One of the newly admitted works to the public domain: 1927 novel To the Lighthouse by Virginia Woolf. Cover image via publicdomainreview.org.
Public Domain Day is the yearly celebration of a new group of copyrighted creative works entering the public domain, making them freely accessible to all. Public Domain Day is the perfect opportunity to learn about legal concepts and challenges surrounding intellectual property law and how this evolving area of law affects libraries, their users, and the authors and publishers of the resources in library stacks. The pandemic increased the demand for access to digital materials as large book publishers merged while library in-person services became limited, resulting in raised tensions between publishers, authors, and libraries over the future of e-book and other digital lending.
Find more resources about the background of Public Domain Day and the legal history of the public domain by checking out these past Ex Libris Juris posts:
The Internet Archive, Publishers, and the Pandemic
The Internet Archive is celebrating Public Domain Day 2023 by hosting virtual and in-person parties under the theme “The Best Things In Life Are Free.” One the web’s largest resources for accessing digitized versions of works in the public domain, the Internet Archive (IA) also features the Open Library, which collaborates with libraries across the world to provide digital copies of copyrighted works to “borrow” for a limited amount of time as one would in a traditional library.
The IA has made headlines for recent complaints and lawsuits brought by authors and publishers against the IA over the legality of what IA and the Creative Commons call the “controlled digital lending” of digitally scanned print books and materials from its Open Library. During the pandemic, the IA launched its “National Emergency Library” and temporarily lifted limits on the number of digital copies available to be checked out at one time through digital lending. The National Emergency Library was challenged by some authors who argued its practices were akin to mass piracy, and the project was shut down in June of 2020.
The Internet Archive returned to controlled digital lending, allowing for one digital copy of a book to be borrowed at a time. In September of 2022, a group of major book publishers including Hachette Book Group, HarperCollins, and Penguin Random House, sued the IA over the practice of controlled digital lending via the Open Library. The publishers’ lawsuit, however, was criticized by some authors, who petitioned the publishers to reevaluate their policies on how many digital copies of books libraries, both brick-and-mortar and web-based, may purchase and loan.
In December of 2022, the Internet Archive released a report titled “Securing Digital Rights For Libraries: Towards an Affirmative Policy Agenda for a Better Internet.” This report “articulates a set of four digital rights for libraries, based on the core library functions of preserving and providing access to information, knowledge, and culture.” One of these rights is the right to: “Lend digital materials, at least in the same ‘one person at a time’ manner as is traditional with physical materials.”
Swashbuckling E-book-a-neers
The Internet Archive is not the only digital library facing legal fire from publishers; several online “pirate” or “shadow” libraries have been challenged by not only publishers, but also by authors for providing a platform for users to download digital copies of copyrighted books for free. The popular e-book pirating website Z-Library, in operation since 2009, was shut down after a federal investigation and lawsuit against its operators in November of 2022. Archivists responded by launching an online shadow library search engine.
E-book "Price Fixing” and the Future of Digital Lending
Librarians have challenged terms in licensing agreements with publishers that limit digital lending of e-books since before the pandemic. In 2019, a group of librarians delivered petitions with thousands of signatures to the New York MacMillan office demanding an end to the practice of “windowing,” which prohibits libraries from loaning out digital copies of newly released titles, leading to long waitlists for new books and bestsellers.
A class action lawsuit brought against Amazon and the “Big Five” book publishers was first filed in the Southern District of New York on January 14, 2021, was dismissed in September 2022, and then revived in November of that year. The lawsuit alleges that Amazon and the Big Five publishers conspire to use market dominance to "coerce" e-book publishers into "entering into contractual provisions that foreclose competition on price or product availability."
Practices and policies for lending e-books has long stirred tensions between libraries and publishers. The demand for access to digital materials has increased the amount of library materials acquired by licensing contracts with publishers that must be periodically renewed. Licensing contracts have engaged librarians in new questions concerning copyright law and new vocational requirements such as contract negotiation.
As legal challenges to digital access rights for copyrighted content develop, the future of accessing digital copies of written and other creative works, either copyrighted or public domain, may look very different. The following resources can help you stay on top of developments: