On Data Privacy Day, ARL Urges Congress to Reform Outdated Online Privacy Law

Today is Data Privacy Day, a day for organizations, companies, and individuals to advocate for stronger privacy rights. One area that is badly in need of reform is the Electronic Communications Privacy Act (ECPA), a law that was passed in 1986 that governs when government agencies can access e-mails and other online communications. This law has clearly not kept pace with evolving technologies and permits agencies to access documents or communications that are older than 180 days and stored online with merely a subpoena, meaning that no warrant or prior judicial consideration is necessary. This result is an absurd one, affording online communications with less protection than hard copy documents stored in an office or filing cabinet.

As libraries and universities move services into the cloud and more communications take place online, it is critical that Fourth Amendment protections continue to apply even in the digital world. The way individuals communicate and interact today has clearly changed since ECPA’s enactment in 1986 and the law must be updated to protect civil liberties. ARL has been a member of a broad coalition that includes civil liberties groups (such as ACLU, CDT, EFF and others) as well as technology companies (such as Google and AT&T) and trade associations (such as CCIA), to advocate for updates to ECPA.

In the last Congress, ARL celebrated when the Email Privacy Act, a bill that would provide much needed updates to ECPA, reached a milestone of 218 co-sponsors in the House of Representatives on June 17, 2014 representing a majority of support from members in the House. The Email Privacy Act ultimately attracted 270 cosponsors with broad, bipartisan support. The Senate had its own version of the bill, which passed committee, but never reached the floor.

Twenty-nine years have passed since ECPA was enacted and today’s digital world is very different from the one that existed in 1986. Congress has waited long enough to act on this important issue and we urge re-introduction and swift passage of the Email Privacy Act.

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Net neutrality update: FCC and Congress simultaneously considering new rules

Federal Communications Commission

After last year’s decision by the Court of Appeals for the D.C. Circuit striking down anti-blocking and anti-discrimination provisions in the FCC’s 2010 Open Internet Order, the FCC has been considering new rules to protect net neutrality. Initially, it appeared that the FCC was likely to continue to rely on its authority under Section 706 to protect net neutrality (in the decision rejecting provisions in the FCC’s 2010 Open Internet Order, the D.C. Circuit did uphold the FCC’s broad authority to regulate broadband services). Numerous groups strongly advocated for the FCC to reclassify broadband under Title II rather than relying on Section 706.

Since the FCC’s initial Notice of Proposed Rulemaking, President Obama has come out in favor of reclassification as a means of ensuring net neutrality.

Reports now indicate that Chairman Wheeler will propose reclassification of broadband, allowing the FCC to treat broadband providers as common carriers. Reclassification will enable the FCC to protect the open character of the Internet by strengthening the legal basis for its anti-discrimination and, in particular, its anti-blocking provisions. One of the issues under consideration by the FCC is what provisions under Title II it will chose to “forbear” from or not enforce; many provisions that apply to common carriers may not be applicable to Internet service providers.

There is also a question of whether the FCC’s rules will simultaneously rely on its Section 706 authority. Using Section 706 authority as a backup will help strengthen the net neutrality rules, particularly rules against paid prioritization.

Chairman Wheeler is expected to circulate his proposal to the other commissioners on February 5, with a vote on the rules planned for February 26.

Congress

While the FCC is expected to move forward with its net neutrality rules, Congress appears to be preparing to address this issue, as well. Hearings on net neutrality were held in both the Senate and House of Representatives on January 21.

Prior to these hearings, a discussion draft bill was released on January 16, 2015 and would create a new Title X to the Communications Act to deal specifically with broadband providers, rather than reclassifying broadband providers as a common carrier under Title II or using Section 706 authority.

While the draft bill would ban paid prioritization, there are several concerns regarding the discussion draft.

First, the language in the draft bill could provide considerable discretion to Internet service providers in determining what is “reasonable network management.”

Additionally, the bill includes language that states “nothing in this section . . . prohibits reasonable efforts by a provider of broadband Internet access service to address copyright infringement or other unlawful activity.” These provisions could effectively create loopholes for broadband providers to circumvent bans against blocking or discrimination.

ARL, as a member of the Library Copyright Alliance (LCA), submitted a letter to the Senate Committee on Commerce, Science and Technology and House Committee on Energy and Commerce raising these concerns, noting that “Copyright holders could use this language to essentially enforce their copyrights, even if their claims are misleading or false.”

Another concern with the discussion draft is that the “mass market” definition in the bill does not address libraries and higher education. This was a problem with the FCC’s 2010 Open Internet Order, as well, and in an initial filing by a coalition of library and higher education organizations, including ARL, these groups noted that the definition of “mass market”

needs to be clarified to ensure that the term “other end-user customers” clearly includes institutions of higher education and other institutions that purchase standardized broadband Internet access service. Certainly, institutions of higher education are not “residential customers” or “small businesses.” There is some uncertainty about whether institutions of higher education (and their libraries) are included in the term “schools” because the term is sometimes interpreted as applying only to K-12 schools.

A similar clarification is needed in this draft bill.

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Copyright Term Extension and the Public Domain

It’s Copyright Week, a series of actions and discussions supporting key principles that should guide copyright policy. Every day this week, various groups are taking on different elements of the law, and addressing what’s at stake, and what we need to do to make sure that copyright promotes creativity and innovation! Today’s topic is “Building and Defending a Robust Public Domain: The public domain is our cultural commons and a public trust. Copyright policy should seek to promote, and not diminish, this crucial resource.”

The current copyright term in the United States goes well beyond the international standard of life of the author plus fifty years and is now set at life of the author plus seventy years, or ninety-five years for corporate works. This term is unacceptably long and does significant damage to the public domain, depriving the public of a storehouse of raw materials from which individuals can draw from to learn and create new ideas or works.

Each year, Duke’s Center for the Study of the Public Domain does a roundup of everything that could have entered the public domain if the term prior to the 1976 act, which was set at twenty-eight years plus another twenty-eight years if renewed. The term has been changed twice since then, once by the 1976 Copyright Act which set the term at life of the author plus fifty years, then again in 1998 to the current term.

The list of works that failed to enter into the public domain as a result of these two changes to the copyright term is always an impressive one. This year’s highlights include works like T.H. White’s The Once in Future King, Chinua Achebe’s Things Fall Apart; or Michael Bond’s, A Bear Called Paddington. These works will go into the public domain in 2054. Notably, because of the Copyright Term Extension Act, the public domain has essentially been frozen; works under copyright at the date of implementation of the act in 1998 retained their copyright. The public domain will not see any new works due to expired copyrights until 2019.

The United States’ copyright term is unacceptably long and does not represent the international standard. Most countries in the world adhere to the Berne Convention standard of life of the author plus fifty years. In fact, where copyright term exceeds this international standard, there have been calls to reduce the term.

Many stakeholders, including the Library Copyright Alliance, called for a reduction of copyright term in submissions for the EU Copyright Consultation. The draft report on the Evaluation of the EU Copyright Directive was recently released and “Calls on the Commission to harmonise the term of protection of copyright to a duration that does not exceed the current international standards set out in the Berne Convention.”  If accepted, harmonization of copyright term would actually result in a reduction of term for many countries to life plus fifty years.

Reduction of copyright term makes good policy sense as long terms restrict access to knowledge and exacerbate the problem of orphan works. Furthermore, the economic evidence does not justify the current copyright term. In fact, the UK-commissioned independent review by Ian Hargreaves found:

Economic evidence is clear that the likely deadweight loss to the economy exceeds any additional incentivising effect which might result from the extension of copyright term beyond its present levels. This is doubly clear for retrospective extension to copyright term, given the impossibility of incentivising the creation of already existing works, or work from artists already dead. Despite this, there are frequent proposals to increase term . . . The UK Government assessment found it to be economically detrimental. An international study found term extension to have no impact on output.

Such lengthy copyright terms make little sense, particularly in light of today’s digital environment. Works are often published on the Internet, resulting in increasingly ephemeral content. Such content may have little to no economic value to the copyright owner, yet still remains under copyright protection until seventy years after the author has died. Policymakers should carefully consider the economic evidence and rationale before extending copyright terms and diminishing the public domain.

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Trade, Transparency and Democratic Values

It’s Copyright Week, a series of actions and discussions supporting key principles that should guide copyright policy. Every day this week, various groups are taking on different elements of the law, and addressing what’s at stake, and what we need to do to make sure that copyright promotes creativity and innovation! Today’s topic is “Transparency: Copyright policy must be set through a participatory, democratic and transparent process. It should not be decided through back room deals or secret international agreements.”

Tomorrow, intellectual property negotiators will begin meeting in secret to discuss the Trans-Pacific Partnership Agreement (TPP), a large regional trade agreement that currently has twelve negotiating parties: Australia, Brunei, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore, Vietnam and the United States. As noted in last year’s post for Copyright Week’s Transparency Day, transparency in policymaking is essential to upholding democratic ideals. Without access to information about the negotiations and texts, the public is unable to substantively comment and address areas of concerns.

Despite the fact that the TPP has been negotiated for the past five years, none of the negotiating parties has officially released proposals or text. The only texts that have been made available resulted from leaks, the most recent occurring on October 16, 2014. There have been many areas of concern with respect to the copyright provisions in the TPP. While the most recent leak shows improvements in some areas (such as eliminating the three-year rulemaking procedure for creating exemptions to anti-circumvention laws), it also revealed new potential issues (such as possibly preventing the reintroduction of copyright formalities for the last twenty years of copyright protection in the United States). Yet the public is only alerted to these potential problems by relying on leaks, which do not occur on a regular basis.

Furthermore, while governments made information about earlier rounds of negotiations public and stakeholders were invited to give presentations or interact with negotiators, recent meetings have become more secretive. The last time stakeholders were provided the opportunity to present was in August 2013 even though negotiations have continued on a regular basis since then. The website of the Office of the United States Trade Representative does not give any details or even acknowledge the meetings that will take place over the course of the next two weeks.

As the TPP is reportedly in its final stages, it appears that negotiations with the European Union on a regional trade agreement known as the Trans-Atlantic Trade and Investment Partnership (TTIP) seems to be quickly advancing. After several rounds of negotiations, texts have already been proposed in some areas. Unlike the negotiations in the TPP, however, much more information has been publicly released on the TTIP.

In November 2014, the European Commission announced that it would publish the dates, locations, names and organizations it meets with and the topics of its discussions. Specifically, the Commission agreed that with respect to the TTIP it would make public the negotiating texts it shares with Member States and Parliament, provide all Members of the European Parliament the TTIP texts, make less negotiating documents classified, and publish a public list of TTIP documents that have been shared with the European Parliament and Council.

The EU has already started to fulfill its promise to enhance transparency and “negotiat[e] TTIP as openly as possible.” On January 7, 2015, the EU released its negotiating texts that had been shared with US negotiators as well as position papers for areas which it had not yet developed and proposed text. The EU’s position paper on intellectual property reveals the intended architecture of the chapter including 1) a list of international intellectual property agreements signed by the EU and US; 2) shared principles that are based on existing rules and practices; 3) binding commitments (specifically referencing two copyright issues: resale rights for visual artists and public performance and broadcasting rights); and 4) areas where the EU and US can work together on areas of shared interests. The fact sheet specifically states that because the EU and US already have detailed enforcement provisions in their laws, “we wont negotiate rules on things like penal enforcement [and] internet service provider liability.”

Secrecy is a poor model for policymaking. Even when an agency or government asserts that it is transparent because it has released statements or described what proposals have been made, as noted in a letter commenting on proposed text in the TPP, “informed commentary is possible only with respect to actual text, not descriptions of text.” The specific language, structure and details of a proposal are critical in understanding the potential impacts. USTR should consider following the lead of the EU and release its negotiating proposals in the TTIP as they become available.

Similarly, TPP countries should agree to release the negotiating texts to allow for informed participation. Releasing the negotiating texts of trade agreements has precedent; the text of the Free Trade Area of the Americas was released and the US government solicited comment on the negotiating text.  Library associations noted their appreciation for the open process for commenting on the Free Trade Area of the Americas.  Participation in the democratic process is dependent on access to information; without being able to read the texts these values are threatened.

Of course, even if the TPP text is released, another danger remains: Congress may choose to give the Obama Administration “trade promotion authority” also known as “fast track authority.”  If “fast track” is approved Congress will not have the ability to change the agreement and can only approve or reject the agreement on a straight up-down vote, meaning that it cannot amend the agreement.  Agreements that have reached Congress through fast track authority have never been rejected.  This delegation of authority further threatens democratic principles by reducing the ability of elected officials to meaningfully address concerns that may arise from portions of the agreement.

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New Fair Use Cases for 2015: Rosen v. eBay and Fox v. DISH

It’s Copyright Week, a series of actions and discussions supporting key principles that should guide copyright policy. Every day this week, various groups are taking on different elements of the law, and addressing what’s at stake, and what we need to do to make sure that copyright promotes creativity and innovation!  Today’s topic is “Fair Use Rights: For copyright to achieve its purpose of encouraging creativity and innovation, it must preserve and promote ample breathing space for unexpected and innovative uses.”

In 2014, courts gave us some wonderful fair use cases, including several dealing with creation of searchable databases. In Authors Guild v. HathiTrust, for example, the Second Circuit strongly affirmed the right of fair use, finding in favor of HathiTrust’s creation of a full text search database and provision of accessible formats for the print disabled. In the long-awaited opinion White v. West Publishing, the Southern District of New York affirmed that ingesting briefs into a search database was a new use with a different character from the original briefs. Fox News v. TVEyes provided yet another case in which aggregating copyrighted works into a searchable database, this one dealing with video and audio works rather than text, was affirmed as fair use. For more fair use cases from last year, Dan Nabel, guest posting on Eric Goldman’s blog, has a great roundup of the top ten cases in 2014.

Just weeks into 2015, the Central District of California has already decided at least two new cases with fair use components (both cases involved several other copyright and contractual issues), finding largely in favor of fair use.

Rosen v. eBay — Photographing physical works for the purpose of re-selling the physical works

This case involves a lawsuit by Barry Rosen, a professional photographer, against eBay asserting, among other issues, that photographing physical magazines containing his images and posting them on eBay’s auction site violated his copyright. eBay argued that a photograph of the physical magazine was fair use.

The district court found that the photographs of the magazine “as used to represent physical magazines for resale, constitutes fair use.” It found that the use was transformative because while the original photographs were created for artistic purposes, the photographs of the magazines were used to provide information as to the condition and content of the magazines being sold. The court noted that, “the public also benefits greatly from being able to evaluate the magazines offered for sale legitimately under the first sale doctrine.” The court also found that photographing the magazine was necessary for its purpose and that the effect on the market was minimal.

Furthermore, the court rejected Rosen’s claim that fair use applies only to certain types of infringement and “the fair use doctrine applies to all forms of use of copyrighted works.” Holding otherwise, the court stated, “would drastically limit the ability of any person to resell any visual copyrighted work except to those in the physical presence of the work.”

Fox Broadcasting v. Dish Network — Time-shifting and place-shifting

Dish Network offered services that record television shows and skip over commercials, asserting that such technology was fair use, and was subsequently sued by various networks. The case involved a number of copyright and contractual issues; while the court found largely in favor of fair use for time-shifting and place-shifting technology, it also found that Dish Network may be liable for breach of contract.

The district court found that the “PrimeTime Anytime” service, which allowed users to record prime time television shows and skip over the commercials, constituted fair use under Universal Studios v. Sony (the “Betamax” case in which the Supreme Court ruled that videotaping a television broadcast was fair use). The district court summarized, “Sony established that it is fair use for users to make individual copies of television shows from broadcast television for purposes of noncommercial, nonprofit time-shifting.” The district court found that even though a market exists in which Fox licenses its programming to third parties to be distributed commercial-free, DISH’s PrimeTime Anytime service constituted fair use because the service did not compete with this market. The court noted that DISH subscribers had access to other services to record programming manually using other DVR technologies and that the recordings through the PrimeTime Anytime service was only available for eight days unless the subscriber affirmatively saved the recording in another folder. The district court then concluded that “The potential for market harm to the secondary market for Fox’s program caused by PTAT alone is simply too speculative to defeat a finding of fair use by a time-shifting technology which enhances consumers’ non-commercial private use of recorded programming.” While finding in favor of fair use of the PTAT technology, however, the court ruled against fair use for the copies DISH made as “quality assurance” copies finding that they were non-transformative.

After ruling in favor of DISH’s time-shifting technology, the court also noted that place-shifting is fair use: “Hopper Transfers is a technology that permits non-commercial time- and place-shifting of recordings already validly possessed by subscribers which is paradigmatic fair use under existing law. See Recording Indus. Ass’n of Am., 180 F.3d at 1079 (making copies ‘in order to render portable or ‘space shift’ those files that already reside on a user’s hard drive . . . is paradigmatic noncommercial use.” While this use is itself a fair use, however, DISH may have violated its contractual agreements with Fox.

These first fair use cases of 2015 involve vastly different circumstances, but highlight the importance of the fair use right. Fair use, working in tandem with the first sale doctrine, can provide information to the public about the quality of an item being sold. It can also provide valuable services with new technologies to consumers. As these cases demonstrate, fair use is relied upon every day and the doctrine helps balance copyright law. Of course, fair use extends far beyond the scope of these cases.

As an extremely crucial right touching upon so many facets of every day life, fair use deserves to be highlighted multiple times and we hope you will join us in celebrating this important doctrine during the upcoming Fair Use Week!  More information on Fair Use Week 2015, which will be held February 23-27, is available here.

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Save the Date! Fair Use Week 2015 Will Take Place February 23-27

It’s Copyright Week, a series of actions and discussions supporting key principles that should guide copyright policy. Every day this week, various groups are taking on different elements of the law, and addressing what’s at stake, and what we need to do to make sure that copyright promotes creativity and innovation! Today’s topic is “Fair Use Rights: For copyright to achieve its purpose of encouraging creativity and innovation, it must preserve and promote ample breathing space for unexpected and innovative uses.”

Mark your calendars! Fair Use Week 2015—a community celebration of fair use coordinated by the Association of Research Libraries—will take place February 23–27.

What is Fair Use Week?

Each day teachers teach, students learn, researchers advance knowledge, and consumers access copyrighted information due to exemptions in the Copyright Act, such as fair use. Fair use allows the use of copyrighted material without permission from the copyright holder under certain circumstances. For libraries, educational institutions, and the public, the fair use doctrine is the most important limitation on the rights of the copyright owner—the “safety valve” of US copyright law.

Fair Use Week is an annual celebration of the doctrine of fair use and the important role this limitation on copyright plays in achieving the Constitutional purpose of intellectual property rights: to promote the progress of science and the useful arts. The flexible nature of the fair use doctrine has permitted copyright to adapt to new technologies and changes.

While Fair Use Week 2015 will be celebrated February 23–27, we believe that every week is fair use week. Indeed, fair use is employed on a daily basis by students, faculty, librarians, journalists, and all users of copyrighted material. Fair Use Week is simply a time to promote and discuss the opportunities presented by fair use, celebrate successful fair use stories, and explain the doctrine.

When is Fair Use Week?

Fair Use Week 2015 will take place from Monday, February 23, through Friday, February 27. People can participate on a single day during the week, multiple days, or the full week.

How can I participate in Fair Use Week?

The level of participation in Fair Use Week is entirely up to each participant. Some will publish a blog post on fair use on one day during the week, while others might host events each day of the week. Below are some examples of ways to participate in Fair Use Week 2015:

  • Write a blog post on fair use.
  • Publish an op-ed.
  • Host a live panel on fair use at your campus, institution, or organization.
  • Host a webcast or webinar.
  • Create a video about fair uses.
  • Publicize fair use on social media using the hashtag #fairuseweek2015.
    (On Twitter, you can also follow and tag @fairuseweek.)
  • Submit fair use success stories for the Fair Use Weekblog on Tumblr.

We hope you will consider participating in Fair Use Week 2015!

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Flaws of the 1201 Rulemaking Process

It’s Copyright Week, a series of actions and discussions supporting key principles that should guide copyright policy. Every day this week, various groups are taking on different elements of the law, and addressing what’s at stake, and what we need to do to make sure that copyright promotes creativity and innovation!  Today’s topic is “You Bought It, You Own It: Copyright policy should foster the freedom to truly own your stuff: to tinker with it, repair it, reuse it, recycle it, read or watch or launch it on any device, lend it, and then give it away (or re-sell it) when you’re done.”

You bought it, you own it.  This principle applies in the analog world, but in the digital world it is less clear.  In the digital world, technological protection measures (TPM) or “digital locks” may prevent a user from tinkering with a copyrighted work or product he has purchased, even if it is for a completely lawful purpose due to rules in the Copyright Act prohibiting circumvention of these locks.

ARL, as part of the Library Copyright Alliance, is currently involved in the Section 1201 rulemaking process, a procedure where the Copyright Office will determine what classes of works will receive an exemption from the anti-circumvention rules governing TPMs. The process takes place every three years—this is the sixth rulemaking—and individuals or groups can petition to have the previous exemptions renewed or expanded, or can apply for new exemptions.

The rulemaking process is time and resource consuming. Indeed, the 2009 rules were delayed and not announced until July of 2010. The entire process can take a year or more and because the exemptions are renewed de novo without any benefit of a presumption in favor of renewal, it is a burdensome procedure. These exemptions are not made permanent even after multiple renewals, but instead the entire process is repeated again and again.

It is important to note that the exemptions that are requested are for all for non-infringing uses. These are uses that would be permitted, without the time and expense of a rulemaking process, for copyrighted works in analog form which are not accompanied by TPMs. These uses might be for the same purposes as specific limitations and exceptions, such as the making of accessible format works for persons who are print disabled, or for fair use purposes. Despite the fact that these purposes are permitted where TPMs do not exist, in order to achieve these same purposes in the digital world, exemptions must be requested every three years.

This is a fundamental flaw in the language and interpretation of 1201. As LCA’s comments for the record at the House Judiciary Subcommittee hearing on the issue of technological protection measures points out:

The fact that every three years the blind need to expend scarce resources to petition the Librarian of Congress to renew their exemption—or that libraries and educators have to seek renewal of the film clip exemption every three years—demonstrates the fundamental flaw in section 1201. That flaw is that section 1201 could be interpreted to prohibit the circumvention of a technological protection measure even for the purpose of engaging in a lawful use of a work. Congress should adopt the approach proposed by the Unlocking Technology Act of 2013 and its predecessors, attaching liability to circumvention only if it enables infringement.

LCA’s petitions for the 2015 rulemaking process highlight some absurdities. One of its petitions focuses on making literary works distributed electronically accessible for persons with print disabilities. Although this exemption has been continually renewed since 2003, the exemption must again be petitioned for and new evidence must be submitted. The second LCA petition requests an exemption for motion picture excerpts, including expanding the current exemption for all storage media, including Blu-Ray discs. The 2012 exemption applied only to a specific type of technological protection measure, known as Content Scrambling System, which is used with DVDs; because Blu-Ray discs used a different form of a TPM, this 2012 exemption did not apply.

In addition to the fact that the process is extremely repetitive, resource consuming and unnecessary, the rules have grown increasingly complex and long. In the 2003 rulemaking, the Librarian of Congress exempted four classes of works; these rules were laid out in 200 words. By contrast, the 2012 rules included eight classes of works—though five of these classes all relate to motion pictures, particularly excerpts or screen captures—and these exemptions amounted to nearly 1200 words. Consider, for example, the specific exemption for literary works distributed electronically. The word count more than doubled from its 2003 language to its 2012 language, becoming more complicated and including a cross-reference to Section 121 of the Copyright Act.

2003 exemption:

Literary works distributed in ebook format when all existing ebook editions of the work (including digital text editions made available by authorized entities) contain access controls that prevent the enabling of the ebook’s read-aloud function and that prevent the enabling of screen readers to render the text into a specialized format.

2012 exemption:

(1) Literary works, distributed electronically, that are protected by technological measures which either prevent the enabling of read-aloud functionality or interfere with screen readers or other applications or assistive technologies in the following instances:

(i) When a copy of such a work is lawfully obtained by a blind or other person with a disability, as such a person is defined in 17 U.S.C. 121; provided, however, the rights owner is remunerated, as appropriate, for the price of the mainstream copy of the work as made available to the general public through customary channels; or

(ii) When such work is a nondramatic literary work, lawfully obtained and used by an authorized entity pursuant to 17 U.S.C. 121.

The result of the increasingly complicated and specific language across all the exemptions (in fact, the language for the benefit of the print disabled above is relatively simple in comparison to other 2012 exemptions) is that these exemptions become virtually unusable for many users.

The process should be re-thought to ensure that 1) resources are not unnecessarily wasted through a repetitive, time-consuming process and 2) the beneficiaries of these exemptions can clearly understand the rules and make use of the exemptions.

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Copyright Week!

Today is the start of Copyright Week,  a series of actions and discussions supporting key principles that should guide copyright policy. Every day this week, various groups are taking on different elements of the law, and addressing what’s at stake, and what we need to do to make sure that copyright promotes creativity and innovation.

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Stay tuned the rest of this week for posts on technological protection measures, fair use, transparency in policymaking, and the importance of the public domain!

 

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End of the Authors Guild v. HathiTrust Saga, A Victory for Fair Use

For the past several years, the HathiTrust and five of its member universities have been engaged in litigation after being sued by the Authors Guild. On January 6, 2015, the parties entered a settlement on the sole issue remaining before the district court, ending the litigation in a victory for HathiTrust and fair use.

In its litigation, the Authors Guild alleged that HathiTrust Digital Library’s (HDL) digitization of works for the purposes of use in a full-text search database, providing access to the print disabled, and preservation, as well as the Orphan Works Project developed by the University of Michigan, constituted copyright infringement. The Orphan Works Project was abandoned and not considered ripe for adjudication, while the other issues advanced. The district court found in favor of HDL’s motions for summary judgment on the remaining three issues.

In June 2014, the Court of Appeals for the Second Circuit strongly affirmed fair use, finding that HathiTrust Digital Library’s creation of a full-text search database and providing access to the print disabled constituted fair use. On the issue of preservation, the Second Circuit remanded back to the district court – without determining the merits of whether such preservation constituted fair use – to determine whether the plaintiffs had standing to bring the claim. In its press release on the opinion, the Library Copyright Alliance applauded the decision noting that the

 Second Circuit rightly concluded that HDL’s activities are protected by fair use, ensuring the ‘safety valve’ of fair use is well-functioning and providing meaningful balance through limitations on the copyright holder’s rights. Fair use has long been relied upon to provide important protections for the public and promote new and transformative uses of copyrighted works, such as those facilitated by HDL.

Summaries and analysis of the Second Circuit’s opinion available here and here.

On January 6, 2015, the Authors Guild and HathiTrust settled the preservation issue, with the defendant libraries stipulating that they have complied with Section 108(c) of the Copyright Act and have only made replacement copies where the original was damaged, deteriorating, lost or stolen, and that an unused replacement could not be obtained at a fair price. The defendant libraries further agreed that for a period of five years, if the libraries do not comply with the stipulation, it will notify the Authors Guild, “which, although not a Remaining Plaintiff in this Action, will accept notice.”

While an appeal to the Supreme Court would still be possible, it appears from a release issued by the Authors Guild today that the Guild will not pursue this path. The Authors Guild begins its release noting that the settlement “brought to an end the Guild’s copyright infringement lawsuit against the group of research libraries known as the HathiTrust.”

Ultimately, the Authors Guild v. HathiTrust saga ended in a strong victory for fair use as the Second Circuit opinion will now stand. The library community applauded this opinion when it was released. The opinion had a number of notable implications. It strongly affirmed the use of mass digitization for purposes of facilitating fair uses (such as creation of a full-text search database or access for the print disabled). The Second Circuit also endorsed a “functional transformation” approach in conducting its fair use analysis, finding that a use is transformative if the works is used for a significantly different purpose than its original market purpose. Additionally, the Second Circuit, in a quick footnote, rejected the Authors Guild’s repeated claims that Section 108 of the Copyright Act restricts fair use.

Furthermore, while the parties settled the issue of preservation for purposes of use as a replacement copy, essentially noting that the parties will comply with Section 108(c) of the Copyright Act, practically speaking, as noted by Jonathan Band’s analysis, What Does the HathiTrust Decision Mean for Libraries?, libraries engaged in the activities of HathiTrust can make digital copies:

Because providing full-text search capability justifies the creation and maintenance of a database of text files, a library could create and maintain a database of text files if the library provided full-text search capability of those text files. Likewise, because access to the print disabled justifies the creation and maintenance of a database of image files, a library could create and maintain a database of image files if the library provided the print disabled with access to those image files. Additionally, the library could create appropriate backup copies of these databases.

 

[…]

 

In short, the HathiTrust decision indicates that a library could make digital copies of all the analog works in its collection, and store those copies as text and image files, if the library provided full text-search capability and full-text access to the disabled.

HathiTrust’s press release on the resolution of the litigation is available here.

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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.

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