The Society of Authors (SoA) is threatening legal action against the Internet Archive unless it stops what the writers’ body claimed is the unauthorised lending of books unlawfully scanned for its Open Library.

Set up in San Francisco 1996 to preserve pages published on the internet, the Internet Archive also collects digital books, offering borrowers access to hundreds of thousands of titles through its Open Library arm. Some are out of copyright, but the collection includes books from authors including AS Byatt, Kate Atkinson, Hilary Mantel, William Boyd, Philip Pullman and Iain Banks that are still in copyright and currently available to be borrowed in the UK.

According to its website, the organisation began digitising books in 2005, because “not everyone has access to a public or academic library with a good collection, so to provide universal access we need to provide digital versions of books”. Today the archive scans 1,000 books a day in 28 locations around the world, through its book scanning and book drive programmes – with the “ultimate goal of [making] all the published works of humankind available to everyone in the world”. Users can borrow up to five books at a time, with each loan expiring after two weeks.

The SoA, which represents more than 10,000 writers in the UK, called on the Internet Archive to “cease making available to UK users the unauthorised lending of scanned books” via Open Library.

In an open letter, the SoA said that in the UK, all scanning and lending must be authorised by the copyright owner. Despite this, users in the UK are currently able to borrow scanned copies of physical books from Open Library. “That is a direct and actionable infringement of copyright,” said the SoA. “Authors are not asked for permission before their work appears on Open Library, and they do not receive any royalties … We are calling on you to cease this practice, which … is unquestionably unlawful in the UK.”

Hilary McKay, who won the Costa children’s book award this month for her novel The Skylark’s War, has a string of books borrowable from Open Library, and is one of the open letter’s signatories.

“It is hard enough to make a living as a children’s writer, without this continual theft of our work,” she said. “In my case, and I’m sure others’, it has been going on for years. As fast as a publisher issues one take-down request another site comes up. I try to be generous, I give away as much as I can afford in books and money and time. However, I have control over that. I suggest the Internet Archive sets up an ‘opt-in’ list of writers who do not mind their work being used for free, without even acknowledgment or thanks. I suspect it will be a very short list.”

Tracy Chevalier, who is also a signatory, agreed: “I signed because I’m very concerned that under the guise of using the word ‘library’, an organisation is trying to legitimise making pirated copies of books available to the world. Real libraries pay the publisher and author for the right to lend ebooks. In addition, in the UK, authors also receive a Public Lending Right payment of 8.52p per loan,” said the Girl With a Pearl Earring novelist. “The Open Library does none of that – it has scanned physical copies of books without paying anyone for the privilege. So the creators of books are not getting paid for their work. And if we don’t get paid, eventually we’ll have to look for other ways to make a living. Many authors are already struggling to get by; this is making things even worse.”

Pointing out that British “authors’ earnings are in decline and many are struggling financially”, the SoA said that the Open Library’s actions have “the potential to destroy the ebook market and make it even harder for authors to make a living from their work”, as well as competing with “bona fide” UK libraries.

The SoA said that if it did not receive assurances from the Internet Archive by 1 February, it would immediately take measures to ensure that Open Library books could not be downloaded in the UK. If the library did not stop scanning books by UK authors without permission, the society would “have to consider legal action on behalf of our members to prevent this practice”.

“If that becomes necessary we shall be seeking damages for copyright infringement and payment of all legal costs,” said the SoA, which follows the American author organisation, the Authors Guild, in attacking the Open Library.

The Internet Archive said its practices appeared to have been misunderstood. “As a library, we work with authors, publishers, and booksellers to buy and lend books in responsible and controlled ways,” said the spokesperson, highlighting the fact that the Internet Archive is a signatory to the position statement on controlled digital lending by libraries. The statement argues that, thanks to the fair-use doctrine, a library can digitise and lend a title to its members, provided it loans only the number of copies it owned before digitisation (so if a hard copy of the book is checked out, the digital copy cannot be borrowed, and vice versa).

The position is supported by the Authors Alliance, which describes it as “a good-faith interpretation of copyright law for libraries considering digitising works in their collections and circulating the digitised title in place of a physical one”, but rejected by the Authors Guild, which calls it “neither controlled nor legal”, and by the SoA, which says that “this practice is definitely unlawful in the UK, where the fair use exception does not exist”.