The Covid-19 crisis has caused a lot of questions and confusion about copyright law in the publishing industry, especially because of concerns that students won’t have adequate access to their textbooks and other research materials if they can no longer access hard copies in libraries and educational institutions. Authors and teachers have also attempted to quickly develop online content to educate and entertain children who are stuck at home. Authors, librarians, and teachers have Tweeted and otherwise shared online things like readings of children’s books and art challenges involving reproducing illustrations from books.
Textbook publishers and distributors have temporarily made digital access available to large numbers of textbooks for students and researchers who are unable to access hard copies. Libraries have encouraged patrons to utilize their digital collections while the physical buildings are closed.
The technology to do all these things is relatively readily available throughout the country. The concern for copyright holders has been that the technology enables legal as well as copyright infringing uses of protected works. The fact that we are facing a pandemic and long term stay-at-home orders and protocols does not automatically change the operation of copyright law. This is why there have been a number of concerns raised by copyright holders about the need to protect their rights, particularly now, when authors and other copyright owners may be losing sources of income other than those derived from sales or licensing of their books. For example, many authors have had paid events cancelled or moved online for the foreseeable future, significantly impacting their livelihoods. Many publishers are facing losses from closures of physical bookstores, despite the availability of other avenues for getting books to readers: online stores, e-books, digital borrowing from libraries, etc.
The Internet Archive has been in the headlines a lot lately because of its decision to make its collection of full text digital books available to the public generally, without a license to do so from the publishers. Previously it allowed digitized books to be licensed to one patron at a time, like physical books, but during the pandemic, it has removed the waitlist feature and made books generally available to multiple people at once: notably to service schools, library patrons, and other educational avenues.
The purpose of this post is not to take sides on any of these issues, but to note how copyright law—one of the most significant laws for the publishing industry—is challenged when unforeseen events occur. The dawn of the digital age challenged copyright in new ways, leading to amendments to the copyright act. The current pandemic also challenges the existing copyright balance between protecting the rights of creators of works and the need for access to these works for publicly important purposes.
One of the features of copyright law that typically achieves this balance is the fair use defense, but this defense does not provide clear guidelines in any particular case about what is or is not a fair use rather. Could the Internet Archive claim it is making fair uses of the material it is sharing widely to those who may not otherwise have access to it? Maybe. Could it claim it is enabling others to make fair uses of those materials? What about those teachers and librarians who are reading books to students online? Is that a fair use? The American fair use defense doesn’t actually say that all educational uses are fair uses. It does protect a number of educational uses, but the decisions about fair use are always context-specific, depending on how a court might apply the four fair use factors set out in the copyright act. If you’re interested in how fair use works, I’ve written about it here and here.
Can authors read their own books online for promotional or entertainment purposes? Only if they hold the rights to do so. Oftentimes they will have assigned or exclusively licensed rights in their works to their publishers and may need the publisher’s permission to read (or “perform”) the works online.
Textbook publishers that have made digital versions of their books temporarily available to students, staff and faculty at academic institutions likely do have the rights to do so because they own copyright or hold licenses enabling them to share the works under these terms.
The bottom line is that copyright law doesn’t go away during times of crisis. It may seem less relevant or important to those of us who need access to books for informational or educational purposes. We may all scratch our heads and ask: Why are people fighting about copyright in the middle of a pandemic?
The reason is that copyright is how authors, publishers, and distributors of books make their money. The pandemic affects the bottom line for all these people and companies because of its major impact on the economy and the specific impacts on authors who make their living from selling books, as well as events and other income streams related to those books. There are no easy solutions to how best to use the technology we have to share informational, educational and entertainment resources broadly while protecting the income streams of those who create and distribute those resources. However, in these difficult times it is worth remembering how complex this system really is. Authors may want to think about the extent to which they can afford to share, or limit sharing of, their works, and how the pandemic affects them