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Criticism over copyright issues prods NZ library to cease book donation to Internet Archive

29 November 2021

Criticism over copyright issues prods NZ library to cease book donation to Internet Archive

The New Zealand National Library decided to cease its donation of 600,000 books from its overseas published collection to Internet Archive for digitization, following a wave of criticism due to copyright issues.

The US-based Internet Archive is a digital repository of books, movies, games and music free of use. Following digitization, the 600,000 books from NZ’s national library were intended to become part of the online collection.

The New Zealand National Library announced the initiative with the archive in July 2021. At that time, the library was in the process of donating books from its collection to different groups in order to create more space for new, local titles.

Since the announcement, criticism arose from different groups including the United Kingdom Society of Authors, Publishers’ Association, Authors’ Society and Copyright Licensing New Zealand. 

Some of these groups alleged that the New Zealand National Library was liable for copyright infringement before the courts of New Zealand.

Most of the 600,000 books are now out of print and many were published between 1965 – 1969. Thus, many of them may still have copyright value.

Internet Archive had stated it will take out any book from its online repository upon the request of any copyright owner. The digital library also has the capacity to prevent users from copying the digitized materials and redistributing them via a tool called Controlled Digital Lending.

For its part, the national library said they will get in touch with the authors, copyright holders and publishers before sending the books away to determine whether they want their works to be part of the donation.

Nevertheless, Authors’ Society, Publishers’ Association and Copyright Licensing New Zealand urged the New Zealand Attorney-General and Ministry for Culture and Heritage to undertake an investigation on the legality of the agreement between the national library and the archive.

An article in reports that New Zealand Society of Authors chief executive Jenny Nagle said there was no evidence the National Library undertook adequate legal work prior to the agreement.

The same article also reports that New Zealand National Library’s Rachel Esson claimed the agreement was legally binding.

“From the information I have seen, including the National Library’s press release announcing the agreement, and reporting on statements by The Publishers Association and Society of Authors, it is not clear to me how the National Library considers the proposed copying to be lawful,” said Paul Johns, a principal at AJ Park in Auckland.

“I understand that there are to be safeguards for copyright owners such as an opt-out mechanism and take-down procedures. However, I would hope that this is in addition to, and not instead of, a reasonable effort to not infringe copyright in the first place.”

Johns added that it may be possible that the National Library believes the Copyright Act 1994 has sufficient exemptions for libraries and archives. But based on the information available, he said he does not agree with such assessment. He reasons that if the publications in question are to be exported and copied by the Internet Archive overseas, then the issue of copyright infringement would not arise under New Zealand law.

What may have further stoked the fire of discontent is the fact that Internet Archive is currently involved in a copyright infringement court case in the United States. The case involves four major book publishers, namely, HarperCollins, Penguin Random House, Wiley and Hachette Book Group.

“If such legal action illustrates that the law or current commercial practices are not suitable for the modern digital environment, then it is up to governments and industry to find new models. This has already happened in the movie and recorded music industries where previous grave concerns over illegal peer-to-peer filesharing networks have largely been removed by the adoption of legal, revenue-generating streaming services,” Johns said.

As to the copying of mass-consumption books such as popular novels, Johns said this would plainly impact on the economic interests of publishers - unlike the National Library agreement.

“New models have already emerged for the sale and ‘lending’ of eBooks. I expect copyright law to develop to protect the economic interests of those profiting from those models while preserving tradition exemptions for legitimate libraries and archives,” he said. “How the Internet Archive, and digitization in general, fit into that is yet to be seen.”

Nevertheless, Johns believes the collaboration between the National Library and Internet Archive, if it will push through, will generally be beneficial.

He explained: “Making these publications more widely available, and in digital format rather than in archive hardcopy, seems to be of net benefit to readers and libraries. Fans of real paper may lament the loss of hardcopies to a distant foreign country, but in my view, the benefits outweigh this cost. The harm and benefits to authors and other copyright owners are more difficult to assess. It is not clear what proportion of the publications remain in copyright. The claimed average publication date of 1965-1969 suggests many will remain protected. Of those, it is not clear whether there is any true ongoing commercial value in the copyright or whether any actual commercial harm will result. The making available digitally of an obscure, out-of-print title would not seem to have any material economic effect. Given the apparent opt-out and take-down systems to be put in place, my view is that this is likely to be an overall beneficial project.”

A statement from the New Zealand National Library declared it will look into the issue amid the criticism and decide on its next move. Until then, the donation of the books to Internet Archive will not take place.

Espie Angelica A. de Leon

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