The Internet Archive and the National Emergency Library: Copyright Law and COVID-19

Laws, 11 (5), , 79, 2022; https://doi.org/10.3390/laws11050079

33 Pages Posted: 18 Oct 2022 Last revised: 24 Oct 2022

See all articles by Matthew Rimmer

Matthew Rimmer

Queensland University of Technology (QUT)

Date Written: October 14, 2022

Abstract

In the tradition of legal writing about landmark intellectual property cases, this paper provides an in-depth case study and analysis of an important copyright conflict during the COVID-19 crisis. The Internet Archive established the National Emergency Library to provide for access to knowledge for those who were unable to access their usual libraries, schools, and educational institutions. In response, four large publishers have brought a copyright lawsuit against the Internet Archive, alleging both direct copyright infringement, as well as secondary copyright infringement. The Author’s Guild has supported this action. Fearful of litigation, the Internet Archive has decided to close the National Emergency Library earlier than it anticipated. The litigation raises a range of issues in respect of copyright infringement, the defence of fair use, library exceptions, digital lending, and intermediary liability. The conflict also raises questions about the operation of the first sale doctrine in the digital era. There are also divided views as to what, if any, remedies are appropriate in the case over the Internet Archive and the National Emergency Library. It is argued that there needs to better mechanisms under copyright law to enable access to knowledge in a public health crisis – such as the coronavirus outbreak. This case study makes a significant contribution to our understanding of the relationship between authors, publishers, and libraries in the digital age. It also provides an insight into copyright litigation – in particular, the role of amicus curiae submissions, and the nature and scope of copyright exceptions. This paper also raises larger considerations about the intersection of copyright law with larger concerns about access to knowledge, competition policy, and public health emergencies.

Keywords: Copyright Law, Internet Archive, Publishing, Authors, Defence of Fair Use, Library Lending, Intermediary Liability, Remedies, Intellectual Property, Emergency Powers, Coronavirus COVID-19, Access to Knowledge, Education, Literacy

JEL Classification: K41, K32, K11

Suggested Citation

Rimmer, Matthew, The Internet Archive and the National Emergency Library: Copyright Law and COVID-19 (October 14, 2022). Laws, 11 (5), , 79, 2022; https://doi.org/10.3390/laws11050079, Available at SSRN: https://ssrn.com/abstract=3626484 or http://dx.doi.org/10.2139/ssrn.3626484

Matthew Rimmer (Contact Author)

Queensland University of Technology (QUT) ( email )

Level 4, C Block Gardens Point
2 George St
Brisbane, Queensland QLD 4000
Australia

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