National Emergency Library: Infringement or Fair Use?

Joshua Samuel

            COVID-19 has certainly done a lot to change the world that we live in. But how has it affected copyright law? In light of the global pandemic, an organization called the Internet Archive has made 1.4 million books free to download off of their website through a service they call the National Emergency Archive. Despite the name, anyone in the world with Internet may access it. This resource will be open until at least June 20, 2020, or whenever the national emergency in the United States is declared over. Patrons have the ability to check out a book for a 14 day period, but they may continue to check out the book as many times as they like. Under normal circumstances, the Internet Archive only loans out a limited number of books at a time, and people are put on a waitlist to use books that are already checked out, much like a normal library. However, people may now access any of these books for as long as they like until the crisis is over.[1]

            Under normal circumstances, e-book lending is allowed. However, these arrangements typically pay publishers a license fee. The National Emergency archive, on the other hand, allows users to read the books without compensating the authors or publishers at all. This arrangement was met with a lot of support, as evidenced by this article in the New Yorker entitled “The National Emergency Archive is a Gift to Readers Everywhere.” In addition, over three hundred libraries and universities have signed a statement in support of the archive.[2]

            While this archive is definitely a win for libraries and consumers, there has been backlash from authors and publishers, as detailed in this New York Times article: ‘Emergency’ Online Library Draws Ire of Some Authors. The publishing industry is generally not thought of as being heavily effected by the pandemic, but there is the distinct possibility that authors will lose money that they otherwise would have gained were it not for the National Emergency Library. On the other hand, libraries and universities around the world have shut their doors, so people do not have the same access to books that they would otherwise have. For example, I am having a very hard time accessing print-only resources for my major writing paper. I can’t exactly check them out from the Columbia Library while in my parents’ house in Texas.

            What we have here is a dilemma: Is the National Emergency Archive fair use, or outright infringement? That’s for the courts to decide if they are ever faced with the question. Copyright law is designed to support authors, but it is also designed to promote the free flow of information and ideas. This question could go both ways. But to be honest, I doubt anyone is going to bring a lawsuit against the Internet Archive, so I guess this is a question we will never get an answer to. For now, the books are available. Go crazy.