Australian authors are being ripped off by a US-based company scanning their books for free digital distribution, the Australian Society of Authors (ASA) has alleged as it ramps up a campaign against the practice.
The peak body raised the alarm after discovering a range of Australian authors’ books had been scanned and published online as part of the Open Library, a project by the long-running Internet Archive.
Public-domain books have long been made available online but Open Library – putatively designed to provide digital copies of books that libraries can loan to readers just like paper copies – has been scanning in-copyright titles and converting them to e-books en masse.
The project claims nearly 172,000 e-books have been loaned out so far, with over 10.2m visitors to date.
Speaking in a recent interview on Radio national, ASA CEO Juliet Rogers said the inclusion of titles by Australian authors – Bryce Courtenay, Tim Winton, Di Morrissey, John Marsden, Andy Griffiths, and others have all been copied – violated Australian copyright but the Open Library project had ignored their takedown requests.
“Given how tremendously difficult it is to earn a living from writing,” she said, “we are deeply concerned about the Open Library project, which undermines legitimate ebook sales and standard library practices.”
A fair use of fair use?
Open Library cites as its justification a policy called Controlled Digital Lending (CDL), which is based on US copyright provisions including the ‘first sale’ doctrine and ‘fair use’ principles that govern the free reuse of copyright materials.
Fair-use provisions protect “socially beneficial secondary uses of copyrighted works”, the effort argues, “that protects free speech from encroachment by copyright holders…socially beneficial purposes such as increasing public access to works may also qualify for fair use.”
The project’s use of qualifiers like ‘may’ suggest an uncertain legal position and echoed controversy and class-action lawsuits over the Google Books scanning project, Timothy Webb, an intellectual property lawyer and Clayton Utz partner, said.
“You need to take with a grain of salt the purported reliance on the [CDL] policy position statement and whether it is legally correct,” Webb told Information Age. “If Google Books was problematic, you would think this is even more problematic notwithstanding the position statement on digital lending.”
The CDL might be cause for prosecuting a claim under Australia’s Copyright Act if it was demonstrated the platform was broadcasting copyrighted works to Australian readers.
However, in general the need to litigate copyright claims in US courts is “a major impediment to access to justice,” Webb said. “Even if there are legal remedies, they’re not very accessible.”
Redefining the ground rules
Guidelines around aggregating copyrighted content remain fluid, with cloud-based economies of scale enabling large archives such as the National Library of Australia’s newly launched 600-terabyte searchable Australian Web Archive – a local analogue to the Internet Archive.
The ASA is not against digital lending as a concept; one of its core platforms is promotion of a Digital Lending Right, for which it has been lobbying government bodies for some time.
Rather, Rogers questioned “this doctrine of everything should be free… how are we going to generate wonderful writing if no-one ever gets paid?”
The ASA’s concern follows on from similar frustration voiced by parallel bodies in other countries.
The International Publishers Association, for example, recently appealed to ‘victims’ of CDL and warned that “well-meaning librarians…are being misled by false claims from proponents of CDL.”
US writers’ organisation The Authors Guild has argued that CDL is “neither controlled nor legal”, warning that the “patina of legality” in CDL’s mission statement was designed to support an “incorrect interpretation” of the fair-use doctrine.
Similar past arguments for distributing digitised music had long ago been rejected by courts, the Authors Guild noted, with a finding that digital copies of copyright words “directly substitute new licensed digital copies.”
The ASA’s Rogers said Open Library had indicated it prefers to deal with individual copyright holders rather than industry associations; however, The Authors Guild reports that the organisation has recently begun rejecting copyright complaints by Authors Guild members on the grounds that it is complying with CDL.
Since CDL is a “position statement” and not established legal precedent, the organisation may well provoke legal action that could decide the issue once and for all.
Claims and counterclaims could drag the issue out for years – and muddy efforts to formalise the Digital Lending Right in Australia and elsewhere. “I very much doubt it will be resolved swiftly,” Webb predicted.