At first blush, one would think that a natural symbiotic link would exist between authors, publishers, librarians and readers. After all they are all part of what I could call the literature ecosystem, the chain of content that leads from the creation of a work to its dissemination to its consumption, either for entertainment or learning. Librarians love books, so why wouldn’t they love the creators of books? But it’s not all that unusual to find authors and publishers on one side of an issue and the librarians on the other, as is currently happening in New Zealand. In this case, it involves an ill-conceived plan announced by the National Library of New Zealand to donate some 600,000 works it no longer wants to the Internet Archive (IA) in San Francisco for digitization as part of the Archive’s “Open Library”.
Another author-publisher/librarian split famously happened last year in the US when the Internet Archive decided to unilaterally launch its so-called “National Emergency Library” (NEL) in which it removed all lending restrictions on the books it had digitized, and began to freely loan out unlimited digital copies on the grounds that many libraries were closed or had restricted access because of COVID. This move was applauded by the American Library Association (ALA). On March 24, 2020, the same day the National Emergency Library was announced, the ALA tweeted;
“@InternetArchive has announced the creation of a new National Emergency Library with over 1.4 million books available to borrow. With libraries across the country closed, we appreciate IA filling this need.”
The ALA’s support was initially echoed by others such as National Public Radio which, on March 26, published an laudatory piece calling the National Emergency Library a “compelling alternative” (to closed public libraries). It wasn’t long before the media pendulum began to swing the other way, however, as authors’ associations such as the Authors Guild and the American Association of Publishers issued critical statements, accusing the Internet Archive of copyright violation and an “unlawful, and opportunistic attack on the rights of authors and publishers”. Writing in Medium, Adam Holland of Harvard’s Berkman Klein Center for Internet & Society published a good summary of the ebb and flow of the debate over the NEL. The Internet Archive ended its NEL experiment in June 2020, shortly after several major publishers filed a lawsuit against the IA. As I commented at the time, it looked as if the Archive was using the pandemic as an excuse to challenge some of the basic precepts of copyright. Even though the IA ended its Emergency Library, the lawsuit continues as the publishers are challenging the base principle under which the Internet Archive lends digitized works that are still under copyright. The theory the IA uses to justify the way it operates its Open Library is known as “Controlled Digital Lending”.
While the National Emergency Library amounted to Controlled Digital Lending (CDL) on steroids, CDL itself is controversial and is at the root of the publishers ongoing lawsuit. Critics of CDL say that scanning a book to produce a digital version is a form of copying, while supporters claim it is a fair use since it is simply a change of format. However, the problem with substituting a digitally scanned version of a book for the original hard-copy version is that this undermines copyright and destroys the market for e-books. As blogger Neil Turkewitz has pointed out in his piece, “The Internet Archive’s Misguided Effort to Liberate Books”, no-one is going to buy an e-book for their Kindle after they have read a “free” digitized version. Licensing e-books is part of the publishing eco-system that relies on the distribution rights contained within copyright. Libraries are frequent purchasers of e-book licenses, allowing them to lend digital copies to their members. The Internet Archive’s Controlled Digital Lending theory upends this publishing eco-system, depriving authors of the opportunity to fully exploit their rights to their work. Turkewitz sums it up as follows;
“Publishers have established independent and distinct distribution models for ebooks, including a market for lending ebooks through libraries, which are governed by different terms and expectations than print books. IA’s end-run around these differences and restrictions is aggressive and unlawful.”
The best that one can say about Controlled Digital Lending and the Internet Archive’s Open Library is that it is controversial. (The worst might be that it is engaged in book piracy). That being the case, one might want to tread carefully in engaging with the Internet Archive, especially if one was a national library operating under government auspices, such as the National Library of New Zealand (NLNZ). The Library’s mission statement is to “collect, connect, and co-create knowledge to power New Zealand.” One of the ways it intends to fulfill its mandate is by donating 600,000 “surplus” works, including many under copyright, to the Internet Archive for digitization. This has caused a furor in New Zealand.
It all goes back to last year when the National Library announced it had a problem. It had too many books—many of which had limited readership—and needed to slim its holdings. It wanted to cull 625,000 books from its overseas published collections in order to free up more space to accommodate indigenous New Zealand holdings. It proposed to “re-home” some of these books by donating them to regional libraries, others would be sold in book fairs. Many New Zealanders were not impressed with the way the Library approached the issue or announced it as an “operational matter” within its purview to decide. Accusations of “cultural vandalism” were launched.
Unwilling to back down, the Library announced in July of this year that it had struck a “historic agreement” with the Internet Archive to donate all the books left at the end of the overseas published collections review process to the Archive for digitization and preservation. If the Library’s plan to offload part of its collection of foreign books to book sales and local libraries aroused concern, the plan to donate the works to the Internet Archive generated outright anger in a number of circles, particularly among New Zealand writers and publishers. The concern was not so much that works of New Zealand authors would be sent by the Library to the Internet Archive but rather that the Archive engages in “piracy on a massive scale”. The New Zealand Society of Authors and the Publishers Association of New Zealand declared that “leading authors from New Zealand…have had their books illegally distributed online for free by the Internet Archive, forcing publishers and authors to repeatedly spend time and money taking enforcement action.”
The Publishers Association asked, “How can the National Library stand alongside internet pirates and not New Zealand’s own literary community?” The joint statement ended with;
“Authors and publishers will be reviewing all their current relationships with (the) National Library in light of this total disregard for New Zealand books and creativity.”
Fighting words.
But did the librarians at the National Library reconsider their course of action? They did not. Instead, they denied that there were any copyright implications arising from the Internet Archive donation and stated that any authors who wanted their works delisted from the donation could opt-out (leading to the destruction of the work). The onus for opting out is put on the author and is not trivial;
“You will need to provide proof of rights and the unique number for the title you have identified. The unique number is on the spreadsheet. We cannot process requests that do not include the unique number allocated to a title. Follow the steps below to opt out:
Check the list below to see if you hold rights to any titles being donated.
Search the spreadsheet either by author name or publication title. (Pressing the keys “ctrl” and “F” on your computer keyboard will enable the search function.)
Email us with the titles you would like removed. Your email must include proof of rights and the unique numbers of the titles you would like withdrawn.”
British and Australian authors have been warned that if they don’t want their works ending up at the Internet Archive to be digitized, they have to act fast. The Australian Society of Authors and the Australian Publishers Association requested that the National Library of New Zealand proactively seek permission from any rights-holders whose books will be donated to the Internet Archive for digitization, but the Library has refused, leaving the onus on authors and publishers to opt-out. So much for the symbiotic relationship between authors and libraries.
Actually, it is not the donation of a few copyrighted works to the Internet Archive that is the principal concern of contemporary authors and publishers; it is that a reputable national organization like the National Library of New Zealand would put its thumb on the scale of a high-profile copyright dispute between the Internet Archive and international publishers by, in effect, siding with the Archive by donating works to it. They are concerned about the reputational damage done to a New Zealand institution by throwing in its lot with IA , plus the disrespect shown to New Zealand writers by having their National Library choose to work with an organization that has repeatedly damaged their economic interests and infringed their copyrights.
The National Library has chosen to thumb its nose at New Zealand creators and seems intent on forging ahead with its disposal plans. I mean, why not offload your responsibilities to a controversial US organization who will take the books off your hands for nothing and digitize them at no cost to the Library? If a few authors and publishers get hurt in the process, well so what? It’s all pretty sad and I would have expected better of an organization like the New Zealand National Library, and also the New Zealand Government that has authority over the Library.
If the Library truly believes its own rhetoric that its mission is to “co-create knowledge to power New Zealand”, it seems to me that it could start by showing some respect for the writers and publishers who produce the works that is its mandate to collect.
© Hugh Stephens, 2021. All Rights Reserved.
