November 22, 2021

The Chief Executive
Department of Internal Affairs
Wellington, NZ
1982

VIA E-MAIL

ACT
  Dear Mr. James:
  We write in response to your announcement that the National Library of New Zealand plans to
transfer up to 600,000 books from its Overseas Published Collections (OPC) to the Internet
Archive, apparently without regard to the fact that Internet Archive has been sued for flagrantly
and systematically infringing the copyrights of authors and publishers by copying and
distributing millions of books—both fiction and nonfiction—without so much as attempting to
seek the licenses that are required by law. As the lawsuit spells out, Internet Archive’s operation
far exceeds the bounds of legitimate preservation functions or other calibrated exceptions under
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U.S. law and the laws of our trading partners.
  The Association of American Publishers (AAP) represents the leading book, journal, and
education publishers in the United States on matters of law and policy. It goes without saying
that publishers are devoted to the lawful distribution of books and other forms of information and
creative content and take seriously their investment in authors and service to the public interest.
Indeed, publishers worldwide value public libraries as partners in mission, not only devoted to
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readers of all ages but also respectful of the authors and the rule of law that make books possible
in the first place. In opposing the OPC transfer to Internet Archive, the AAP joins a growing
chorus of other groups that have made the National Library of New Zealand aware that its
impending contribution is highly questiona
THE  ble as a matter of law and shocking for a public
institution.
  You may be aware that on June 1, 2020, four American publishers filed a lawsuit against Internet
Archive to halt its mass scanning, public display, and distribution of entire literary works1—
precisely the conduct it intends to enlarge now with your assistance. The scale of Internet
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Archive’s scheme is already troubling: through its “Open Library,” it distributes unauthorized
digital copies of over 1.3 million books. New Zealand’s coordination and delivery of roughly
half a million additional books would significantly contribute to this unlawful activity.
  To be clear, we note that Internet Archive’s so-called plan to remove OPC material from its
illegal service if requested by rights holders is irrelevant: it does not excuse its actual or intended
infringement. Placing an opt-out burden on authors and publishers runs completely counter to

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1 Elizabeth A. Harris, Publishers Sue Internet Archive Over Free E-Books, N.Y. TIMES (June 1, 2020),
https://www.nytimes.com/2020/06/01/books/internet-archive-emergency-library-coronavirus.html.

455 Massachusetts Ave. NW  •  Suite 700  •  Washington, DC 20001  •  9(2)(a)
•  www.publishers.org

1982
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The Chief Executive
Department of Internal Affairs
WELLINGTON
By email to the following email addresses:
[email address]
[email address]
[email address]
ACT 1982
26th November 2021
Dear Sirs
NATIONAL LIBRARY OF NEW ZEALAND – INTERNET ARCHIVE – OVERSEAS
PUBLISHED COLLECTION – DIGITISATION AND SUPPLY
We are sending this letter to you concerning the agreement which the National Library of New
Zealand (NLNZ) has announced with Internet Archive (IA). We have been alerted to this matter
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by the Publishers Association of New Zealand, the New Zealand Society of Authors and
Copyright Licensing New Zealand.
Taylor & Francis Group is one of the world’s leading publishers of scholarly journals, books,
eBooks, text books and reference works, with a history dating back over two centuries. Taylor
& Francis Group currently publishes more than 2,500 journals and over 5,000 new books each
year, with a books backlist in excess of 120,000 specialist titles. Our content spans all areas of
humanities, social sciences, behavioural sciences, science, technology and medicine.  Our
imprints include Routledge, Garland Science, CRC Press and Psychology Press.
We are aware that under the agreement NLNZ will donate its Overseas Published Collection of
600,000 books to IA. IA proposes to convert these from print copies to electronic copies. Part
of the agreement is that NLNZ is requiring IA to make available the digitised versions of the
OPC books to New Zealanders via IA’s Open Library Scheme. The Open Library Scheme will
be available not only to New Zealand users but also users worldwide.
It has come to our attention that the NLNZ’s Overseas Published Collection include multiple
titles and imprints for which we are the copyright owners. We know that our fellow publishing
houses are in the same position as we are.
The fact that NLNZ may own a copy of one of our books as part of its OPC does not confer on
NLNZ any rights to deal with the copyright in that book as it thinks fit. It is astonishing to us
that a supposedly reputable National Library should enter into the above agreement with IA:
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2&4 Park Square, Milton Park, Abingdon, Oxfordshire OX14 4RN
9(2)(a)
Registered in England and Wales. Registered Number: 1072954
Registered Office: 5 Howick Place, London, SW1P 1WG; VAT Number: 365462636

(a)
Without considering copyright ownership; and
(b)
Without seeking prior written clearance from copyright owners for the digitisation of
their copyright works and the intended making available of those copyright works to the
public.
We have taken legal advice and consider that NLNZ is liable for copyright infringement in New 1982
Zealand by making the OPC available to IA knowing that these copyright works will be digitised
and, indeed, requiring that they be made available to users in New Zealand (and elsewhere in the
world). There is clearly a common design on the part of NLNZ and IA.
ACT
Further, the Controlled Digital Lending referred to in NLNZ’s communications is not legal nor
within the y permitted use provisions for libraries in part 3 of the Copyright Act 1994. Further,
IA does not qualify for any of the library permitted uses.
We are therefore seeking your written undertakings that:
(a)
NLNZ will carry out a review to determine all the works in the OPC that are still within
copyright;
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(b)
Will immediately withdraw from the IA contract and will not be party to any provision
of copyright works from the OPC to IA for the purposes of digitisation and supply via
the internet, without the prior written consent of publishers.
Please let us have these undertakings by immediately, and in any event no later than 1st December
2021.
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In the meantime, we reserve all of our legal rights, including in relation to any other publications
published or made available by IA that may infringe our rights.

Yours faithfully
THE

Gabriella Groves
9(2)(a)

Informa UK Limited trading as Taylor & Francis Group
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2&4 Park Square, Milton Park, Abingdon, Oxfordshire OX14 4RN
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Registered in England and Wales. Registered Number: 1072954
Registered Office: 5 Howick Place, London, SW1P 1WG; VAT Number: 365462636

30 October 2018

Hon Kris Faafoi
Minister of Commerce and Consumer Affairs
Via email  : [email address]

1982

Kia ora Minister,
ACT

I write on behalf of Copyright Licensing NZ, Publishers Association on New Zealand and New Zealand Society
of Authors, to bring to your attention a matter of significant concern to the New Zealand publishing industry.

Open Library, a website established in the USA, is an initiative of an organisation called the Internet Archive.
This website is supported by an increasing number of US university libraries, which are digitising books in their
physical collections and making these available for online lending via the website. Those behind the website
claim their operation is legal under the US fair use copyright regime. The books they are digitising are not
limited to USA titles and access is not limited to USA site visitors.

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We have searched the website for New Zealand author's books and found a number from Auckland University
Press - including those of Keri Hulme, CK Stead, Frank Sargeson and Marilyn Waring. There are also books
from Victoria University Press - including works of Catherine Chidgey, Elizabeth Knox, Patrick Evans and
Damien Wilkens. Some of these books are less than 10 years old.

Our discovery of this open online library activity comes very soon after we found New Zealand author's and
publisher's work on an Illegal website - Oceanofpdf.com. The response to this illegal site by publishers in the
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United Kingdom has resulted in the site being taken down. We are, however, uncertain as to whether this will
be permanent as it is reported to have morphed into another site. There is currently no effective mechanism
for New Zealand authors and publishers to take action when circumstances such as these occur, either to
THE
protect their copyright and insist the work is removed or to block the site via ISP’s.
New Zealand authors and publishers work exceptionally hard to bring published work to New Zealand and
international readers and cannot afford to have illegal use of their work encroaching on their market and
reducing their ability to invest in future work. Arguably, once the work is pirated and made available for free
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online, it will generate no further income for the New Zealand based author or publisher. Free online content
competes directly with ebook editions produced by the publisher and available all over the world, on all
platforms at a reasonable price. That undermines publishers’ ability to find the next Hulme, Stead or
Sargeson.
The Internet Archive are claiming that making these books freely available online is "fair use" and have
adopted the take-first, don't-ask approach that is prevalent in fair use territories.

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We will continue to work with the IP Team at MBIE to highlight these types of issues during the review of the
Copyright Act, however we feel it is important that the government be aware of the increasing challenges
being faced by the New Zealand publishing industry in the digital environment.

Ngā mihi,

9(2)(a)
Paula Browning
1982
Chief Executive

Cc :
Peter Dowling, President, Publishers Association of NZ
ACT

Jenny Nagle, CE, NZ Society of Authors

Lincoln Gould, CE, Booksellers Association of NZ

Marcus Smith, Senior Policy Advisor, MBIE
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50 Southwark St
London SE1 1UN
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[email address]

www.publishers.org.uk

By email only to:
Paul James, Chief Executive, Department of Internal Affairs  [email address]
cc:
Hon Jan Tinetti, Minister for Internal Affairs [email address]
Rachel Esson, National Librarian [email address]
1982

Tuesday 30th November 2021
ACT
Dear Mr James,
NATIONAL LIBRARY OF NEW ZEALAND – INTERNET ARCHIVE – OVERSEAS PUBLISHED
COLLECTION – DIGITISATION AND SUPPLY

I am writing to you regarding the agreement between the National Library of New Zealand (NLNZ)
and Internet Archive (IA) relating to the “donation” of some 600,000 titles in NLNZ’s Overseas
Published Collection (OPC) to Internet Archive. The intention is that these titles will be digitised
and made available publicly to internet users worldwide via IA’s Open Library.
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The Publishers Association is the member organisation for UK publishing, representing publishers
of all sizes and specialisms. Our members produce digital and print books, research journals and
educational resources across genres and subjects. In representing members on matters of law and
policy, our focus is on ensuring that the value of publishing and its economic and cultural
contribution are recognised.
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The UK is the largest exporter of books in the world. The value of UK publishing exports to New
Zealand in 2020 was approximately of NZD $20 million. In addition, our members have local
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operations in New Zealand through which they publish a diversity of local New Zealand authors.

Our members include major international publishers with huge back catalogues of copyright works
through to very small publishers entirely reliant on a number of books for their continuing
existence. They are all passionate about the capacity for books and reading to make life better for
people - to educate, illuminate, inspire and entertain. Part of this mission is making titles available
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through library collections around the world.

The OPC contains multiple titles and imprints in which our members own or exclusively control
copyright. These include titles which are protected by copyright and commercially available in
print and digital formats in multiple territories around the world. The fact that NLNZ may own a
copy of one of our members’ titles as part of its OPC, however, does not entitle it to deal with the
copyright as it sees fit. Copyright confers the exclusive right to undertake a number of restricted
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acts upon the owner.

We were therefore astonished to discover that NLNZ has entered into this agreement with IA without
considering  copyright  ownership  and  without  authorisation  from  right  holders  in  respect  of  the

The Publishers Association Limited is a company limited by guarantee incorporated in England and Wales. Registration number:
3282879. Registered Office: 50 Southwark Street, London SE1 1UN.

digitisation and intended making available of the copyright works to the public. An “opt-out” scheme
does not amount to authorisation in these circumstances – no permission has been granted in relation
to the exclusive rights conferred by copyright. Those that have engaged with it have felt they have no
other option and have been forced into the process unfairly.
We are aware of advice received by our counterpart organisations in New Zealand (privilege is not
waived) that NLNZ would be liable for copyright infringement in New Zealand by making the OPC 1982
available  to  IA  knowing  that  the  copyright  works  will  be  digitised  without  authorisation  and
requiring that they be made available without authorisation to users in New Zealand (and elsewhere
in the world). The concept of Controlled Digital Lending (CDL) under which NLNZ purports to take
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these steps does not form part of the law of New Zealand (nor that of the UK or EU) nor does it fall
within the permitted use provisions. IA also does not qualify for any of the library permitted uses.
Given the intention that the works will be made available worldwide, the activities complained of
may also lead to infringements of copyright in other jurisdictions. The unlawful action of IA and its
supporters risk harming the legitimate library ebook market and threatening author and publisher
income. Publishers are strong supporters of and suppliers to libraries but this cannot continue to be
the case for those which unilaterally override copyright laws.
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We therefore seek your written undertaking that NLNZ will withdraw from its agreement with IA
and not provide any copyright-protected works from the OPC to IA for the purposes of digitisation
and supply via the internet without the prior written consent of publishers. We very much hope that
you can  provide  this  reassurance  and  that  further action  by  publishers  around  the  world will  not
become necessary.
We would respectfully ask for your urgent consideration of this matter and your response no later
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than 14 December 2021. If you require any further information, please do not hesitate to contact me.
Yours sincerely,
THE
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Stephen Lotinga, Chief Executive
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1982

Sunday 11 July 2021
ACT

Tēnā koe Minister Tinetti,

Members of the New Zealand Society of Authors, and the Publishers Association of
New Zealand were shocked to learn on Friday that the National Library apparently
plans to handover hundreds of thousands of books from its collection to the Internet
Archive.
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The Internet Archive’s scanning and online distribution of books has been
condemned internationally as piracy on a massive scale.1 This activity by the Internet
Archive is currently the subject of a major lawsuit from international publishers,
representing authors from around the world, and supported by authors groups.2

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We represent thousands of authors and dozens of publishers from across New
Zealand. Our members have themselves encountered their creative works being
distributed illegally by the Internet Archive. We have previously documented these
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infringements to government, as illustrated by the attached letter to Minister Faafoi
(sent as part of the Review of the Copyright Act in October 2018).

This is piracy that challenges the livelihoods of Kiwi authors and publishers, working
hard in tough market conditions to bring Aotearoa the stories and creativity we all
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treasure. If the National Library were to follow through with this plan it would risk
jeopardising our standing globally as a place where creative industries can flourish. It
amounts to the National Library exporting its problem – washing its hands of it – to
become instead the problem of individual authors, publishers, family estates and
other rights holders around the world. This is not how New Zealand typically behaves
on the world stage, nor does it reflect our values as a responsible global actor.
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1 https://publishingperspectives.com/2020/06/usa-aap-member-publishers-file-copyright-infringement-
lawsuit-against-internet-archive/
2 https://publishers.org/news/publishers-file-suit-against-internet-archive-for-systematic-mass-scanning-and-
distribution-of-literary-works/

We understand the National Library intends to operate an ‘opt-out’ clause for rights
holders of books given to the Internet Archive. This mechanism has no standing in
law, here or abroad. Amongst other issues, it relies upon a presumed consent that
simply does not exist, as shown by the scale of the lawsuit from affected
rightsholders. Such a reckless mechanism also strikes us as being alarmingly at odds
with the values and behaviour we would expect from our National Library.
1982

For organisations such as ours to discover a decision of this magnitude for our
members by chance and at the last minute (through a media release in Scoop3)  ACT
underlines the sheer inadequacy of any stakeholder consultation from the National
Library. Our members invest vast amounts of time, energy and resource into working
alongside New Zealand libraries, including the National Library, to provide readers
with access to books. The Internet Archive invests nothing. This plan is an affront to
our local creative ecosystem and will satisfy no one.

We acknowledge that the National Library is under pressure to find a solution for
these books. We implore you to recognise that dumping them with the Internet
Archive is not the answer. Instead, we ask that you please withdraw this plan,
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abandon any partnerships with the Internet Archive, and instead sit down with local
stakeholders to find a lasting solution that is legally and ethically sound. We would
gladly contribute to such a process.

Ngā mihi nui,

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  THE
Mandy Hager, President, New Zealand Society of Authors

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Graeme Cosslett, President, Publishers Association of New Zealand


Attached: Letter to Minister Faafoi, 30 October 2018

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CC: Paul James, Chief Executive, Department of Internal Affairs

3 http://wellington.scoop.co.nz/?p=137534

3rd November 2021
To: Rachel Esson, National Librarian [email address]
1982
Paul James, Chief Executive, Department of Internal Affairs [email address]
Hon Jan Tinetti, Minister for Internal Affairs [email address]

ACT
NATIONAL LIBRARY OF NEW ZEALAND – INTERNET ARCHIVE – OVERSEAS PUBLISHED COLLECTION –
DIGITISATION AND SUPPLY
I  am  writing  to  you  concerning  the  agreement  announced  between  the  National  Library  of  New
Zealand  (NLNZ)  and  the  Internet  Archive  (IA)  for  the  donation  of  the  NLNZ  Overseas  Published
Collection of 600,000 books. The books are to be scanned and digitised by IA and then made available
via IA’s Open Library Scheme, accessible to internet users around the world.
I am the CEO of Hachette UK Ltd, a leading UK publishing group made up of ten autonomous publishing
divisions and over fifty imprints with a rich and diverse history. Hachette UK is owned by Hachette
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Livre, a global trade and educational publisher, and also has subsidiaries in India, Australia and New
Zealand (Hachette Aotearoa New Zealand).
In New Zealand we publish a diverse and celebrated list of local authors and brands including Margaret
Mahy, Nalini Singh, Nicky Pellegrino, J.P. Pomare, Donovan Bixley and Edmonds Cookbooks. We are
passionate  about  discovering  New  Zealand  talent,  working  with  established  authors  and  building
long careers.
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At Hachette UK, our mission is to make it easy for everyone, everywhere to unlock new worlds of
ideas, learning, entertainment and opportunity. Part of this mission is to provide our books to library
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collections around the world, from small primary schools to important national institutions.
We are proud that the NLNZ Overseas Published Collection contains a large volume of titles published
by us, our subsidiaries and sister companies. These include titles which remain protected by copyright
and are commercially available in print and digital formats in territories around the world. However,
the fact a library owns a copy of one of our books does not confer on it any rights to deal with the
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copyright in that book as it sees fit.
I was therefore astonished to learn from our colleagues at Hachette Aotearoa New Zealand that the
NLNZ  have  made  the  agreement  with  IA  without  asking  permission  of  the  copyright  owners.  The
“controlled digital lending” referred to in the NLNZ’s announcement of the agreement is illegal – a
manufactured concept not part of any permitted use provisions for libraries in New Zealand, the UK
or elsewhere. It is the subject of ongoing litigation in the New York District Court against IA in which
our sister company, Hachette Book Group (together with HarperCollins, Wiley and Penguin Random
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House) is the principal plaintiff.
The illegal actions of IA and its supporters risk destroying the legal library ebook market, harming
consumer sales and threatening author and publisher income. Many publishers, including Hachette
HACHETTE UK LTD Registered in England and Wales 2020173
Registered office: Carmelite House, 50 Victoria Embankment, London, EC4Y 0DZ

UK, are strong supporters of and suppliers to libraries but this cannot continue to be the case for those
which unilaterally override copyright laws.
We have received advice (privileged is not waived) that the NLNZ would itself be liable for copyright
infringement  in  New  Zealand  by  making  the  Overseas  Published  Collection  available  to  the  IA  for
digitisation and communication to the public. We very much hope for your written confirmation that
NLNZ  will  withdraw  from  its  agreement  with  IA  and  that  further  action  from  us  and  our  fellow
publishers around the world will not become necessary.
1982
Yours sincerely,
9(2)(a)
ACT
David Shelley
CEO, Hachette UK Ltd


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HACHETTE UK LTD Registered in England and Wales 2020173
Registered office: Carmelite House, 50 Victoria Embankment, London, EC4Y 0DZ

1982

30 November 2021
ACT

Paul James
Chief Executive, Department of Internal Affairs
[email address]

Hon Jan Tinetti
Minister for Internal Affairs
[email address]

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Rachel Esson
National Librarian
[email address]

Dear Mr. James, Hon. Tinetti, and Ms. Esson:
NATIONAL  LIBRARY  OF  NEW  ZEALAND  –  INTERNET  ARCHIVE  –  OVERSEAS
OFFICIAL
PUBLISHED COLLECTION – DIGITISATION AND SUPPLY
1.
I write on behalf of the Elsevier companies worldwide.  For more than 140 years, Elsevier
THE
has supported the work of its research and health partners.  Researchers and healthcare
professionals  rely  on  our  2,500+  journals,  including  The  Lancet  and  Cell;  our 40,000
book titles; and our iconic reference works, such as Gray's Anatomy.
2.
We are sending this letter to you concerning the agreement which the National Library
of  New  Zealand  (NLNZ)  has  announced  with  Internet  Archive  (IA).    We  have  been
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alerted to this matter by the Publishers Association of New Zealand, the New Zealand
Society of Authors and Copyright Licensing New Zealand.
3.
We  are  aware  that  under  the  agreement  NLNZ  will  donate  its  Overseas  Published
Collection of 600,000 books to IA.  IA proposes to convert these from print copies to
electronic copies.  Part of the agreement is that NLNZ is requiring IA to make available
the  digitised  versions  of  the  OPC  books  to  New  Zealanders  via  IA’s  Open  Library
Scheme.
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4.
The Open Library Scheme will be available not only to New Zealand users but also users
worldwide.
1

5.
Our company is a major international publisher with a huge back catalogue of copyright
works.  There are many other international publishers like us.
6.
Spread across NLNZ’s Overseas Published Collection are many titles and imprints for
which we are the copyright owners.  We know that our fellow publishing houses  are in
the same position as we are.
7.
The fact that NLNZ may own a copy of one of our books as part of its OPC does not
confer on  NLNZ any rights to deal with the copyright in that book as it thinks fit.  It is
1982
astonishing  to  us  that  a  supposedly  reputable  National  Library  should  enter  into  the
above agreement with IA:
ACT
(a)
Without considering copyright ownership; and
(b)
Without seeking prior written clearance from copyright owners for the digitisation
of  their  copyright  works  and  the  intended  making  available  of  those  copyright
works to the public.
8.
We have taken legal advice and consider that NLNZ is liable for copyright infringement
in New Zealand by making the OPC available to IA knowing that these copyright works
will  be  digitised  and,  indeed,  requiring  that  they  be  made  available  to  users  in  New
Zealand (and elsewhere in the world).  There is clearly a common design on the part of
NLNZ and IA.
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9.
Further, the Controlled Digital Lending referred to in NLNZ’s communications is not legal
nor within the y permitted use provisions for libraries in part 3 of the Copyright Act 1994.
Further, IA does not qualify for any of the library permitted uses.
10.  We are therefore seeking your written undertakings that:
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(a)
NLNZ will carry out a review to determine all the works in the OPC that are still
within copyright;
(b)
Will  immediately  withdraw  from  the  IA  contract  and  will  not  be  party  to  any
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provision of  copyright works from the OPC to IA for the purposes of digitisation
and supply via the internet, without the prior written consent of publishers.
11.  Please let us have these undertakings by 14 December 2021.
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Yours faithfully
William K. Zobrist
Vice President, Commercial & Sales Operations
Elsevier
9(2)(a)

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November 23, 2021

1982
The Chief Executive
Department of Internal Affairs
ACT
Wellington, NZ
VIA EMAIL: [email address]
Dear Mr. James:
I am the Chief Executive Officer for Hachette Book Group, Inc (HBG). On  behalf of HBG, I
write in response to your announcement that the National Library of New Zealand plans to
transfer 600,000 books from its Overseas Published Collections (OPC) to the Internet Archive
(IA).  My understanding is that the books are to be scanned and digitized by IA, then distributed
for free around the world through IA’s Open Library website.
INFORMATION

HBG is a leading US trade publisher. In one year, HBG publishes more than 1,550 adult books
and 420 books for young readers. We distribute those books in the US but in many cases also
around the world, and we sell these works through a variety of channels, including to library
collections and schools. Indeed HBG and its predecessor entities have long partnered with
libraries to provide communities with access to literary content, and HBG strongly supports
equitable access for all to a vibrant and diverse collection of literary resources.
OFFICIAL

While IA misleadingly holds itself out as a library, we believe its digitization scheme is blatant
copyright infringement.  As you are now no doubt aware, HBG and other US publishers have
THE
sued IA for copyright infringement. The illegal distribution of these digitized books risks
destroying the legal ebook market, which would have a dramatic impact not only author and
publisher income, but also on the very ability of publishers to invest in the creation of the content
that libraries wish to bring to their patrons. I will not belabor the point, as I understand that the
Association of American Publishers has already sent you a detailed letter setting out the illegality
of IA’s scheme. HBG joins strongly in that letter, and stands with our sister publishers at
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Hachette UK, Hachette Aotearoa New Zealand, and around the world to ask that the Minister,
the Department of Internal Affairs, and the National Librarian withdraw from the announced
arrangement with IA. To proceed otherwise would dramatically accelerate the damage already
being caused by IA’s illegal activities.

To be clear, IA is not authorized to digitize or distribute any titles for which HBG and its
divisions (including but in no way limited to titles published by Grand Central Publishing; Little,
Brown and Company; Little Brown Books for Young Readers; Hachette Nashville; Orbit;
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Perseus Books, including for example Basic Books and PublicAffairs; Workman; Storey; and
Timber Press) hold the copyright. HBG reserves all rights with respect to these works. Should

1290 Avenue of the Americas, New York, NY 10104

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NZLZ continue with its plan to donate works to IA, HBG’s titles should not be included in that
donation.

Respectfully Submitted,

  9(2)(a)
1982

Michael Pietsch

Cc:
ACT
Hon. Jan Tinetti, Minister for Internal Affairs (via email: [email address])
Rachel Esson, National Librarian (via email: [email address])
OPC notice address (via email: [email address])
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1290 Avenue of the Americas, New York, NY 10104

DocuSign Envelope ID: 49B79C1E-3C4E-4145-86B0-EAC0544FC8AE

1982

ACT

The Chief Executive
Department of Internal Affairs
WELLINGTON

23 November 2021

Dear Sir/Madam,
NATIONAL  LIBRARY  OF  NEW  ZEALAND  –  INTERNET  ARCHIVE  –
INFORMATION
OVERSEAS PUBLISHED COLLECTION – DIGITISATION AND SUPPLY
1.
We  are  sending  this  letter  to  you  concerning  the  agreement  which  the  National
Library  of  New  Zealand  (NLNZ)  has  announced  with  Internet  Archive  (IA).    We
have been alerted to this matter by the Publishers Association of New Zealand, the
New Zealand Society of Authors and Copyright Licensing New Zealand.
2.
We are aware that under the agreement NLNZ will donate its Overseas Published
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Collection of 600,000 books to IA.  IA proposes to convert these from print copies
to  electronic  copies.    Part  of  the  agreement  is  that  NLNZ  is  requiring  IA  to  make
available the digitised versions of the OPC books to New Zealanders via IA’s Open
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Library Scheme.
3.
The Open Library Scheme will be available not only to New Zealand users but also
users worldwide.
4.
Our company is an independent publisher with a huge back catalogue of copyright
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works.
5.
Spread  across  NLNZ’s  Overseas  Published  Collection  are  multiple  titles  and
imprints  for  which  we  are  the  copyright  owners.    We  know  that  our  fellow
publishing houses are in the same position as we are.
6.
The fact that NLNZ may own a copy of one of our books as part of its OPC does
not confer on NLNZ any rights to deal with the copyright in that book as it thinks fit.
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It  is  astonishing  to  us  that  a  supposedly  reputable  National  Library  should  enter
into the above agreement with IA:
(a)
Without considering copyright ownership; and

DocuSign Envelope ID: 49B79C1E-3C4E-4145-86B0-EAC0544FC8AE
(b)
Without  seeking  prior  written  clearance  from  copyright  owners  for  the
digitisation  of  their  copyright  works  and  the  intended  making  available  of
those copyright works to the public.
7.
We  have  taken  legal  advice  and  consider  that  NLNZ  is  liable  for  copyright
infringement  in  New  Zealand  by  making  the  OPC  available  to  IA  knowing  that
these  copyright  works  will  be  digitised  and,  indeed,  requiring  that  they  be  made
available to users in New Zealand (and elsewhere in the world).  There is clearly a
common design on the part of NLNZ and IA.
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8.
Further, the Controlled Digital Lending referred to in NLNZ’s communications is not
legal nor within the permitted use provisions for libraries in part 3 of the Copyright
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Act 1994.  Further, IA does not qualify for any of the library permitted uses.
9.
We are therefore seeking your written undertakings that:
(a)
NLNZ will carry out a review to determine all the works in the OPC that are
still within copyright;
(b)
Will  immediately  withdraw  from  the  IA  contract  and  will  not  be  party  to  any
provision  of  copyright  works  from  the  OPC  to  IA  for  the  purposes  of
digitisation  and  supply  via  the  internet,  without  the  prior  written  consent  of
publishers.
INFORMATION
10.  Please let us have these undertakings by 15 December 2021.
Yours faithfully

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9(2)(a)
Mary Cannam
Managing Director
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Pearson Head Office
80 Strand
London WC2R 0RL, UK
+44 (0)20 7010 2000
[email address]
pearson.com
1982


ACT
Paul James
Chief Executive
Department of Internal Affairs
WELLINGTON
New Zealand

30 November 2021

Dear Mr. James,
INFORMATION
NATIONAL LIBRARY OF NEW ZEALAND  – INTERNET ARCHIVE – OVERSEAS PUBLISHED COLLECTION –
DIGITISATION AND SUPPLY
We are sending this letter to you concerning the agreement which the National Library of New Zealand
(NLNZ)  has  announced  with  Internet  Archive  (IA)  under  which  NLNZ  plans  to  donate  its  Overseas
Published  Collection  (OPC)  of  600,000  books  to  IA.  We  have  been  alerted  to  this  matter  by  the
Publishers Association of New Zealand, the New Zealand Society of Authors and Copyright Licensing
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New Zealand. We also have learned that the NLNZ has now announced that it intends to reconsider its
plans for the OPC given the copyright concerns raised by interested parties.
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We are aware that under the agreement with IA, IA proposes to convert OPC books from print copies
to electronic copies.  Part of the agreement is that NLNZ is requiring IA to make available the digitised
versions of the OPC books to New Zealanders via IA’s Open Library Scheme. The Open Library Scheme
will be available not only to New Zealand users but also users worldwide.
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Our company is a major international publisher with a huge back catalogue of copyright works. There
are many other international publishers like us.  Spread across NLNZ’s Overseas Published Collection
are  multiple  titles  and  imprints  for  which  we  are  the  copyright  owners.  We  know  that  our  fellow
publishing houses are in the same position as we are. The fact that NLNZ may own a copy of one of our
books as part of its OPC does not confer on NLNZ any rights to deal with the copyright in that book as
it thinks fit. It is surprising to us that a reputable National Library should enter into the above agreement
with IA without considering copyright ownership and seeking prior written clearance from copyright
owners  for  the  digitisation  of  their  copyright  works  and  the  intended  making  available  of  those
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copyright works to the public.
We consider the NLNZ plans with respect to the OPC as a violation of New Zealand copyright laws by
making  the  OPC  available  to  IA  knowing  that  these  copyright  works  will  be  digitised  and,  indeed,
requiring that they be made available to users in New Zealand (and elsewhere in the world).  Further,

the  Controlled  Digital  Lending  referred  to  in  NLNZ’s  communications  is  not  legal  nor  within  the
permitted use provisions for libraries in part 3 of the Copyright Act 1994.  Further, IA does not qualify
for any of the library permitted uses.
In your reconsideration of the NLNZ plans, we are seeking your written undertakings that:
(a)
NLNZ will carry out a review to determine all the works in the OPC that are still within
copyright;
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(b)
Will immediately withdraw from the IA contract and will not be party to any provision of
copyright  works from  the OPC  to  IA  for  the  purposes  of  digitisation  and  supply  via  the
internet, without the prior written consent of publishers.
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Please let us have these undertakings by 15 December 2021.
Yours faithfully,
9(2)(a)
Sharon Hague
Managing Director
INFORMATION
UK Schools

cc. Hon Jan Tinetti, Minister for Internal Affairs [email address]
Rachel Esson, National Librarian [email address]

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  24 Bedford Row, London WC1R 4EH
  E [email address]
  T9(2)(a)

www.societyofauthors.org

To Hon Jan Tinetti – Minister for Internal Affairs
  Rachel Esson – National Librarian

1982
30 September 2021

Dear Jan Tinetti and Rachel Esson,
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The Society of Authors (UK) is very concerned to hear about the plans to digitise 600,000+ books from the
National Library of New Zealand’s collection for use by Internet Archive, irrespective of whether or not
they’re in copyright. Members of our Society, as well as many authors who are not members, greatly value
the copyright laws that make it possible for us to earn a living from our work. This right seems to be so basic
a natural good, so obviously and clearly just and proper, that it’s impossible to imagine a scheme like this
being proposed in any other field of human life.
‘Yes, we know you cure the sick, but you’d probably go on doing it even without a salary. So, from this
week on, no more pay.’
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‘Just carry on making cars. That’s fine. But we’re not going to pay you for them, because then they’d cost
much more to the general public.’
‘You’re doing a great job on your farm. Good healthy food for everyone. We’ll take it away for nothing, and
we won’t even charge you for the transport costs.’
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Libraries are the very heart of a nation and a culture’s knowledge of itself and understanding of the world.
It’s impossible to overstate their value. We authors who write the books on your shelves are inveterate,
habitual, lifelong users of libraries, and all of us share a gratitude and appreciation of the work that librarians
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do in preserving our work and promoting reading in every part of society. The one thing that makes this link
between us so valuable is our sense that libraries understand the nature of our work, that they know that the
vast majority of authors do not make fortunes from their books, that they share with us the belief that a
modest but secure reward can be the foundation for works of imperishable greatness.
To find that a great national library like that of New Zealand is collaborating in a scheme to break
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the cherished copyright laws and give our work away for nothing is profoundly shocking. None of our
11,000+ members have been consulted about this plan or asked for their consent. Digitising old out-of-
copyright books is one thing, and we can all see the benefit of that; but taking rightfully earned money out of
the pockets of living writers is quite another. Please let us, and writers in every part of the world whose
works you are planning to use for nothing, know that you’re going to change your mind about this iniquitous
scheme, and return to the principle of paying fairly for the use of our work.
9(2)(a)
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Philip Pullman
President of the Society of Authors United Kingdom

15 September 2021
The Minister of Internal Affairs,
Hon Jan Tinetti
Chief Executive, Department of Internal Affairs
Mr Paul James
ACT 1982
Via email :
[email address]
[email address]
Tēnā kōrua,
NATIONAL  LIBRARY  OF  NEW  ZEALAND  –  INTERNET  ARCHIVE  –  AGREEMENT  TO
DISPOSE OF OVERSEAS PUBLISHED COLLECTIONS
1.
We are writing to you concerning the written agreement which the National Library of
INFORMATION
New Zealand (NLNZ) has entered into with the Internet Archive (IA) in relation to the
Overseas Published Collections (OPC) held by NLNZ.
Background
2.
From  reviewing  the  material  available  on  this  agreement  as  well  as  various  public
statements and correspondence from both the National Librarian and the Minister, it has
become very clear to us that, prior to entering into this agreement, NLNZ has failed to
adequately consider the issue of copyright infringement liability.
3.
As  a  result  of  this  agreement,  NLNZ  is  now  unquestionably  liable  for  copyright
infringement in the New Zealand courts.  This is a very serious issue and we are writing
to put DIA and the Minister on notice of that liability and the consequences.
4.
This letter is being sent on behalf of the Publishers Association of New Zealand, New
Zealand Society of Authors and Copyright Licensing New Zealand.
5.
We  have  alerted  our three  organisations’  equivalents  in  other  countries to  this  illegal
action and are collating their written support. These organisations represent the owners
of copyright in books which make up the OPC, being some 600,000 books purchased
and held by NLNZ.
6.
We have obtained a full list of the OPC.  It is clear that a very significant proportion of
the books are still in copyright.
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1

(1)  The Agreement with IA
7.
The terms of the agreement and the intended joint actions of NLNZ and IA have been
made  very  clear  in  various  public  statements  by  the  National  Librarian  and  in  letters
written by Minister Tinetti.
8.
NLNZ has agreed to donate the OPC to IA.  As part of the agreement, IA will take the
books  from  NLNZ  and  digitise  these  to  convert  them  from  print  copies  to  electronic
copies.  NLNZ has obtained assurances from IA that it will make available the digitised
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versions of the OPC books to New Zealand users via its Open Library Service.  Minister
Tinetti’s correspondence (referred to later) confirms all of this.
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9.
It is clear that, as part of meeting the undertakings and commitments to NLNZ, IA will
make available the digitally-copied books via its Open Library Service website.  In order
for  New  Zealand  users  to  have  access  to  the  digitised  books,  IA  will  need  to
“communicate” these works to New Zealand users by enabling New Zealand users to
view these works online.  In doing so, users in New Zealand will download the works
temporarily on to their computers, tablets, mobile phones and devices for subsequent
download, use and re-communication of parts (or the whole) of the digitised books.
(2)  Digitising and Use of Copyright Works Without Consent
10.  The intended outcome of NLNZ’s agreement with IA unquestionably involves copyright
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infringement  in  New  Zealand.    Copyright  owners  (authors  and/or  publishers  of  each
individual work) have, under the Copyright Act 1994, the exclusive right to digitise (copy)
their  works.1    Also  copyright  owners  have  the  exclusive  right  to  “communicate”  their
works in New Zealand - i.e. to transmit or make available the works electronically via the
internet to users.2
11.  At no time have copyright owners in works comprising the OPC given consent to NLNZ
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or to IA to the digitising (copying) of their works.
12.  At no time have copyright owners in works comprising the OPC given their consent to
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communication of their copyright works by IA to users in New Zealand.
13.  NLNZ may possibly have thought that, because it is not digitising the works and because
it will not be communicating the books to users in New Zealand, that it has no liability.
If this were the case, NLNZ is sadly mistaken.
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14.  The following is now well-established law.
(3)  Joint Tortfeasor Liability
15.  It is clear that NLNZ is furthering the acts which will amount to copyright infringement in
New Zealand by making the books available to IA, knowing that they will be digitised
and indeed requiring IA to make these available to users in New Zealand.  Further, there
is clearly a common design on the part of NLNZ and IA.  The very arguments that NLNZ
and the Minister are now using to “sell” to the public and to authors and publishers on
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the  “advantage”  of  the  agreement  show  that  common  design.  These  are  set  out  on

1
Copyright Act 1994 s 30
2
Copyright Act 1994. s 33
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1982
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INFORMATION
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1982
Rachel Esson
National Librarian
Te Puna Mātauranga o Aotearoa | National Library of New Zealand
ACT
By email: [email address]
27 October 2021
Dear Rachel,
INFORMATION
Thank you for your email dated 13 October and I apologise for the delay in responding to
you.
As you will know from the letter from the Australian Society of Authors (ASA) dated 27 July
2021 to the Minister for Arts, Culture and Heritage and the Minister of Internal Affairs and
copied to you, the ASA was disappointed to hear of the decision of the National Library of
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New Zealand (NLNZ) to gift titles from its Overseas Publications Collection to Internet
Archive.  Similarly, the Australian Publishers Association (APA) does not support this plan.
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The ASA and APA have no objection to the sharing of any out-of-copyright works, for which
permission is no longer necessary. It is the view of the ASA and APA, however, that in
scanning physical books still under copyright and making those books available for download
by users, without permission from rights holders, the Internet Archive is infringing copyright.
We are not comforted by the Internet Archive's assertion of ‘Controlled Digital Lending’,
which is simply loaning the book to one user at a time.
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We do not agree that this is “much like your public library does with eBook” as our public
libraries obtain ebooks under licences from publishers and pay the publisher a licence fee for
every ebook, a portion of which is on-paid to authors. Internet Archive does not enter into
any licences with authors or publishers and pays no such fee.
We regard libraries as allies of authors and publishers; and are dismayed at the decision by
the NLNZ to supply the Internet Archive.
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I understand the NLNZ is offering an opt-out to rights holders of books who do not wish for
their books to be donated, if those rights holders email you with a request and provide proof
of rights.  In our view, this approach is unreasonably shifting the onus of responsibility onto

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