INTRODUCTION
In the present era, Internet and Digital world has a significant importance in accessing knowledge and information. The role of libraries and digital libraries in sharing knowledge is indispensable. The case (Hachette Book Group inc. V. Internet Archive)[1]which got decided on March 24 2023, revolves around digital lending of books and the concept of controlled digital lending. The core principles in copyright law can address the issues of digital lending. The court in this case majorly analysed the four factors of fair use in copyright law. This case was a major win for the publishers who want copyright protection for their digital versions of books.
The article analyses the fair use doctrine applied by court in this case.Also the concept of transformativeness and Controlled Digital Lending (CDL) and its application by the court is being analysed. As the aforesaid case is in the jurisdiction of United States, the hypothetical application of the same facts under Indian Context is also discussed.
Parties to the case:
Plaintiff: HACHETTE BOOK GROUP INC.
Defendant: INTERNET ARCHIVE
Judge: JOHN G.KOELTL, District Judge
Decided on: March 24 2023
FACTS OF THE CASE
The plaintiffs in this case are four of the leading book publishers in US. They are Hachette Book Group Inc., Harper Collins Publishers LLC, John Wiley & Sons.Inc and Penguin Random House LLC. The exclusive rights to print and publish books in print as well as digital form are obtained by them from the authors. Copies of the e-books (digital format) are licensed to libraries and are distributed through aggregators who make use of Digital Rights Management System to ensure that unauthorised copying and distribution of these books are not being done. To make the lending profitable, publishers use different licensing models. Amongst of that, Hachette use a one copy-one user license for a period upto two years to public libraries during which there is no limit on the number of times an e-book can be read and after which a library must purchase a new license.
The defendant in this case, Internet Archive, a non-profit organization collaborates with libraries, universities and the public to provide free online access to books, texts, audio, movies etc.. as their goal is to provide ‘Universal access to all knowledge’. For this the defendants digitally scan the entire print books after acquiring them and distribute the scanned copies after keeping the print forms in their storage. Along with the e-books in the public domain, it also includes 3.6 million books protected by valid copyrightsincluding 127 works under consideration in this suit. IA does this without any authorisation from publishers to distribute their work through its website. Instead of making it available for mass download, what IA does is Controlled Digital Lending in which one-to-one “owned to loaned ratio” is followed. IA also allows two other features where a “High Quality” encrypted PDF or e-Pub version of the e-book can be downloaded and also a “Read Aloud” feature that converts the text to audio and plays it aloud. IA ensures that accessing of the books are not being carried out after the loan period.
Due to the outbreak of Covid-19 pandemic, 650 million print books went out of circulation which lead to scarcity of books to public. To address this problem, IA launched ‘National Emergency Library’ through which it lifted the technical controls enforcing the CDL and thereby allowed upto ten thousand patrons to read a book at the same time. This caused the publishers to file an action against IA alleging that copyright in 127 of the works in suit are infringed. IA answered the Complaint, principally asserting a defense of “fair use” with respect to its lending of the Works in Suit through IA’s online library generally and during the NEL specifically. Court analysed whether the act of IA amounts to fair use and decided accordingly.
The major issues that needs to be discussed are whether transformative use is protected under Fair Use Doctrine under United States Copyright Law and also to what exactly is Controlled Digital Lending and Can it be considered and protected under Fair Use Doctrine under United States Copyright Law. Application of both these issues under Indian Context also needs to be analysed.
[1]542 F.SUPP. 1156 (2023)