Internet Archive shuts down its Temporary National Emergency Library and opens a new front with the digitisation of recordings

By Emmanuel Legrand

The Internet Archive has decided to close its Temporary National Emergency Library two weeks earlier than planned, according to a blogpost published by IA's founder Brewster Kahle. The Temporary National Emergency Library was launched in March as a response to the closure of libraries due to the pandemic, and provided access for free to 1.3 million books in digital format.

  However, publishers and authors have complained that the decision from IA was putting their business at risk and that the IA was not licensed to provide access to books that were not in public domain. Eventually, four major publishers decided to sue IA for massive copyright infringement in the Southern District of New York.

  "Today we are announcing the National Emergency Library will close on June 16th, rather than June 30th, returning to traditional controlled digital lending," wrote Kahle. "We have learned that the vast majority of people use digitised books on the Internet Archive for a very short time. Even with the closure of the NEL, we will be able to serve most patrons through controlled digital lending, in part because of the good work of the non-profit HathiTrust Digital Library. HathiTrust’s new Emergency Temporary Access Service features a short-term access model that we plan to follow."

An attack on digital lending

  Kahle said he decided to move the schedule because of the lawsuit, which he said "is not just about the temporary National Emergency Library" but "attacks the concept of any library owning and lending digital books, challenging the very idea of what a library is in the digital world."

  He continued: "This lawsuit stands in contrast to some academic publishers who initially expressed concerns about the NEL, but ultimately decided to work with us to provide access to people cut off from their physical schools and libraries. We hope that similar cooperation is possible here, and the publishers call off their costly assault."

  Kahle said the concept of "controlled digital lending" is now widely spread among libraries to provided access to digitised books and that the digitised book offered for lending by libraries are "protected by the same digital protections that publishers use for the digital offerings on their own sites."

Collaboration with authors and publishers

  He concluded: "Many libraries, including the Internet Archive, have adopted this system since 2011 to leverage their investments in older print books in an increasingly digital world. We are now all internet-bound and flooded with misinformation and disinformation — to fight these we all need access to books more than ever. To get there we need collaboration between libraries, authors, booksellers, and publishers. Let’s build a digital system that works."

  Kahle's decision came a few days after he received another letter from the Chairman of the Senate Judiciary Committee Subcommittee on Intellectual Property, Thom Tillis, this time about the Internet Archive's purchase of Bop Street Records's full collection of 500,000 sound recordings. IA, according to an article in the Seattle Times, plans to "digitise the recordings and put them online, where they can be streamed for free.”

  For Tillis, if IA proceeds with this project, this would "involve the unauthorised digitisation and dissemination of copyright-protected creative works — in this case sound recordings." Wrote Tillis: "It is not clear from the article, or others, if you intend to digitise all of the sound recordings acquired  from Bop Street. But it is clear that these sound recordings were very recently for sale in a commercial record shop and likely contain many sound recordings that retain significant commercial value. This raises serious alarms about copyright infringement."

Digitising protected recordings

  Bop Street Records focused on collectible-quality vinyl records across a diverse range of musical genres, with recordings from the 1920s to 1990s. "The overwhelming majority — if not all — of these sound recordings are protected by US copyright law, and thus may not be digitised and streamed or downloaded without authorisation," noted Tillis who added that he was "concerned that the Internet Archive thinks that it — not Congress — gets to determine the scope of copyright law." 

  Tillis concluded by inviting Kahle "to share with me the legal support, in copyright law or elsewhere, for reproducing and distributing copyrighted works that are owned by others," asking for a response by July 10, 2020.