Senate to Move Ahead with Vote on Fast-Track Legislation

On June 23, 2015, the U.S. Senate cleared the procedural hurdle of attaining 60 votes on a motion for cloture to move ahead with a vote on Trade Promotion Authority (TPA), also known as “fast-track” legislation.  Under “fast-track,” Congress grants the President the authority to sign trade agreements and Congress can only approve or reject these agreements in a straight up-down vote, meaning that it must take the agreement as a complete package and cannot amend the agreement.  As noted in a February 5, 2015 letter from the Library Copyright Alliance (LCA), fast-track authority limits Congress’ ability to meaningfully weigh in on an agreement, particularly given the lack of transparency in trade negotiations.  Notably, no trade agreement presented to Congress under fast-track legislation has ever been rejected.  TPA has been seen as critical in concluding negotiations of the Trans-Pacific Partnership Agreement (TPP), a large regional trade agreement that currently has twelve negotiating parties.

Today, the Senate voted 60-37 to proceed with a vote on TPA.  While the Senate had passed TPA in an earlier vote in May, that bill packaged fast-track legislation with Trade Adjustment Assistance (TAA), legislation that reduces the negative impacts of imports on certain sectors in the U.S.  On June 12, 2015, the House of Representatives took separate votes on TPA and TAA, voting to pass the TPA portion of the bundled package by a vote of 219-211 but rejecting TAA by 302 to 126.  The House then voted to separate the package and passed TPA in a standalone bill on June 18, with the intention of scheduling a vote on TAA at a later date.  Because the Senate had packaged TPA and TAA, the TPA went back to the Senate.  Although some critics expressed concerns over the separation of the two bills and suggested that TPA could not pass without TAA, the Senate reached its 60 vote threshold to move ahead with the vote which will likely occur later this week.

 

 

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New Advocacy and Public Policy Update

A new ARL Advocacy and Public Policy Update (June 18, 2015) is now available.  This issue covers key advocacy and public policy issues from mid-April to mid-June 2015 as well as a list of new ARL resources.  Below is the summary and contents from the update.  The full text is available here.

Issues concerning copyright and intellectual property include draft legislation proposing to make the US Copyright Office, now in the Library of Congress, an independent agency in the Executive Branch; a report by the Copyright Office on orphan works and mass digitization; action by the Copyright Board of Canada; and a revised policy by Elsevier concerning the sharing of research articles. The US House of Representatives acted recently on National Science Foundation (NSF) appropriations as well as reauthorization with a focus on reducing funding for the social and behavioral sciences. Intense activity on privacy and surveillance legislation in the US dominated much of the month of May with the expiration of key provisions relating to surveillance authorities of the Executive Branch. Items related to two international treaties—one concerning fast-track authority for the President to negotiate treaties and the second regarding exceptions for the visually impaired—remain key agenda items of the US Congress and the Administration. Finally, Dr. Billington announced that he will step down as Librarian of Congress on January 1, 2016.

Contents

  • Copyright and Intellectual Property
    • Proposal to Establish the Copyright Office as an Independent Agency
    • Orphan Works and Mass Digitization Report
    • Copyright Board of Canada Certification of Low Tariff
  • Elsevier Sharing Policy
  • Appropriations
    • NSF Funding and Reauthorization Privacy and Surveillance
  • Surveillance Reform
  • International Treaties
    • Trade Promotion Authority
    • Marrakesh Treaty
  • Librarian of Congress to Retire Jan.1, 2016
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Thoughts on Fair Use and the Copyright Office Report/Proposal on Mass Digitization

On June 4, 2015 the Copyright Office released its Report on Orphan Works and Mass Digitization. Previous coverage of the orphan works section of the report is available here and the Library Copyright Alliance’s response to the report is available here. This post focuses on the section of the report covering mass digitization and lays out concerns with the report’s proposal and treatment of fair use. The Copyright Office’s report proposes an extended collective licensing (ECL) system, and has issued a Notice of Inquiry requesting public comments, due on August 10, 2015.

Copyright Office Report and Proposed ECL Program

During the March 2014 orphan works roundtables, the general view was that ECL was not a workable solution and there was a lack of interest in pursuing this approach. Despite the opposition to or wariness of ECL, the Copyright Office is nonetheless recommending ECL.

The report suggests that mass digitization cannot be accomplished with the exception of narrow circumstances. The report acknowledges that courts have concluded that mass digitization for full-text search and access for the print-disabled are protected by fair use, but argue that these cases “do not extend to the wider dissemination of copyrighted works without permission or compensation.”

The Copyright Office’s report also discusses voluntary stakeholder agreements, concluding that such arrangements would not protect users from infringement claims by copyright owners that are not part of the agreement.

The Copyright Office proposes a pilot ECL program, limited to specific categories of works. The report suggests “that ECL makes the most sense for the following works: (1) literary works; (2) pictorial or graphic works published as illustrations, diagrams, or similar adjuncts to literary works; and (3) photographs.” The proposed program would be limited to uses “undertaken for nonprofit educational or research purposes and without any purpose of direct or indirect commercial advantage.” While the proposal would allow a for-profit entity to use the program, “it would not be permitted to generate revenue from the collection by, for example, displaying advertisements or charging fees.” According to the proposal, Copyright Office would be tasked with approving collective management organizations (CMO) as part of the ECL. The approved CMO would represent all rights holders, except for those that affirmatively opt-out. The proposal suggests that the proposed Google Books settlement can provide an example of how license agreements can be structured.

In terms of royalty payments, the report states that, “while a CMO should be permitted to deduct fees from the license payments it collects, such deductions should be limited to amounts reasonably necessary to cover specified operational costs.” Where a CMO fails to locate a rights holder who is owed royalties within a specified time period, the CMO should transfer the funds to a trust account. If the funds in the trust account remain unclaimed after three years, the CMO could deduct a reasonable fee and then distribute the balance to educational or literacy based charities.

The Copyright Office’s report does suggest a fair use “savings clause providing that nothing in the statute is intended to affect the scope of fair use.”

Mass Digitization and Fair Use

Unfortunately, notwithstanding the inclusion of a fair use savings clause, the report seems to mischaracterize the importance of fair use in many mass digitization projects. The report asserts that the ECL proposal is intended for “activity for which there is broad agreement that no colorable fair use claim exists: providing digital access to copyrighted works in their entirety.” The Copyright Office continues:

To the extent it could be argued that any individual aspect of a mass digitization project might by itself qualify as fair use (e.g., the underlying digital copying), we would expect that view to be reflected in the overall license fee negotiated between the CMO and the user. That is, where the parties agree that a particular use would likely be deemed fair under established law, the portion of the license fee pertaining to that activity would likely be at or near zero (emphasis added).

This paragraph raises a number of concerns. First, it assumes that the parties must agree that a use is fair and implies that a user must first discuss and negotiate with the CMO. Fair use is a right and a user conducting activities that are fair uses need not engage in any prior discussions or negotiations with rights holders. While there may be circumstances in which a user wishes to first notify or discuss a particular use with the rights holder, he or she is not required to do so.

Furthermore, even with a fair use savings clause, parties may not agree that a use is fair use. In the Authors Guild v. HathiTrust litigation, the Authors Guild asserted that where HathiTrust’s activities went beyond the scope of what is permitted under Section 108, the Copyright Act’s specific exception for libraries and archives (which contains a fair use savings clause), they could not be considered fair use. While the Second Circuit dismissed this argument in a footnote to its opinion, other plaintiffs may try to make similar arguments.

Moreover, in situations where precedent strongly favors an understanding that a particular use would be considered a fair use , the rights holders might argue that the precedent is wrongly decided. Some rights holders argue that the fair use right has been applied too broadly by the courts. During the orphan works roundtables, one participant compared recent fair use case law to Plessy v. Ferguson, the 1892 Supreme Court case that upheld the “separate but equal” doctrine until being overturned by Brown v. Board of Education in 1954. Relatedly, during the orphan works roundtables, there were repeated suggestions that there were only two cases—HathiTrust and Google Books, both of which were on appeal at the time of the roundtables—that supported mass digitization and could be overturned. As Jonathan Band pointed out at the roundtable, however, various other Circuit Courts of Appeals cases also support mass digitization. He noted that HathiTrust and Google Books were based on earlier cases such as Kelly v. Arriba Soft, Perfect Ten v. Amazon and A.V. v. iParadigms.

Finally, rights holders may attempt to distinguish precedent on the basis of minor factual differences.

Special Collections

It appears that the Copyright Office is interested pursuing an ECL pilot program for the very types of collections that libraries already digitize and allow access to under fair use. The report notes, “The Office is particularly interested in stakeholder views regarding examples of mass digitization projects that may be appropriate for licensing under the proposed pilot. These comments may include (but need not be limited to) descriptions of particular collections of copyrighted works (e.g., Depression-era photographs) that prospective users may wish to digitize and make available through ECL.”

Digitizing a collection of Depression-era photographs seems to be a great example of what would likely be fair use. This example suggests a special collection of works that are primarily orphan works. It is unlikely that the rights holders for such works could be identified and located. These works are not likely to be exploited commercially and digitizing them and making them accessible online would therefore not harm the original market for the works. Digitization projects involving special collections often include enhancements that make the collection more useful, such as the inclusion of metadata.

The ARL Code of Best Practices in Fair Use for Academic and Research Libraries sets forth limitations and enhancements for a library’s fair use case in the context of digitizing special collections and making them electronically accessible:

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 considerations, 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.
  • Where digitized special collections are posted online, reasonable steps should be taken to limit access to material likely to contain damaging or sensitive private information.
  • Full attribution, in a form satisfactory to scholars in the field, should be provided for all special collection items made available online, to the extent it is reasonably possible to do so.

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.
  • Libraries should consider taking technological steps, reasonable in light of both the nature of the material and of institutional capabilities, to prevent downloading of digital files by users, or else to limit the quality of files to what is appropriate to the use.
  • Libraries should also provide copyright owners with a simple tool for registering objections to online use, and respond to such objections promptly.
  • Subject to the considerations outlined above, a special collection should be digitized in its entirety, and presented as a cohesive collection whenever possible.
  • Adding criticism, commentary, rich metadata, and other additional value and context to the collection will strengthen the fair use case.
  • The fair use case will be stronger when the availability of the material is appropriately publicized to scholars in the field and other persons likely to be especially interested.

A number of libraries rely on fair use in the digitization of their special collections. For example, Duke University digitized a collection of historic TV commercials, called adViews. While Duke secured agreements from many of the rights holders of the commercials, it also relied on fair use because of the impossibility of identifying all rights holders of TV commercials. As is the case with many special collections, Duke enhanced its fair use position by adding additional videos to the collection featuring executives talking about TV advertising in the early 1960s as well as faculty members discussing the ways they used the materials in teaching.

Another great example is New York Public Library’s (NYPL) digitization of a collection of materials from the 1939 New York World’s Fair. The collection included records, documents, promotional photographs and other ephemera. As detailed by this Fair Use Week guest blog post by Greg Cram, Associate Director of Copyright and Information Policy for New York Public Library, it was extremely difficult to determine whether the works were in copyright and a good-faith search for rights holders “was time-consuming and, ultimately, fruitless.” Relying, in part, on statements and codes of best practices, as well as views of academics, NYPL conducted a fair use analysis and decided to “move forward with digitization of portions of the collection after balancing the education benefit of the undertaking against the risk that a rights holder might subsequently surface” and posted selections online. NYPL created a free iPad application to feature the digitized content and this application was named one of Apple’s “Top Education Apps” of 2011.

These are just two of the many examples where mass digitization projects have relied on fair use. Special collections are a prime example where fair use may provide a strong basis for undertaking these projects. In both of the cases above, it does not appear that rights holders have contacted the institutions to complain or ask that they limit the uses of the digitized works.

In sum, the Copyright Office’s proposed ECL pilot program is inappropriate for special collections.

 

 

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ARL Joins Coalition Asking House Appropriations Committee to Oppose Portions of Bill Threatening Implementation of Net Neutrality

On June 16, 2015, ARL joined a coalition of 64 public interest groups, civil rights and social justice organizations, and companies to oppose the portions of a House Appropriations bill that would threaten implementation of the FCC’s Open Internet Order, rules governing net neutrality that went into effect on June 12th.  Last week, a House Appropriations subcommittee voted in favor of the bill which includes provisions that would prevent the FCC from enforcing its Order until after litigation over the rules has ended and the full committee is expected to take up the bill this week.

The letter discusses the importance of net neutrality and cites the strong support for an open Internet.  It calls for the removal of provisions that would prevent enforcement of the FCC’s net neutrality rules, explaining:

These sections would gut the Open Internet Order, leaving the American people and economy vulnerable to blocking, discrimination, and other unreasonable practices of gatekeeper broadband providers.  These measures, buried in a spending bill that is 150 pages long, constitute a direct rebuke to the millions of people that asked for strong Net Neutrality rules.  By eliminating the FCC’s ability to protect Net Neutrality, this appropriations bill would have a chilling effect on our First Amendment rights and our economy.

 

 

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Net Neutrality Rules Take Effect

On Friday, June 12, 2015, the FCC’s Open Internet Order, rules governing net neutrality, went into effect.  The FCC published its rules in the Federal Register on April 13, 2015 which reclassified broadband Internet as a common carrier under Title II, thus ensuring that the Internet cannot be divided into “fast lanes” and “slow lanes.”  The rules ban blocking, throttling and paid prioritization.  It also prohibits unreasonable interference with an the ability to select and access lawful content, applications and services.

Although broadband providers that have sued over the Open Internet Order requested to “stay” the Order and prevent the FCC’s net neutrality rules from taking effect until after litigation concludes, the Court of Appeals for the D.C. Circuit denied this request.  The denial of the stay request allows the FCC’s Order to take effect and helps preserve the open character of the Internet.

The D.C. Circuit also ruled that the lawsuit should be heard in expedited fashion, which means that oral arguments could be heard by the end of the year.

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Bill to Amend Canada’s Copyright Act in Preparation for Accession to the Marrakesh Treaty Tabled in the House of Commons

On June 8, 2015, proposed amendments to Canada’s Copyright Act were tabled in the House of Commons. These amendments, contained in Bill C-65, the Support for Canadians with Print Disabilities Act, would amend the Copyright Act in order to prepare for implementation of and accession to the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled (“Marrakesh Treaty”).

This bill follows the April 21, 2015 budget proposal, which signaled an intention to amend the Copyright Act and accede to the Marrakesh Treaty. In that proposal, the Canadian government noted that accession to the Marrakesh Treaty would benefit the approximately 1 million blind or visually impaired Canadians.

Under Canada’s Copyright Act, Article 32 provides a limitation to allow for the creation and distribution of accessible format works for those with disabilities. The current provision broadly permits the creation of an accessible work for persons with a perceptual disability. It does not, however, permit the creation of a large print book. The current exception applies only where an accessible format is not commercially available. A non-profit organization may export an accessible format copy, but only where the author of the work is a Canadian citizen or permanent resident or a citizen or permanent resident of the country to which the copy is being sent. Copies may not be exported where the organization knows or has reasonable grounds to know that an accessible format is available in that country within a reasonable time and for a reasonable price. Royalties are owed by the organization making or sending the accessible format copy. The current copyright law also has an exception to the prohibition against circumvention of technological protection measures, but only where it does not “unduly impair” the technological protection measure.

Bill C-65 makes several changes to Article 32. One of the most significant changes is that it removes the prohibition on the creation of large print format as an accessible copy. Large print is an important type of accessible format because many of those who are visually impaired do not require audio formats or may not read Braille. For example, with age, individuals often require larger print. The Marrakesh Treaty broadly defines an “accessible format copy” and the removal of the prohibition against large print in Article 32, complies with the Treaty and will greatly benefit an aging population.

Another key change would allow the sending of accessible formats to other countries, regardless of the nationality of the authors of the works. Bill C-65 allows for the export of accessible format works to both Marrakesh Treaty countries as well as non-Marrakesh Treaty countries. It would allow for injunctions, but not damages, where the accessible format was exported to a country where it was commercially available within a reasonable time, for a reasonable price and located with reasonable effort. Where a work is exported to a Marrakesh Treaty country, the owner of the copyright bears the burden of demonstrating commercial availability. Where a work is exported to a non-Marrakesh Treaty country, the non-profit organization must also show that it had reasonable grounds to believe that it was not commercially available.

Additionally, Bill C-65 permits circumvention of technological protection measures, removing the condition that the technological protection measure not be unduly impaired. It instead provides that circumvention is permitted for the sole purpose of enabling those with perceptual disabilities, or non-profit organizations who serve them, to access accessible formats of the work.

Introduction of Bill C-65 is a key first step in acceding to the Marrakesh Treaty. The Marrakesh Treaty currently has 8 ratifications and will need 12 more for entry into force. In the United States, the Administration has been working on preparing its ratification package, but it has not yet been submitted to Congress.

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New Issue Brief on Fair Use in Text and Data Mining

ARL has a new issue brief on fair use in text and data mining.  The brief describes the role and usefulness of text and data mining, a short background on fair use, and analysis of fair use, including eight cases that support the use of fair use in text and data mining.  This brief is available here.

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Copyright Office Releases Report on Orphan Works and Mass Digitization; Recommends Burdensome Legislation

On June 4, 2015, the Copyright Office released its Report on Orphan Works and Mass Digitization, including recommendations for legislation on orphan works and the creation of an extended collective licensing (ECL) regime for mass digitization. This post focuses only on the Copyright Office’s recommendations on orphan works.  This blog post is also available as an issue brief here.

Report on Orphan Works

The Copyright Office’s report asserts that “the orphan works problem is widespread and significant” and that “anyone using an orphan work does so under a legal cloud, as there is always the possibility that the copyright owner could emerge after the use commenced and seek substantial infringement damages, an injunction, and/or attorneys’ fees.” The report sets forth the problem of orphan works, noting:

The uncertainty surrounding the ownership status of orphan works does not serve the objectives of the copyright system. For good faith users, orphan works are a frustration, a liability risk, and a major cause of gridlock in the digital marketplace. The consequences of this uncertainty reverberate through all types of uses and users, all types and ages of works, and across all creative sectors. By electing to use a work without permission, users run the risk of an infringement suit resulting in litigation costs and possible damages. By foregoing use of these works, a significant part of the world’s cultural heritage embodied in copyright-protected works may not be exploited and may therefore fall into a so-called “20th-century digital black hole.”

The report acknowledges that fair use jurisprudence has moved in a direction that favors the use of orphan works, notably the HathiTrust and Google Books litigation. It notes that this evolution of fair use case law has prompted groups such as the Library Copyright Alliance, of which ARL is a member, to shift its position away from advocating a legislative solution to the orphan works problem. However, the Copyright Office rejects the idea that fair use can provide an adequate solution because:

The judiciary has yet to explicitly address how to apply fair use to orphan works. Thus, the informed and scholarly views of some commenters as to the application of fair use in specific orphan works situations do not yet have as their basis any controlling case law. Also, fair use jurisprudence is, because of its flexibility and fact-specific nature, a less concrete foundation for the beneficial use of orphan works than legislation, and is always subject to change . . . The Office does not believe that reliance on judicial trends, which may turn at any point, is a sufficient basis to forgo a permanent legislative solution.

The Copyright Office also rejects the role of best practices in an orphan works solution, criticizing the ARL Code of Best Practices as well as the Statement of Best Practices in Fair Use of Orphan Works for Libraries & Archives because they fail to “provide guidance on how a library should go about determining if a work is orphaned in the first place, beyond the lack of commercial exploitation by the owners and the likelihood that the owners could not be located.” Additionally, the report criticizes fair use best practices because they “often are arrived at absent consultation with authors and other copyright owners, and therefore run the risk of being more of an aspirational document—what a community believes fair use ought to be – than a descriptive one.”

Rejecting fair use as a solution, as well as other models such as a government license, the Copyright Office proposes a model that provides for limitations on liability.

Discussion Draft for Legislation

The discussion draft for legislation on orphan works is largely based off the Shawn Bentley Orphan Works Act of 2008, which was passed by the Senate, but failed in the House of Representatives.

Limitations on Remedies

The Copyright Office’s draft legislation would limit remedies to reasonable compensation, defined as the amount a willing buyer and willing seller in the position of the user and the rightholder would have agreed to immediately before the infringement began, for eligible users who can establish that they engaged in a good faith diligent search.

The order to pay reasonable compensation does not apply to nonprofit educational institutions, museums, libraries, archives or public broadcasting entities where 1) the infringement was performed without any purpose of direct or indirect commercial advantage; 2) the infringement was primarily education, religious or charitable in nature; and 3) the infringer ceases to use the work after receiving notice of the claim of infringement and having opportunity to conduct a good faith investigation of the claim.

Injunctions may be granted, subject to an exception where the use is recast, transformed, adapted or integrated into a work “with a significant amount of original expression” and the infringer pays reasonable compensation and provide attribution. This limitation on injunctions does not apply, however, where the owner is the author of the work objects, alleging that the new use “would be prejudicial to the owner’s honor or reputation, and this harm is not otherwise compensable.” This restriction on the limitation on injunctions is new; it was not present in the 2008 Shawn Bentley Act.

Good Faith Diligent Search

A good faith diligent search requires, at a minimum, a search of the Copyright Office records, searching sources of copyright authorship, ownership and licensing information, the use of technology tools, printed publications and “where reasonable, internal or external expert assistance,” and the use of databases, including the Internet. In addition, a good faith diligent search “shall include any actions that are reasonable and appropriate under the facts relevant to the search, including actions based on facts known at the start of the search and facts uncovered during the search, and including a review, as appropriate, of Copyright Office records not available to the public through the Internet that are reasonably likely to be useful in identifying and locating the copyright owner.”

The legislation provides that the Copyright Office will maintain and update “statements of recommended practices” for diligent searches for categories of works. These statements “will ordinarily include reference to materials, resources, databases, and technology tools that are relevant to a search” and may consider comments submitted by interested stakeholders.

The requirements for a good faith diligent search set minimum standards that are highly detailed and burdensome. In addition to the minimum standards for a diligent search, users are required to take “any actions that are reasonable and appropriate” that may include review of Copyright Office records that are not available over the Internet, resulting in extremely time consuming and resource intensive searches.

Notice of Use Requirement

This discussion draft also includes a “Notice of Use” requirement, directing users to submit detailed information to the Copyright Office about the intended use and the nature of the search. The “notice of use” must include the following information: 1) type of work used; 2) description of the work; 3) summary of the qualifying search conducted; 4) any other identifying indicia available to the user; 5) source of the work (such as the library or website where the work was located or publication where the work originally appeared); 6) certification that the user performed a qualifying search; and 7) name of the user and description of how the work will be used.

The version of the Shawn Bentley Act passed by the Senate in 2008 did not contain a Notice of Use Provision. When the bill went over to the House, Congressman Howard Berman, then chairman of the House IP Subcommittee, added a notice of use provision as a “poison pill.” Berman was highly skeptical of the need for legislation, so he added the notice of use requirement because he knew it would be strongly opposed by the bills’ proponents, including the libraries and the publishers. The tactic succeeded, and the bill died in the House.

The notice of use is a burdensome requirement that will require time and resources and could significantly undermine the usefulness of the legislation. The high level of detail and documentation required is unworkable, particularly for large volumes of uses. In addition, the Copyright Office does not have the technological infrastructure nor the staff to undertake the effort proposed.

Fair Use Savings Clause

The discussion draft includes a fair use savings clause:

PRESERVATION OF OTHER RIGHTS, LIMITATIONS, AND DEFENSES— This section does not affect any right or any limitation or defense to copyright infringement, including fair use, under this title. If another provision of this title provides for a statutory license that would permit the use contemplated by the infringer, that provision applies instead of this section.

This savings clause is critical in providing assurances that users of orphan works may still rely on fair use. As was pointed out by the Library Copyright Alliance (LCA), individual libraries, and other commentators, fair use jurisprudence has moved in a positive direction. Court cases that have been decided in recent years have strongly favored fair use, particularly in transformative use cases.

Analysis

The Copyright Office’s denigration of fair use as a solution to the orphan works problem is disappointing.  What the Copyright Office fails to acknowledge in its analysis of recent fair use jurisprudence is that fair use is a fairly predictable doctrine. As Professor Pamela Samuelson noted in a 2009 article entitled, Unbundling Fair Uses, “Fair use is both more coherent and more predictable than many commentators have perceived once one recognizes that fair use cases fall into common patterns.”  The Copyright Office’s suggestion that because fair use is flexible and fact-specific it is insufficient to address orphan works, is also misleading. By analogy, while the Copyright law does not have an explicit limitation or exception for the use of VCRs or DVRs, specific legislation to ensure that recording using such devices is lawful is not necessary because it is widely understood that such activity is fair use.

Furthermore, the Copyright Office suggests that even where fair use may be a defense, “many will choose to forego use of the work entirely rather than risk the prospect of expensive litigation.” The Copyright Office fails to recognize that its proposed burdensome legislation that requires extremely time and resource intensive searches as well as notice of use requirements, could also cause users to forego the use of the work. Additionally, where legislation appears overly complicated, while institutions and corporations may make use of it, individual users may find compliance difficult. The TEACH Act is one such example. The difficult and burdensome requirements of the TEACH Act have led to few, if any institutions from using it.

With respect to community best practices, it is true that they are made without consultation with rightholders, but this is a conscious decision. Community best practices “arise from the community’s values and mission. It presents a clear and conscientious articulation of the values of that community, not a compromise between those values and the competing interests of other parties.” Best practices that have been negotiated with rightholders would likely fall far short of what the law actually permits under fair use. Indeed, an effort to develop guidelines in the late 1990’s under the auspices of the USPTO failed to produce any guidance to the various communities of interest after several years of effort.  Furthermore, these best practice documents are grounded in community practices, often supported by case law, not merely aspirational documents.

As noted above, the draft legislation has significant problems including overly burdensome and complicated requirements.  The requirements for a reasonably diligent search and limitations on injunctions are highly problematic.  Finally, the notice of use provision is as poisonous now as it was in 2008.  If it is included in an orphan works provision, it will ensure that the provision is rarely, if ever, used.

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ARL Applauds Senate on Passage of USA FREEDOM Act

ARL is pleased that the Senate has passed the USA FREEDOM Act, without weakening provisions that protect privacy and civil liberties.  The USA FREEDOM Act prohibits the bulk collection that had been practiced by the National Security Agency and restores essential civil liberties. Passage of this bill is the first step forward in meaningful surveillance reform.  ARL looks forward to working with Congress on continued reforms to protect privacy and civil liberties.

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Three Provisions of the PATRIOT Expire; Senate to Vote on USA FREEDOM Act This Week

*Edited to include a link to the Center for Democracy and Technology (CDT) in-depth analysis of Senator McConnell’s proposed amendments to the USA FREEDOM Act*

Today, three key provision of the PATRIOT Act expired, including Section 215, known as the “library records” or “business records” provision.  While the Senate voted 77-17 on late Sunday evening — just hours prior to the midnight expiration of Section 215 and other provisions — to move forward with a vote on the USA FREEDOM Act, a final vote will not come until later this week due to Senate rules requiring additional time for debate.  Senator Paul’s (R-KY) earlier filibuster of the USA FREEDOM Act, which he argued did not go far enough in protecting privacy and civil liberties, delayed the process enough to result in at least temporary sunset of three provisions of the PATRIOT Act.

Section 215 has been used by the National Security Agency (NSA) to conduct mass surveillance, including bulk collection of phone metadata.  The Second Circuit recently ruled that this bulk collection exceeded the authority granted by Section 215.

While the Senate will hold a vote on the USA FREEDOM Act later this week, passage in its current form is not assured.  Majority Leader McConnell (R-KY) has introduced four amendments, all of which would weaken the USA FREEDOM Act.  These amendments would 1) extend the transition period for agency compliance with the USA FREEDOM Act from 6 months to 12 months; 2) replaces the section creating an amicus curiae to the FISA court with one that is less effective; 3) substitute the USA FREEDOM Act in its current form, including a new notice requirement for data retention for companies that intend to retain call detail records for less than 18 months and; 4) substitute the USA FREEDOM Act with all of the above changes and also removes the provision regarding declassification of FISA court opinions.  The third and fourth amendments are complete substitutes of the House-passed version of the USA FREEDOM Act, essentially re-writing the bill with substantial amendments.  CDT has a great in-depth explanation of each amendment here.

Should any of these amendments be accepted, the House of Representatives would need to accept these changes before the bill can be sent to President Obama.  A number of Representatives have already criticized the USA FREEDOM Act as not going far enough to protect privacy and civil liberties and Senator McConnell’s amendments could be rejected in the House.

Efforts to weaken the USA FREEDOM Act, such as those advanced by Senator McConnell, should not be accepted.  The USA FREEDOM Act should be considered to be the bare minimum in a series of reforms to the NSA’s surveillance practices and efforts to change the bill should focus on strengthening, rather than weakening, protections for privacy.  Now that Section 215 and other provisions of the PATRIOT Act have expired, Congress must carefully consider what authorities it wants to grant the NSA and other federal agencies.  Congress is no longer considering extension or reauthorization of existing powers, but will be granting authority to federal agencies once again.  In doing so, ARL urges members of Congress to protect privacy and civil liberties in a meaningful way and ensure that the key protections advanced by the USA FREEDOM Act are not diminished.

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