ARL Joins Letter to TPP Trade Ministers Asking for Release of Negotiating Texts

On Thursday, December 11, 2014, ARL joined a diverse coalition of forty-eight organizations and individuals in submitting a letter to the trade ministers of the twelve countries involved in the negotiations of the Trans-Pacific Partnership Agreement (TPP) calling for enhanced transparency and the release of the negotiating text.  This letter comes on the heels of the European Commission’s statement agreeing to increased transparency in its current negotiations in a trade agreement with the United States.

Currently, Australia, Brunei, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore, Vietnam and the United States are involved in the negotiations of the TPP, a large regional trade agreement. The agreement has been negotiated for the past five years and covers a trading area that comprises forty-percent of the world’s GDP; eventually it is intended to cover the entire APEC region. The final text of the TPP will bind all members to the agreement and make any changes extremely difficult. Even where the United States’ proposals do not seek changes to current law, some provisions could lock in standards and prevent reform.

The negotiations of the TPP have been conducted largely in secret and there has not been an official release of the negotiating text or proposals. While there have been several leaks of various chapters, including three leaks of the intellectual property chapter, these leaks have been fairly infrequent and have not reflected the most current state of the text. Furthermore, while full rounds of negotiations previously included stakeholder events, there is little information about where and when TPP negotiations are currently taking place.

Without transparency, it can be difficult to provide meaningful presentations or commentary when the texts are kept secret. As ARL and other groups have noted previously with respect to the TPP and other trade agreements, transparency is critical in the ability to comment on the negotiating text and “ensure the forging of an agreement that does not unfairly prejudice any stakeholders.” With respect to the Free Trade Area of the Americas Agreement (FTAA), after the consolidated negotiating text was made public and comments were invited, numerous library associations wrote positively regarding the open process for reviewing and commenting on the draft text.

In contrast to the TPP negotiations in which all negotiating parties have agreed to keep the texts secret, the European Commission recently agreed to publish the dates, locations, names and organizations it meets with and the topics of its discussions. With regard to the Trans-Atlantic Trade and Investment Partnership (TTIP) negotiations, the Commission intends to put forward the following actions:

  • Making public more EU negotiating texts that the Commission already shares with Member States and Parliament;
  • Providing access to TTIP texts to all Members of the European Parliaments (MEPs), not just a select few, by extending the use of a “reading room” to those MEPs who had no access to restricted documents so far;
  • Classifying less TTIP negotiating documents as “EU restricted”, making them more easily accessible to MEPs outside the reading room;
  • Publishing and updating on a regular basis a public list of TTIP documents shared with the European Parliament and the Council.

In its statement announcing enhanced transparency, the Commission noted that, “For people to regain trust in Europe, we have to open the windows wide and be more transparent about the way we work . . . The Commission intends to lead by example on transparency matters.”

The letter to TPP trade ministers, signed by organizations and individuals from across the TPP region, calls for the TPP negotiating countries to follow the lead of the European Commission and release the negotiating texts of the TPP:

The end of TPP negotiations now seems to be coming into focus. They have come down to high-level political decisions by negotiating countries, and the text is largely completed except for some resolutions on remaining landing zones. At this point, we know that there is a draft of the TPP that is mostly agreed upon by those negotiating the deal.

Today, we strongly urge you to release the unbracketed text and to release the negotiating positions for text that is bracketed, now and going forwards as any future proposals are made. The public has a legitimate interest in knowing what has already been decided on its behalf, and what is now at stake with our various countries’ positions on these controversial regulatory issues.

We call on you to consider the recent announcement from the European Commission as a welcome precedent to follow, thereby re-affirming your commitment to fundamental principles of transparency and public participation in rule making. The negotiations in Washington DC this week would provide the perfect opportunity for such a ground-breaking accord to be announced.

Best Practices for Orphan Works and Relationship to ARL’s Code of Best Practices

The Center for Media & Social Impact (CMSi) recently released its Statement of Best Practices in Fair Use of Collections Containing Orphan Works for Libraries, Archives, and Other Memory Institutions. This best practices document addresses fair use in collections that appear to contain a significant number of orphan works—works where it is difficult or impossible to identify or locate the rightsholder—focusing on digital preservation of and access to these collections. In reading the Orphan Works Best Practices, it is important to keep in mind that the document addresses collections that are likely to contain a significant volume of orphan works rather than necessarily about orphan works themselves.

The Orphan Works Best Practices can complement ARL’s Code of Best Practices in Fair Use for Academic and Research Libraries. The ARL Code of Best Practices focuses on fair use where the use is transformative, essentially justifying fair use with regard to particular uses. It does not focus on whether a work is an orphan or not; the orphan work status may enhance the case for fair use under some circumstances as noted in the document. The Orphan Works Best Practices, while noting in its introduction and description of fair use that the use of collections with orphan works is often transformative, the recommendations tend to focuses on fair use regarding preservation and access to collections containing orphan works, focusing less on the transformativeness of the use. Despite these differences, there are some areas of overlap between the documents.

The Orphan Works Best Practices notes in its first principle:

Fair use supports the digital preservation of materials in archival and special collections, without regard to their status as orphan works.

This principle is similar to the third principle of the ARL Code of Best Practices, which provides:

It is fair use to make digital copies of collection items that are likely to deteriorate, or that exist only in difficult-to-access formats, for purposes of preservation, and to make those copies available as surrogates for fragile or otherwise inaccessible materials.

The ARL Code of Best Practices also includes several limitations and enhancements to strengthen the case for fair use in preservation.

With respect to access, the Orphan Works Best Practices states:

Fair use supports professionals’ efforts to provide on-premises and online public access to archival and special collections that can reasonably be expected to contain significant numbers of orphan works, including collections that include other copyrighted materials. [. . .]

It then notes that this general principle should be applied together with best practices related to issues of acquisition, clearances, selective exclusions from access, curation, conditions on availability, dialogue with the public, and providing copies to members of the public.

On the issue of seeking permissions before providing access to digital collections of special and archival collection materials, the Orphan Works Best Practices recommends seeking permissions under certain special cases:

Memory institution professionals strongly believed that seeking permissions to provide access to materials was desirable in some particular cases. As a matter of legal doctrine, a fair user never is required to obtain a rightholder’s prior consent, but under some circumstances seeking such consent may be advisable to document the absence of market harm. Indeed, in order to sustain the strength of memory institutions’ fair use claims generally, many professionals believed it was desirable in certain special cases to seek permission before providing digital access. They believed that in particular instances they should refer to the best professional judgment of the community, reflected in the best practices below, to determine whether clearances should be sought. In the event that the institution decides to seek permissions, they can wisely use the Society of American Archivists’ 2009 “Orphan Works: Statement of Best Practices” as a guide to ways and means of doing so.

Seeking permissions for use: Make attempts to secure copyright clearance in certain situations where this is reasonable, especially those characterized by the significant presence in the collection of the following types of works:

  1. Significant clusters of items traceable to a known or easily identifiable copyright owner (or groups of related owners);
  2. Significant clusters where contacting rights owners can be automated;
  3. Individual items representing works that have readily identifiable and significant market value, including material related to high-profile individuals;
  4. A predominance in the collection of materials created within 25 years.

It is important to note that the Orphan Works Best Practices document does not suggest that clearances be sought in all circumstances or even most. The document repeatedly notes that it may be advisable in “certain special cases” or “particular instances” or “particular cases.” While seeking permissions for an orphan work itself is obviously difficult since the rightsholder may be difficult or impossible to locate, this section seems to address circumstances where a collection may have a large number of orphan works, but also a large number of works where the rightsholder is traceable.

The ARL Code of Best Practices overlaps in some ways with this portion of the Orphan Works Best Practices. The ARL Code addresses the creation of and access to digital collections, stating (in relevant part) that:

PRINCIPLE:

It is fair use to create digital versions of a library’s special collections and archives and to make these versions electronically accessible in appropriate contexts.

LIMITATIONS:

  • Providing access to published works that are available in unused copies on the commercial market at reasonable prices should be undertaken only with careful consideration, if at all. To the extent that the copy of such a work in a particular collection is unique (e.g., contains marginalia or other unique markings or characteristics), access to unique aspects of the copy will be supportable under fair use. The presence of non-unique copies in a special collection can be indicated by descriptive entries without implicating copyright.

[. . .]

ENHANCEMENTS:

  • The fair use case will be even stronger where items to be digitized consist largely of works, such as personal photographs, correspondence, or ephemera, whose owners are not exploiting the material commercially and likely could not be located to seek permission for new uses.

[. . .]

The ARL Code of Best Practices supports providing access to digital versions of special and archival collections “in appropriate circumstances.” Where the collections include works likely to be orphan works, the case for fair use is enhanced. The ARL Code also provides a limitation that cautions against providing access to works that are available on the commercial market at a reasonable price. The ARL Code of Best Practices does not address seeking permissions, but the recommendation in the Orphan Works Best Practices to seek clearances were significant clusters of items are traceable to a known rightsholder may be appropriate where, for example, these works are available on the commercial market.

Of course, where the use is sufficiently transformative and is a fair use, even where a rightsholder may be readily traceable permissions need not be sought. Fair use is a right and permission from the rightsholder is unnecessary. Librarians must determine in each unique circumstance whether the use meets the standards of fair use and whether foregoing clearances is appropriate.

While both the Orphan Works Best Practices and ARL Code of Best Practices serve as important guidance, fair use decisions must be determined on a case-by-case basis. Thus, while the Orphan Works Best Practices may recommend that professionals seek permissions to provide access under some circumstances, at the end of the day memory institution professionals are the ones who must ultimately make the decision as to whether a use is fair and whether permissions should be sought.

 

ARL Joins Amicus Brief in Garcia v. Google Copyright Case

On Tuesday, November 25, the Association of Research Libraries (ARL), along with the American Library Association, Association of College and Research Libraries, and other technology and free speech organizations, joined an amicus brief authored by the Electronic Frontier Foundation in Garcia v. Google after the Ninth Circuit agreed to rehear the case en banc.

Earlier this year, a Ninth Circuit panel ruled 2-1 in favor of Cindy Lee Garcia, an actor in the film Innocence of Muslims, who asserted a separate copyright interest in her performance after being tricked into appearing in a five-second clip of the film and subsequently sought takedown of the film from YouTube.  While the district court refused to order takedown, the Ninth Circuit reversed, ordering Google, which owns YouTube, to take down — and keep down — the video.

The amicus brief argues that copyright law disfavors Garcia’s claim, that requiring service providers to monitor “blacklisted” content sets a dangerous precedent for online speech, and that finding a separate copyright interest for Garcia’s five second appearance would harm the expectations of content owners and increase the number of orphan works.

Misconceptions About GSU Electronic Reserves, Coursepacks and the Media Neutrality Doctrine

In recent testimony (both written and oral) at the House Judiciary Subcommittee on Courts, Intellectual Property and the Internet Hearing on Copyright Issues in Education and for the Visually Impaired, Allan Adler, representing the Association of American Publishers, asserted that in the Georgia State e-reserves case, the Eleventh Circuit erred in rejecting applicability of the media neutrality doctrine, the principle that copyright law should apply in a similar manner to similar works in different media. Invoking the media neutrality doctrine, Mr. Adler essentially argued that the “coursepack” cases – Basic Books Inc. v. Kinko’s Graphics Corp. and Princeton University Press v. Michigan Document Services – should control and that the use of copyrighted material in Georgia State’s e-reserves was not fair use. This argument ignores several important points regarding the facts of the case, including the fact that the coursepack cases were distinguishable on grounds that had nothing to do with media neutrality.

First, the coursepack cases do not apply because material placed in electronic reserves are not the equivalent of material that is collected and bound together in a coursepack. A coursepack is like an anthology sold to all the students in a course, which the students can place on their bookshelves and continue to use long after the end of the course. By contrast, in an e-reserves system, the university provides students with temporary access privileges that terminate at the end of the semester. A student can continue to access the materials that were in the course e-reserves only if the student became the volitional actor by printing out the materials while she still had access to them. That copying by a student for her personal use unquestionably is a fair use. The media neutrality doctrine applies only in cases where the cases are truly analogous.

Additionally, the coursepack cases are not controlling because the circumstances of those cases were very different than the facts in Georgia State. In particular, the coursepack cases clearly involved commercial, for-profit copy shops and the coursepacks were sold to students for a profit. By contrast, the e-reserves at issue were run by Georgia State University, a non-profit educational institution and the use was also a non-profit, educational use. This distinction is significant under the first fair use factor which looks at “the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes.” As the Eleventh Circuit pointed out in rejecting the coursepack cases that in these cases:

. . . the nontransformative, educational use in question was performed by a for-profit copyshop, and was therefore commercial . . . [Courts have] refused to allow the defendants, who were engaged in commercial operations, to stand in the shoes of students and professors in claiming that their making of multiple copies of scholarly works was for nonprofit educational purposes.

However, in both of the coursepack cases, the courts expressly declined to conclude that the copying would fall outside the boundaries of fair use if conducted by professors, students, or academic institutions. See Princeton University Press, 99 F.3d at 1389 (“As to the proposition that it would be fair use for the students or professors to make their own copies, the issue is by no means free from doubt. We need not decide this question, however, for the fact is that the copying complained of here was performed on a profit-making basis by a commercial enterprise.”); Basic Books, 758 F. Supp. at 1536 n.13 (“Expressly, the decision of this court does not consider copying performed by students, libraries, nor on-campus copyshops, whether conducted for-profit or not.”).

Reliance on the coursepack cases is therefore misguided as they involved off-campus, for-profit copy shops rather than non-profit educational institutions. The courts in these coursepack cases explicitly note that the holdings of these cases do not reach the issue of copying by students, professors, libraries, or the academic institutions. In Georgia State, the e-reserves system was clearly run by the university. The coursepack cases are therefore distinguishable based on the analysis done under the first fair use factor.

Additionally, the coursepack cases are clearly not binding precedent on the Eleventh Circuit. These cases were decided in different jurisdictions – in a district court in New York and by the Sixth Circuit – and therefore not controlling. While the decisions in these cases may have had persuasive value, even if they had analogous fact patterns such opinions would not bind the Eleventh Circuit.

Finally, the decisions are more than 15 years old. Fair use jurisprudence is always evolving. There is no way to know if courts in the Second and Sixth Circuits would reach the same conclusion today that they reached in the last millennium.

While the media neutrality doctrine is an important copyright principle, it – and the coursepack cases – simply do not apply in the Georgia State decision. The Eleventh Circuit correctly rejected this holdings in this line of cases when considering the fair use of Georgia State’s e-reserves system.

USA FREEDOM Act Fails to Advance in Senate

Cross-posted from ARL News

ARL is disappointed that the US Senate failed to advance the USA FREEDOM Act (S. 2685), a bill that would have provided meaningful reform to current National Security Agency (NSA) surveillance practices and protect civil liberties. A November 18, 2014, evening vote on Senate Majority Leader Harry Reid’s (D-NV) cloture motion to proceed with the USA FREEDOM Act fell two votes shy of the necessary 60 votes.

The USA FREEDOM Act, reintroduced by Senate Judiciary Committee Chair Patrick Leahy (D-VT) in July, would have ended the current practice of bulk collection of phone records and prevented bulk collection of other records under Section 215 of the USA PATRIOT Act, also known as the “library records” or “business records” provision. Additionally, S. 2685 included several reforms to the Foreign Intelligence Surveillance Court (FISC), such as requiring unclassified summaries of FISC opinions with information necessary to understand the impact on civil liberties and creating a Special Advocate position charged with protecting privacy and civil liberties. Leahy’s bill also included enhanced transparency provisions.

The USA FREEDOM Act had broad support of advocacy groups and technology companies. The bill also gained support from key individuals, including President Obama, Director of National Intelligence James Clapper, and Senate Intelligence Committee Chair Dianne Feinstein (D-CA).

Section 215 of the PATRIOT Act will expire in June 2015 unless the US Congress votes to reauthorize the provision, and a continued fight over this provision is expected. Last year, revelations about the NSA program, including the breadth and scope of bulk collection of data, raised serious concerns regarding curtailment of civil liberties and the compatibility of these programs with the Fourth Amendment to the US Constitution. Even prior to these disclosures, the library community expressed reservations regarding overly broad national security powers and has repeatedly urged for necessary reforms.

While ARL is disappointed that the US Senate failed to address the serious civil liberties concerns raised by NSA surveillance practices and bring the USA FREEDOM Act to a vote, the Association remains hopeful that meaningful reform can still be achieved as the fight over bulk collection of records continues. ARL is grateful to Chairman Leahy for his leadership on NSA reform and looks forward to continuing to work with his and other offices on these important civil liberty issues in the future.

LCA Statement for House Judiciary Subcommittee Hearing on Education and Visually Impaired

Today, November 19, 2014, the House Judiciary Subcommittee on Courts, Intellectual Property and the Internet will continue its copyright review with a hearing on “Copyright Issues in Education and for the Visually Impaired.” Witnesses for the hearing include Jack Bernard, Associate General Counsel, University of Michigan; Allan Adler, General Counsel, Association of American Publishers; Scott LaBarre, State President, Colorado, National Federation for the Blind; and Roy Kaufman, Managing Director, New Ventures, Copyright Clearance Center.

In advance of the hearing, LCA submitted a statement for the record. The statement discusses the exceptions to the Copyright Act enabling libraries to support educational institutions and concludes that revision of these provisions is unnecessary. It also discusses the Chafee Amendment and fair use doctrine, provisions allowing libraries to provide accessible format copies to the print disabled.

Senate to Vote on Future of USA FREEDOM Act

Today, November 18, 2014, the U.S. Senate is expected to vote on a cloture motion by Majority Leader Harry Reid (D-NV) on the USA FREEDOM Act (S.2685), determining whether the Senate will move forward with a vote on this important piece of legislation. The motion needs sixty votes to proceed to the floor. Senator Leahy (D-VT) re-introduced a new version of the USA FREEDOM Act on July 29, 2014, which includes significant improvements over the version passed in the House (H.R. 3361) in May. Leahy’s bill, which has bipartisan support, provides for meaningful reform and protects civil liberties.

Leahy’s bill would end the current practice of bulk collection of phone records and prevent bulk collection of other records under Section 215 of the PATRIOT Act, also known as the “library records” or “business records” provision. It would also make several reforms to the FISA Court, such as requiring that unclassified summaries of FISC opinions include information necessary to understand the impact on civil liberties and create a Special Advocate position charged with protecting privacy and civil liberties. Leahy’s version of the USA FREEDOM Act also includes enhanced transparency provisions.

ARL, along with a broad coalition of advocacy groups, supports this bill and has called for swift passage of this new version, without any dilution or amendment. The White House has now endorsed the bill, as well.

Senator Leahy’s USA FREEDOM Act represents a significant step forward in reforming NSA surveillance practices. ARL urges the Senate to move forward on the USA FREEDOM Act and pass the bill in its current form.

Senate Majority Leader Reid Moves USA FREEDOM Act One Step Closer

On Wednesday, November 12, 2014, Senate Majority Leader Harry Reid (D-NV) filed a motion for cloture on the USA FREEDOM Act, bringing the legislation one step closer to passage. Senator Patrick Leahy (D-VT) introduced a revised version of the bill in July 2014 which includes significant improvements over the version passed by the House of Representatives (H.R. 3361) on May 22, 2014.

Leahy’s version of the USA FREEDOM Act includes more effective language to end bulk collection and protect civil liberties as well as strengthened oversight and transparency provisions. The bill garnered bipartisan sponsorship and has a long list of supporters, including ARL.

ICYMI: President Obama Supports Net Neutrality, Urges Title II Reclassification

On November 10, 2014, President Obama issued a strong statement in support of net neutrality. In his statement, Obama recommended bright-line rules in certain areas, including rules against blocking, throttling and paid prioritization and enhanced rules on transparency. He also recommends that the FCC reclassify consumer broadband services as common carriers under Title II of the Telecommunications Act. You can watch the video and read the statement here.

President Obama’s support for net neutrality and recommendations on bright-line rules mirror some of the principles advocated for by ARL and other higher education and library organizations in submissions to the FCC.

ARL and ALA File Comments Opposing E-Reader Waiver Extension and Disability Tax

On October 27, 2014, the Association of Research Libraries (ARL) and the American Library Association (ALA) filed comments* with the FCC opposing the petition for waiver extension by e-reader manufacturers. On January 28, 2014, the FCC granted a one-year waiver of its advanced communication services (ACS) accessibility rules for “basic e-readers” considered to be “single-purpose reading devices that consumers use for accessing text-based works (i.e., reading), not for other purposes such as ACS.” The e-reader manufacturers recently filed a petition requesting an extension of this waiver, which essentially creates a tax for disabled persons purchasing basic e-reader devices.

In the filing, ARL and ALA explain how basic e-readers are used, including for “co-primary uses” which allow the user to connect to the Internet and use the device to communicate with others via e-mail and social media services. ARL and ALA oppose the extension of the waiver, noting that denying the e-reader manufacturers’ petition “is consistent with the public interest. Finally, ARL and ALA argue that if a waiver is extended, that the FCC should narrow the scope of the waiver class and limit its duration. The full comments can be found here.

The comments focus on heavily on the public interest, noting:

As discussed above, the Kindles and other basic e-readers are capable of accessing ACS in potentially very convenient and useful ways. Access to these features on these devices, by disabled persons weighs heavily in the public interest. A denial of the waiver extension will increase public access to ACS through the Coalition’s e-readers. By requiring that the Coalition include accessible ACS functionality with the browser, the Commission will be supporting increased access for print-disabled members of the public through universally designed devices available to all consumers

Appallingly, the e-reader manufacturers defend their request for extension by arguing that persons with disabilities can purchase a more expensive device to address accessibility needs. ARL and ALA also point out that this proposal effectively creates a disability tax. Furthermore, not only would the proposal require a disabled person to pay more for a device with accessibility features, but such devices also have drawbacks such as heavier weight and less battery life:

Under the current e-reader ACS regime proposed by the Coalition and tentatively adopted by the Commission, disabled persons must pay a ‘device access tax’. By availing oneself of one of the ‘accessible options’ as suggested by the Coalition, a disabled person would pay at minimum $20 more a device for a Kindle tablet that is heavier and has less battery life than a basic Kindle e-reader. There is also some irony that the Commission’s current waiver rules would suggest that a blind person would need to purchase a device that is marketed for its screen with a high refresh rate, high resolution, and vibrantly colored screen in order to get the proper accessibility. In order to get the features that they do need, the blind will be forced to pay for an array of features from which they cannot benefit. It is completely inappropriate to ‘tax’ those with disabilities who seek information on the same terms at the sighted. By requiring that all of the Coalition’s products include accessible ACS, it opens a market for the print-disabled for the same e-readers at the same price points as for other sectors of the public.

ARL and ALA oppose extension of the waiver, but suggest that if the Commission does extend it, the Commission should amend the current waiver class and ensure that the extension is time-limited. ARL and ALA note that the “the current slate of basic e-readers offered by Coalition members do not fall under even this overly-expansive waiver class, sufficient evidence and the public interest weigh heavily in favor of modif[ication].” The comments suggest that one of the requirements be amended to read “the device is not offered or shipped to consumers with built-in ACS client applications, including any browser, and the device manufacturer does not develop ACS applications for its respective device” so that those e-reader devices that have a co-primary uses, such as to access e-mails, are not exempted. The comments note that with this amendment, “Any truly single purpose non-ACS devices will still fall under the proposed waiver class should the Coalition seek waiver in the future.”

*These comments were prepared in collaboration with students from American University Washington College of Law’s Glushko-Samuleson Intellectual Property Law Clinic*