“From the information I have seen, including the National Library’s press release announcing the agreement, and reporting on statements by The Publishers Association and Society of Authors, it is not clear to me how the National Library considers the proposed copying to be lawful,” said Paul Johns, a principal at AJ Park in Auckland.

“I understand that there are to be safeguards for copyright owners such as an opt-out mechanism and take-down procedures. However, I would hope that this is in addition to, and not instead of, a reasonable effort to not infringe copyright in the first place.”

Johns added that it may be possible that the National Library believes the Copyright Act 1994 has sufficient exemptions for libraries and archives. But based on the information available, he said he does not agree with such assessment. He reasons that if the publications in question are to be exported and copied by the Internet Archive overseas, then the issue of copyright infringement would not arise under New Zealand law.

What may have further stoked the fire of discontent is the fact that Internet Archive is currently involved in a copyright infringement court case in the United States. The case involves four major book publishers, namely, HarperCollins, Penguin Random House, Wiley and Hachette Book Group.

“If such legal action illustrates that the law or current commercial practices are not suitable for the modern digital environment, then it is up to governments and industry to find new models. This has already happened in the movie and recorded music industries where previous grave concerns over illegal peer-to-peer filesharing networks have largely been removed by the adoption of legal, revenue-generating streaming services,” Johns said.

As to the copying of mass-consumption books such as popular novels, Johns said this would plainly impact on the economic interests of publishers - unlike the National Library agreement.

“New models have already emerged for the sale and ‘lending’ of eBooks. I expect copyright law to develop to protect the economic interests of those profiting from those models while preserving tradition exemptions for legitimate libraries and archives,” he said. “How the Internet Archive, and digitization in general, fit into that is yet to be seen.”

Nevertheless, Johns believes the collaboration between the National Library and Internet Archive, if it will push through, will generally be beneficial.

He explained: “Making these publications more widely available, and in digital format rather than in archive hardcopy, seems to be of net benefit to readers and libraries. Fans of real paper may lament the loss of hardcopies to a distant foreign country, but in my view, the benefits outweigh this cost. The harm and benefits to authors and other copyright owners are more difficult to assess. It is not clear what proportion of the publications remain in copyright. The claimed average publication date of 1965-1969 suggests many will remain protected. Of those, it is not clear whether there is any true ongoing commercial value in the copyright or whether any actual commercial harm will result. The making available digitally of an obscure, out-of-print title would not seem to have any material economic effect. Given the apparent opt-out and take-down systems to be put in place, my view is that this is likely to be an overall beneficial project.”

A statement from the New Zealand National Library declared it will look into the issue amid the criticism and decide on its next move. Until then, the donation of the books to Internet Archive will not take place.