One of the many arguments made against the National Emergency Library’s decision to make 1.4 million books available for free without a waitlist is that there are no “emergency provisions” of copyright law. Senator Thom Tillis (R-NC) quipped in his letter to Internet Archive founder Brewster Khale that he was “unaware of any measure under copyright law that permits a user of copyrighted works to unilaterally create an emergency copyright act.”
Tillis is technically correct, but others have taken this argument a step further by arguing that even in times of crisis, copyright protections have been maintained. For example, in his thorough analysis of the legality of the NEL, Steven Tepp wrote:
IA and its supporters might be surprised to learn that historically the United States has repeatedly looked to strengthen copyright during national crises, not use them as an excuse to weaken or ignore it…
Perhaps most analogous to the present situation, in the worst depths of the Great Depression Congress dedicated significant time to legislation for the purpose of strengthening copyright. The apex of this effort was in the 74th Congress, when legislation to reduce copyright formalities to facilitate joining the Berne Convention passed the Senate and was the subject of twenty-seven days of hearings in the House of Representatives. While the legislation was not enacted at that time, it does not detract from the direction in which Congress sought to move. Rather than looking for ways to give away the works of creators at a time when as much as a quarter of the workforce could not find a job for years, Congress looked to make it easier to secure copyright and to expand protection for works of foreign authors.
This is the general theme of many arguments against the NEL and people stuck inside during the lockdown who are illegally streaming or downloading content: a crisis is not an excuse to “steal” from rights holders. However, this analysis is not entirely correct, as there is one well-documented change to intellectual property policy during wartime.
The Trading With The Enemy Act (TWEA) of 1917 permits the compulsory licensing of patents and copyrights held by an enemy or ally of an enemy. We have two examples of how the use of TWEA’s licensing provisions improved innovation during times of war.
First is a study related to the use of patents during WWI:
Compulsory licensing allows firms in developing countries to produce foreign-owned inventions without the consent of foreign patent owners. This paper uses an exogenous event of compulsory licensing after World War I under the Trading with the Enemy Act to examine the long run effects of compulsory licensing on domestic invention. Difference-in-differences analyses of nearly 200,000 chemical inventions suggest that compulsory licensing increased domestic invention by at least 20 percent.
Next is a study of the effects of the 1943 U.S. Book Republication Program:
Copyrights for books, news, and other types of media are a critical mechanism to encourage creativity and innovation. Yet economic analyses continue to be rare, partly due to a lack of experimental variation in modern copyright laws. This paper exploits a change in copyright laws as a result of World War II to examine the effects of copyrights on science. In 1943, the US Book Republication Program (BRP) granted US publishers temporary licenses to republish the exact content of German-owned science books. Using new data on citations, we find that this program triggered a large increase in citations to German-owned science books. This increase was driven by a significant reduction in access costs: Each 10 percent decline in the price of BRP book was associated with a 43 percent increase in citations. To investigate the mechanism by which lower book prices influence science, we collect data on library holdings across the United States. We find that lower prices helped to distribute BRP books across US libraries, including less affluent institutions. Analyses of the locations of citing authors further indicate that citations increased most for locations that gained access to BRP books. Results are confirmed by two alternative measures of scientific output: new PhDs and US patents that use knowledge in BRP books.
The need for national unity and swift, effective response to the current crisis is reminiscent of the First and Second World Wars. Beyond that, apples and oranges couldn’t begin to describe the difference between the Second and Third Reichs and the rights holders concerned about infringement in this pandemic.
But the point remains: in a time of crisis, the U.S. has taken measures to limit intellectual property protections with significant benefit to the public. While the intent of the TWEA was both to help Americans and harm the Germans, the high demand for content and innovation makes policies that curb exclusivity provided by intellectual property for the benefit of the public worth a second look.