The Society of Authors has demanded the Internet Archive’s Open Library stops lending books “unlawfully” online in the UK, arguing the US practice of Controlled Digital Lending is a breach of copyright.
In an open letter, the trade body urged the San Francisco-based Internet Archive to immediately discontinue the practice of lending scanned copies of physical books on its site. “There is no legal basis for the practice of scanning books without permission or lending them in the UK,” said the SOA. “Despite this, users in the UK are currently able to borrow scanned copies of physical books from Open Library. That is a direct and actionable infringement of copyright.”
The SoA, which represents 10,500 writers, has condemned the practice, saying: “If widely adopted this form of ‘lending’ could destroy the e-book market and make it even harder for authors to make a living from their work.”
The practice, dubbed Controlled Digital Lending, has sparked concern in the US with the Authors Guild petitioning against “recently invented legal theory” CDL, as reported in Publishers Weekly.
According to the Authors Guild, CDL “allows libraries to justify the scanning (or obtaining of scans) of print books and e-lending those digital copies to users without obtaining authorisation from the copyright owners.”
Legal scholars issued a position statement and white paper on the practice in October arguing CDL “is an emerging method that allows libraries to loan print books to digital patrons in a ‘lend like print’ fashion…When CDL is appropriately tailored to reflect print book market conditions and controls are properly implemented, CDL may be permissible under existing copyright law. CDL is not intended to act as a substitute for existing electronic licensing services offered by publishers.”
The SoA’s letter said: “We are aware that Open Library justifies the copying and distribution of these books in the USA on the basis of the “Position Statement on Controlled Digital Lending”, authored by a number of US legal scholars. The Statement argues that Controlled Digital Lending is legal under US fair use doctrine, an opinion that cannot be sustained following the recent decision in the ReDigi case.”
A recent US appeals court decision found ReDigi - a commercial service enabling the resale of iTunes files - was unlawful, because the programme relied on the creation of unauthorised copies, raising questions for CDL.
Open Library, which launched in 2006, is a project of the non-profit digital library Internet Archive, which was founded by American internet entrepreneur Brewster Kahle in May 1996 to “offer free universal access to books, movies and music as well as 345 billion archived web pages.”
The Bookseller has contacted the Internet Archive for comment.
The open letter in full:
The Society of Authors is the UK’s trade union representing over 10,500 authors. We are writing to demand that you cease making available to UK users the unauthorised lending of scanned books on Internet Archive’s Open Library site.
We are aware that Open Library justifies the copying and distribution of these books in the USA on the basis of the “Position Statement on Controlled Digital Lending”, authored by a number of US legal scholars. The Statement argues that Controlled Digital Lending is legal under US fair use doctrine, an opinion that cannot be sustained following the recent decision in the ReDigi case. We therefore support the Authors’ Guild's open letter and urge you to stop unlawfully scanning and offering books for lending without authorisation.
In addition, whatever arguments you choose to put forward in the US, you must be aware that the US fair use doctrine does not apply in the UK where all scanning and lending must be authorised by the copyright owner. There is no legal basis for the practice of scanning books without permission or lending them in the UK. Despite this, users in the UK are currently able to borrow scanned copies of physical books from Open Library. That is a direct and actionable infringement of copyright.
The Internet Archive claims that Open Library is “honouring the rights of creators”. However the practice of Controlled Digital Lending does nothing of the sort. Authors are not asked for permission before their work appears on Open Library, and they do not receive any royalties. Authors’ earnings are in decline and many are struggling financially. A survey carried out by the Authors’ Licensing and Collecting Society (ALCS) in 2018 found that an author in the UK earned an average of just £10,500 from their writing per annum. The form of ‘lending’ that takes place on Open Library has the potential to destroy the e-book market and make it even harder for authors to make a living from their work. It also competes with borrowings from bona fide UK libraries.
We are calling on you to cease this practice which infringes the copyright of writers and is unquestionably unlawful in the UK. We look forward to hearing from you by 1 February confirming that you will immediately take measures to ensure that Open Library books are not made available for downloading in the UK. We also demand that you stop scanning books by UK authors without permission. If we do not receive assurances by that date we will have to consider legal action on behalf of our members to prevent this practice. If that becomes necessary we shall be seeking damages for copyright infringement and payment of all legal costs.