from the publisher’s chosen outlets were unaffected even when the IA was engaged in CDL.
The court also disregarded the judgement rendered by the U.S. Supreme Court in Google LLC v. Oracle America, Inc. when weighing the public good against prospective financial damages for copyright holders (2021). In that important judgement, the court implied that one would have to evaluate the public benefits of copying against potential financial losses for copyright holders when calculating the prospective market effects as part of the “fair use” examination.
Although while India doesn’t currently have a significant CDL strategy, several universities, including the NLSIU, have started significant digitization initiatives that might support CDL in the future. The decision of the IA case will also have a significant impact on other similar projects, both in India and abroad. In addition, if additional courts adopted the approach of the SDNY district court, which prioritised the financial interests of only one stakeholder over the larger public interest, even the existing lending procedures in physical libraries may be endangered.
It is past time to be reminded that the purpose of the copyright system is to safeguard the rights of users of works protected by the copyright system as well as the interests of copyright holders as a whole.