Author Archives: Peter M. Routhier

U.S. Congress Investigates Publisher Restrictions on Library E-Books

Yesterday, Senator Ron Wyden (D-Oregon) and Representative Anna Eshoo (D-California) sent an inquiry to each of the “Big Five” book publishers to investigate their activities in the library e-book market. As the Senator and Congresswoman noted, rather than simply selling books to libraries, publishers insist on using “restrictive and expensive licensing agreements,” leaving libraries to face with “skyrocket[ing]” prices and temporary “leases,” “often at a much higher markup than what the average consumer pays for the same title.” 

These practices have led to outcry by librarians and others around the world, including the #ebookSoS Campaign to Investigate the Academic eBook Market. Following careful reporting on the topic in The Nation, the Daily Beast, and the New Yorker, as well as campaigning by Library Futures and others, the Wyden-Eshoo inquiry seeks information on the restrictions the publishers place on their e-books, their outsize costs, and any legal actions they have taken to prevent libraries from engaging in traditional lending practices, among other things. The publishers have until October 7 to respond.

We are pleased that government officials are looking carefully at these issues. Libraries need to be able to buy books; publisher licensing models restrict libraries’ core functions of preservation and lending. That is why we have long sought to actually purchase e-books from publishers. But the big publishers, in a curiously coordinated fashion, have refused to do so—instead using the digital transition to impose onerous and expensive licenses on libraries, and to sue the Internet Archive for doing digitally what libraries have always done physically, preserve and lend books. This letter shows that some in Washington, if not in the publishing houses, still have the public interest in mind.

It is also the latest in a groundswell of support for Controlled Digital Lending. As the letter notes, “it is imperative that libraries can continue their traditional lending functions” in the digital age. Controlled Digital Lending allows libraries to do just that. The Boston Library Consortium, the International Federation of Library Associations, and even large commercial organizations like ProQuest are lining up behind Controlled Digital Lending. 

To learn more about CDL, and the importance of digital ownership for the future of libraries, consider joining our virtual Library Leaders Forum this October.

A New Day in Canada

With the Canadian federal election coming to its conclusion, many eyes are turning to the last government’s proposals for internet and copyright policy reform. Unfortunately, some of these were quite concerning, such as an “online harms” proposal that the Electronic Frontier Foundation called “dangerously misguided“; all Canadians should learn more about this proposal and use Open Media’s tool to let the government know what you think. Fortunately, other policy actions, such as the Consultation on Artificial Intelligence and the Internet of Things, present more promise.

Internet Archive Canada recently made a submission in response to this AI consultation. As mentioned in the submission—and as recognized in the consultation paper​​ itself—AI raises a fundamental and recurring copyright question: how to ensure the law keeps pace with technological change. In our view, what history suggests as an answer is not interminable legislative tweaks, but rather flexible copyright frameworks, including flexible limitations and exceptions like the fair use doctrine. The Supreme Court of Canada has shown a wonderful and enduring commitment to a flexible conception of fair dealing—most recently in the York University v. Access Copyright case. Why not continue down this path and simply reaffirm the flexible and open nature of fair dealing in Canada today?

The artificial intelligence consultation itself helps prove the point. The Government has been considering taking action on artificial intelligence since a review of the Copyright Act commenced all the way back in 2017 (itself set in motion years earlier). In the years between then and now, should Canada’s technology industry have taken a wait-and-see approach, while others made extraordinary investments in AI? Why spend half a decade or more tweaking narrow legislation when broadly flexible limitations and exceptions can and do fill this gap? And flexibility provides a host of other benefits, including for AI itself. For example, AI is not immune from the ancient maxim, garbage in, garbage out, to say nothing of the bias and other similar problems with AI. As a result, it is important that AI researchers and others be able to analyze datasets both before and after ingestion, and that copyright not stand as an undue obstacle to this work. Legal frameworks empowered by flexible copyright limitations and exceptions, such as controlled digital lending, can help facilitate this process. 

In the end, the AI consultation offers much to be thankful for, including an open and transparent process and many good ideas. We look forward to continuing to work with our Canadian friends and neighbors to ensure good copyright policy and strong libraries in the 21st century and beyond.

Supreme Court of Canada Reaffirms Public Access as a “Primary Goal of Copyright”

The Supreme Court of Canada has decided the much-anticipated York University v. Access Copyright case, reaffirming—in an unanimous opinion—that “public access to and dissemination of artistic and intellectual works” are “a primary goal of copyright.” We join our friends at the Canadian Association of Research Libraries, CIPPIC, and all throughout Canada in applauding this important decision.

The Access Copyright case was centered around the question whether educational institutions in Canada were required to pay certain tariffs to Access Copyright. Access Copyright had argued that its tariffs were mandatory for educational institutions, and recently attempted to raise them from $3.38 to $45 per student, per year, along with a variety of other changes. In response, York University argued that its use was fair dealing and, as a result, that it was not required to pay a tariff or any other fee for such use. After a lengthy court battle, the Supreme Court of Canada has now ruled in favor of York, holding that the tariffs are not mandatory and emphasizing the importance of “protect[ing] users from the potentially unfair exertion of . . . market power” by big copyright interests like Access Copyright.

While the Court did not address the specifics of York’s own fair dealing, it was sure to emphasize “the nature of fair dealing as a user’s right” in Canada. As the Court explained:

Copyright law has public interest goals. . . . [T]he public benefits of our system of copyright are much more than “a fortunate by-product of private entitlement” [citation omitted].  Instead, increasing public access to and dissemination of artistic and intellectual works, which enrich society and often provide users with the tools and inspiration to generate works of their own, is a primary goal of copyright. “Excessive control by holders of copyrights and other forms of intellectual property may unduly limit the ability of the public domain to incorporate and embellish creative innovation in the long-term interests of society as a whole” (Théberge v. Galerie d’Art du Petit Champlain inc., [2002] 2 S.C.R. 336, at para. 32, per Binnie J.).

York University v Canadian Copyright Licensing Agency (Access Copyright), 2021 SCC 32

Copyright can only serve its true purpose when due attention is given to user’s rights and the public interest. But all too often, in courts around the world, the public interest is not fairly addressed. The Access Copyright decision helps ensure that Canadian courts do not make this mistake; as Professor Michael Geist has noted, it “removes any doubt that the Supreme Court remains strongly supportive of user’s rights in copyright.”

Internet Archive Joins Communia, Celebrates its 10th Anniversary

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The COMMUNIA Association is an international network of activists, researchers, and practitioners from around the world. Founded a decade ago, Communia advocates for policies that expand the public domain and increase access to culture and knowledge. Now, in celebration of its ten-year anniversary, Internet Archive is pleased to announce that it has officially joined Communia.

At its founding, Communia issued 14 policy recommendations. Broadly speaking, these recommendations stand for a balanced approach to copyright that would help expand access to knowledge. On the occasion of its tenth anniversary, Communia held a series of events, and launched a new webpage, to reflect on these recommendations in view of the past ten years of copyright policy and to consider what the future may hold.

Meanwhile, Communia has continued to engage in the day-to-day work of advocating for a more balanced copyright. For instance, over the past several years, Communia has been a key voice regarding the European Union’s Directive on Copyright in the Digital Single Market. Like many others, we spoke out against many aspects of this new law. But the work did not stop there—as an EU Directive, this new law has to be transposed by each EU member state: implemented through passage of their own national laws. And because member states have discretion in how exactly to implement the directive, there has remained the important—but challenging—work of trying to guide its implementation in the best possible way. Communia took on this extraordinarily difficult task.

To do so (as they recently explained), Communia built a network of local advocates in each of the 27 member states. They then worked with these local advocates to try to guide the national implementations of the DSM directive so as to maximize access to knowledge and culture and the protection of users’ rights. More recently, they launched the Eurovision DSM contest, tracking the status of each member states’ implementation of the directive and scoring them along important metrics including transparency and safeguards for user rights. This is challenging and resource intensive work; as a result, the public interest often does not have a seat at the table. Communia ensures that it does.

So we congratulate Communia on its tenth anniversary, and are thrilled to support and join in its work. We look forward to working alongside Open Future, Creative Commons, and all the others who have made Communia such an important voice in the copyright community over the past decade and are sure to do the same in the years to come.

Automatic Filtering: Back to the Future

Image of a Filter
Image From Bühler, Friedrich Adolf, Filtern und Pressen (Leipzig O. Spamer 1912)

The Government of Canada continues to consider fundamental changes to its copyright laws. In its latest proposal, what’s old is new again, as Canada once more considers automatic content filtering online. Internet Archive Canada strongly opposes these proposals, and submitted a formal response to the Government explaining why.

Image of a Filter

Unfortunately, these are not new ideas. For over a decade, website blocking, automatic content filtering, internet bans, and other draconian copyright measures have been urged on governments around the world. With political leaders looking at large technology companies with a new eye, both the United States and the European Union have expressed a new openness to these previously rejected ideas. Now styled as attempts to reign in “big tech,” what is really at stake is the free and open internet, which offers so much to the individual user and makes websites like archive.org possible.

Fortunately, while the Government has outlined a variety of potentially troubling changes to Canada’s Copyright Act, it has also stated that “[s]ignificant changes” to Canada’s copyright law are “not presently being contemplated.” In the circumstances, Internet Archive Canada is simply asking the Government to recognize the tremendous significance of these kinds of proposals and refrain from enacting them at this time. Many others have done the same; indeed, our friends at Open Media asked all Canadians to voice their concerns .

Internet Archive Canada is proud of its history in Canada, and we have often lauded Canada’s bright and positive approach to copyright. We are hopeful that reason will once again prevail in the Canadian copyright debates, and that the Government of Canada will work to ensure good copyright policy and strong libraries in the 21st century and beyond.

Challenges and Opportunities in Canadian Copyright Reform

Map of Canada

The Government of Canada recently agreed to extend its copyright term by twenty years. This is a great loss for the public domain; among other things, this term extension means that the public domain will not be refreshed in Canada for decades. Fortunately, the Government of Canada is exploring various ways to mitigate this loss. Internet Archive Canada was pleased to submit its views—based on its own experiences working with the public domain in Canada—on the best way to do so.

Internet Archive Canada has been working with Canadian libraries, patrons, and others for over fifteen years in support of the mission to provide Universal Access to all Knowledge. Over that time frame we’ve digitized more than 650,000 books, micro-reproductions, and a variety of other archival materials. Today, Internet Archive Canada has a substantial collection focused on Canadian cultural heritage and historical government publications. Along with our partners, we’ve made a significant investment in and contribution to the accessibility of Canadian digital heritage. 

For example, you may have heard of Canada’s Group of Seven, groundbreaking Canadian landscape painters that have also been known as the Algonquin School. The Group and related artists were active in the early part of the twentieth century, meaning that much of their work is already in the public domain. As a result, substantial efforts have been made by a number of institutions to digitize and make their work more broadly available. And there are a fair number of these kinds of materials in Internet Archive’s collections, such as works by and about Emily Carr and Lawren Harris. Many of these are either in the public domain or were expected to enter it soon. For example, as Lawren Harris died in 1970, under Canada’s current life+50 copyright term his works should be entering the public domain now. But under the new proposal to extend that term to life+70 years, we’d be another twenty years away. 

Emily Carr's Kitwancool

Emily Carr, Kitwancool, 1928

In order to mitigate the harm caused by this extension, the Government of Canada is considering allowing some use of older works that will be kept from the public domain—especially by libraries like us. And while the exact parameters are at this point uncertain, we applaud the Government’s careful attention to this matter and inquiry to stakeholders like us. 

As we emphasize in our letter, it is important that rules which allow for use of older works in theory make sense in practice. Oftentimes they do not, as the experience in the United States has shown. When the United States implemented its own copyright term extension, it allowed libraries and certain others to use works in the last twenty years of their copyright term—similar to what Canada is proposing—but only if they met certain onerous requirements. Internet Archive undertook substantial work to try to make use of these provisions—including a substantial amount of time with a professional researcher and several interns—but was only able to identify about sixty works that qualified. Subsequent work has raised that number to a few hundred, but the bottom line is that this is needlessly hard work. That is why, as we highlighted in our comments, we believe that it is important that Canada’s mitigating measures not impose onerous restrictions on use. 

That said, we are optimistic about the future in Canada. Canada has a long tradition of respect for library and user rights, with an engaged academic and library community, and the Government’s proposals include some very good ideas. We look forward to continuing to work with the Government of Canada and all our Canadian friends and neighbors to ensure good copyright policy and strong libraries in the 21st century and beyond.