Balanced Copyright in CPTPP and NAFTA

This week is Fair Use Week, an annual celebration of the important doctrines of fair use and fair dealing. It is designed to highlight and promote the opportunities presented by fair use and fair dealing, celebrate successful stories, and explain these doctrines.

*This is a guest blog post by Jonathan Band, policybandwidth*

The “balanced copyright” provision of the original Trans-Pacific Partnership (“TPP”) Agreement has been included in the successor agreement, the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (“CPTPP”), negotiated by the remaining TPP parties after the United States pulled out of the TPP. However, it appears that the U.S. government is opposing the provision’s inclusion in the North American Free Trade Agreement (“NAFTA”), currently under renegotiation. This is ironic given that the United States originally proposed inclusion of the provision, based on the U.S. fair use doctrine, in TPP. Thus, the eleven parties to the CPTPP now appear more dedicated to a U.S. legal principle than the United States itself.


Article 18.66 of the IP chapter of the TPP required each party to “endeavor to achieve an appropriate balance in its copyright and related rights systems.” This balance was to be achieved by means of limitations and exceptions that gave “due consideration to legitimate purposes such as, but not limited to: criticism; comment; news reporting; teaching, scholarship, research and other similar purposes; and facilitating access to published works for persons who are blind, visually impaired, or otherwise disabled.”

The United States originally proposed this language during the July 2012 round of TPP negotiations in San Diego, CA. (See here for more detailed discussion of the development of Article 18.66.) The provision’s list of legitimate purposes was based on the list of purposes in 17 U.S.C. 107, which codifies the fair use doctrine. The U.S. explained that “[t]hese principles are critical aspects of the U.S. copyright system, and appear in both our law and jurisprudence. The balance sought by the U.S. TPP proposal recognizes and promotes respect for the important interests of individuals, businesses, and institutions who rely on appropriate exceptions and limitations in the TPP region.”

Twelve countries, including the United States, signed the TPP on February 4, 2016. On January 23, 2017, the day after his inauguration, President Trump withdrew from the TPP, which had not yet come into effect.


The remaining eleven TPP parties—Australia, Brunei, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore, and Vietnam–agreed on a revised TPP on January 23, 2018. The new agreement, named the CPTPP, is largely the same as the TPP, except that the parties decided to suspend 20 provisions that had been demanded by the United States in the TPP. With respect to copyright, the parties suspended the provisions relating to copyright term, circumvention of technological protection measures, and safe harbors for Internet service providers. Significantly, the parties did not suspend the balanced copyright provision, even though it had originally been proposed by the United States. Thus, the eleven CPTPP countries have obligated themselves the endeavor to achieve an appropriate balance in the copyright systems.


Once President Trump announced that the United States would renegotiate NAFTA, it was assumed that the United States would use the TPP IP chapter as the template for the new NAFTA IP chapter since Mexico, Canada, and the United States had already agreed to that language in TPP and the TPP IP chapter reflected so many of the U.S. demands. Nonetheless, the copyright industries launched a lobbying campaign against incorporation of the “balanced copyright” and ISP safe harbor provisions.

The Copyright Alliance, for example, asserted that while it “believe[s] in a ‘balanced’ copyright system,” the “concept of ‘balance’ is actively being twisted and used as a vehicle for weakening copyright protections….” For this reason, it is “skeptical about including this type of language in a trade agreement.” Similarly, the Recording Industry Association of America (“RIAA”) argued that “efforts to export the American fair use exception are particularly troubling.” Accordingly, RIAA believed that the United States should not support “broad provisions that could diminish, or otherwise generate legal uncertainty with respect to, the three-step test.”

However, there is no evidence that the concept of balance is being twisted or that the export of fair use would lead to uncertainty or the weakening of copyright protection in a troubling manner. The example of Israel is instructive. Israel adopted a fair use provisions similar to 17 U.S.C. 107 in 2007. Since then, Israeli courts have applied fair use stringently. They have imposed a fifth factor not included in the statute: the defendant must provide attribution to the author. Moreover, Israeli courts have found fair use at a lower rate than U.S. courts. Thus, the Israeli courts’ implementation of fair use demonstrates that U.S. copyright owners have nothing to fear from the export of fair use. In any event, TPP article 18.66 does not require adoption of a fair use provision; it simply imposes an obligation to endeavor to achieve balance.

Balance as a Traditional Contour of U.S. Copyright Law

An even more unreasonable objection to a balanced copyright provision in NAFTA appeared in a letter to U.S. Trade Representative Robert Lighthizer, by twenty-five conservative organizations. These groups, which have no knowledge of the copyright system, urged the USTR “to reject calls for NAFTA to include ‘users’ rights,’ which was manifested in the Obama-era concept of copyright ‘balance.’”

Contrary to the letter’s suggestion, copyright balance is not an “Obama-era” concept. Rather, it is a principle the U.S. Supreme Court and courts of appeals articulated repeatedly long before the Obama Administration.

Thus, the Supreme Court in Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489 U.S. 141, 146 (1989), observed that the Constitution’s intellectual property clause “itself reflects a balance between the need to encourage innovation and the avoidance of monopolies which stifle competition without any concomitant advance in the ‘Progress of Science and useful Arts.’”

In Sony Corp. v. Universal City Studios, Inc., 464 U.S. 417, 429 (1984), the Supreme Court stated that “Congress has been assigned the task of defining the scope of the limited monopoly that should be granted to authors or inventors in order to give the public appropriate access to their work product…[T]his task involves a difficult balance between the interests of authors and inventors in the control and exploitation of their writings and discoveries on the one hand, and society’s competing interest in the free flow of ideas, information, and commerce on the other….”

In Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913, 928 (2005), the Supreme Court recognized that the copyright law maintained a “balance between the respective values of supporting creative pursuits through copyright protection and promoting innovation in new communication technologies by limiting the incidence of liability for copyright infringement.” The Court noted that “[t]he more artistic protection is favored, the more technological innovation may be discouraged; the administration of copyright law is an exercise in managing the trade-off.” Id.

The federal courts of appeals likewise have recognized the concept of copyright balance. The Second Circuit stated that “the copyright law seeks to establish a delicate equilibrium. On the one hand, it affords protection to authors as an incentive to create, and, on the other hand, it must appropriately limit the extent of that protection so as to avoid the effects of monopolistic stagnation.” Computer Assocs. Int’l, Inc., v. Altai, Inc., 982 F.2d 693, 696 (2d Cir. 1992).

Similarly, the Fifth Circuit wrote that in the Copyright Act “Congress balanced the competing concerns of providing incentive to authors to create and of fostering competition in such creativity.” Kern River Gas Transmission Co. v. Coastal Corp., 899 F.2d 1458, 1463 (5th Cir. 1990).

The Federal Circuit, referring to the Digital Millennium Copyright Act, a statute criticized in the December 18 letter, noted that in enacting the DMCA, “Congress attempted to balance the legitimate interests of copyright owners with those of consumers of copyrighted products.” Chamberlain Group v. Skylink Tech., Inc., 381 F.3d 1178, 1203 (Fed. Cir. 2004). The court observed that under the plaintiff’s interpretation, which would have “eliminated all balance and granted copyright owners carte blanche authority to preclude all use, Congressional intent would remain unrealized.” Id.

It is curious that a group of conservative organizations would disparage users’ rights in favor of what the Supreme Court has described as a government granted monopoly. It is even more curious that these organizations would suggest that exceptions and limitations such as fair use “should be contracting, not expanding, in the digital age.” After all, the Supreme Court in Eldred v. Ashcroft, 537 U.S. 186, 219 (2003), explained that fair use is one of the “traditional contours of copyright protection that acts as “a built-in First Amendment accommodation[].” Surely these groups support the First Amendment—and that is what the concept of balanced copyright is all about.

Fair Use Promotes Creation of New Knowledge

Happy Fair Use/Fair Dealing Week!

To celebrate Fair Use Week 2018, ARL has released a new infographic in keeping with the tradition of releasing a new fair use infographic each year. While we often celebrate fair use in terms of the ways in which a user relies on existing information (such as the 2016 infographic, Fair Use in a Day in the Life of a College Student), this year we’re celebrating how fair use  contributes to the creation of new knowledge.

For example, fair use promotes:

  • More accurate news reporting
  • Creation of innovative products, such as searchable databases
  • New art, including appropriation art
  • New content, such as user-generated content like fan fiction, remix songs and mash-up videos
  • Better documentary information, including in films or websites
  • Innovative ways to share information
  • New interoperable software, made possible through reverse engineering
  • Contributions to new scholarship

Screenshot 2018-02-25 19.08.46

This year’s infographic, Fair Use Promotes the Creation of New Knowledge is available here, along with infographics from previous years. You can also check out lots of great content and resources on the Fair Use/Fair Dealing Week website.

Springer, Censorship and the Need for Open Access


*Updated January 22, 2017 to include a statement by Sarah Thomas, Vice President for the Harvard Library and University Librarian*

It’s Copyright Week! Today’s topic is “Copyright and Censorship: Freedom of expression is a fundamental human right essential to a functioning democracy. Copyright should encourage more speech, not act a legal cudgel to silence it.”

When a rightsholder uses his or her rights to prevent others from relying on, accessing, or using information, copyright can act as a tool of censorship. One example of where this happened occurred in November 2017 when Springer Nature agreed to exclude Chinese readers and institutions from accessing certain articles in its journals at the request of the Chinese government. Regardless of whether Springer acted in good faith in order to maintain access in China to the rest of its collection, because authors collectively relinquished control over their copyrights there was no effective remedy. We are familiar with the problem of authors assigning rights to corporate entities, which may be more inclined to aggressively enforce their rights under copyright law or demand high fees in order to access or use the work. In the Springer case, because of copyright, authors could not promote access to their work because the publisher acquiesced to a government’s censorship demands.

According to The Financial Times, Springer blocked an estimated 1,000 articles its journal, International Politics and the Journal of Chinese Political Science, effectively aiding China’s censorship request. This decision by Springer followed a similar August 2017 action by Cambridge University Press to block access to 315 articles at the request of the Chinese government, though Cambridge University Press later reinstated the articles after heavy criticism, citing the desire to “uphold the principle of academic freedom.” Other university presses, such as Oxford University Press, MIT Press and the University of Chicago Press have stated that they will not comply with censorship demands.

Ultimately, censorship directly harms research, scholarship and academic freedom. In the digital age, global collaboration is commonplace and Chinese students and researchers are at a significant disadvantage without access to the full corpus of works that researchers in other countries have. Research institutions should work to support barrier free access to information to combat censorship.

Springer’s decision to censor 1,000 articles illustrates that, as a for-profit institution, its goals may not align with those of academic institutions and highlights the necessity for higher education to regain control over scholarly communication. Working with publishers that agree to censor materials raises questions regarding threats to academic freedom, research and discovery.

Authors should carefully consider whether assigning their copyright to publishers is in their best interests knowing that, in addition to the ability for publishers to impose high costs to read articles, these entities may comply with requests that prevent readers in other countries from having access to these works.

Ultimately, copyright and licensing issues have serious consequences for the research community. Ensuring that the research community can retain control over its scholarly communication outputs will promote barrier free access too all. Publishing in open access outlets, including in preprint services, or retaining copyright can help ensure that selective censorship is more difficult.

Statement of Sarah Thomas, Vice President of Harvard Library and University of Librarian:

I’m astonished that Springer Nature has not used their important leverage as a content provider to protect the rights of their authors to be read and to exercise their professional leadership in promoting access to knowledge. Censorship is the suppression of ideas, and is directly opposed to Springer Nature’s stated policy: “Our publishing and editorial policies have been developed in consultation with the research communities we serve, including authors and librarians, and are rooted in belief that scholarly communication is aided by greater transparency of the processes by which we operate.”

Springer Nature proudly proclaims on their home page: “We advance discovery by publishing robust and insightful research, supporting the development of new areas of knowledge and making ideas and knowledge accessible around the world.” Apparently this statement is a qualified one, subject to governmental influence and balanced by commercial considerations.

Certainly I will work at Harvard to increase awareness of Springer Nature’s complicity in the silencing of scholars who write for their journals. In a world in which basic democratic values are increasing threatened by authoritarian leaders, it is shocking that the Von Holtzbrinck-owned publisher Springer Nature would contribute to their decay. Is this the work of new CEO Daniel Ropers, who comes out of retailing?

I urge Springer Nature to show the commitment to the “advancement of science, learning, and society” that Ropers espoused when joining Springer Nature in autumn 2017 and to look to publishers such as Cambridge University Press as a model.

Will Dicta from Impression Products v. Lexmark Lead to the Ability to Control Your Own Devices?


Today we’re celebrating Copyright Week! Today’s topic is “Controlling Your Own Devices: As software-enabled devices become ubiquitous, so do onerous licensing agreements and technological restrictions. If you buy something, you should be able to truly own it – meaning you can learn how it works, repair it, remove unwanted features, or tinker with it to make it work in a new way.”

Due to an ambiguity in the text of the Digital Millennium Copyright Act (DMCA), the anti-circumvention provisions can be read to make the very act of circumvention of a technological protection measure (TPM), or “digital lock,” an infringement of copyright — even if there is no underlying copyright violation. While logic would suggest that there is a violation only if the circumvention is being used to infringe copyright, some courts have held otherwise. As a result, circumventing TPMs can be risky, even if the user is simply trying to engage in a fair use, which would be completely permissible in the analog world.

The Supreme Court has never ruled on this ambiguity, but a case decided at the end of its term last year involving exhaustion of rights in a patent case, included some dicta that seemed to favor the ability of individuals to repair the items they own. In Impression Products v. Lexmark International, the Court found in favor of international exhaustion of rights, finding that a patent holder cannot enforce contractual restrictions on downstream sales in patent infringement cases.

While issues regarding TPMs and anticircumvention were not raised in the case, as a policy matter, the majority opinion detailed the dangers that would occur without exhaustion and used the right to repair as an example:

Take a shop that restores and sells used cars. The business works because the shop can rest assured that, so long as those bringing in the cars own them, the shop is free to repair and resell those vehicles. That smooth flow of commerce would sputter if companies that make the thousands of parts that go into a vehicle could keep their patent rights after the first sale.  Those companies might, for instance, restrict resale rights and sue the shop owner for patent infringement. And even if they refrained from imposing such restrictions, the very threat of patent liability would force the shop to invest in efforts to protect itself from hidden lawsuits.  Either way, extending the patent rights beyond the first sale would clog the channels of commerce, with little benefit from the extra control that the patentees retain.  And advances in technology, along with increasingly complex supply chains, magnify the problem.

The use of auto repair as an example of the problems created through overzealous claims of intellectual property protection is a compelling one given the issues of embedded software in automobiles and anti-circumvention measures. With a growing number of vehicles containing embedded software, some rightholders are claiming that purchasers of these vehicles should not be free to modify, repair or tinker with these items. An article in Wired in 2015 highlighted the fact that John Deere (and other automakers) opposed an exemption to allow circumvention of technological protection measures in order to repair purchased vehicles during the DMCA 10201’s triennial exemption process.

While the use of embedded software continues to proliferate in our everyday household objects, a common sense approach must be adopted to ensure that we can repair objects we’ve purchased in the same way a consumer would have been free to repair his car, toaster or washing machine in an era before “smart” technology.

The Coming Vote on Network Neutrality


*This post was written by Christopher Libertelli and Krista Cox*

It is hard to avoid the press coverage of the coming vote to reverse Obama-era Network Neutrality policies. In the long-sweep of history, this vote will mark an important milestone in a government proceeding that is almost 20 years old.  

During the last six months, ARL has engaged independently on the details of Chairman Pai’s proposal. Sadly, we found little openness to exploring safeguards developed by ARL and our higher-education coalition partners that were any different than those initially proposed by Chairman Pai. We could spill a lot of ink discussing what that closure means for the deliberative model at the FCC specifically and in government generally. Suffice it to say that the lack of openness to evaluate other policy models like those proposed by ARL frustrated the pro-Net Neutrality coalition’s ability to reverse Chairman Pai’s proposed changes. At times, the proceeding felt like it had an anti-intellectual quality to it as policymakers at the FCC and in Congress pre-determined the outcome, without the benefit of public comment. Thus, we are expecting a fairly radical, categorical reversal of the 2015 Network Neutrality rules, transferring regulatory oversight over ISPs to the FTC and preserving only whatever government authority exists in such an environment. State regulatory authority will be preempted and federal regulators will be left enforcing a scaled back transparency rule that requires certain basic disclosures to ISP consumers.

The policymaking process now shifts to the courts. Because Chairman Pai is proposing a novel statutory interpretation of the Communications Act, there is inherent risk to sustaining the Order in the courts. That said, the FCC leadership understands this and has tried to improve its chances of prevailing on appeal. One of the more interesting aspects of the appeal will be whether Chairman Pai’s refusal to undertake a serious review of the ‘fake’ comments in the docket creates appellate risk under the Administrative Procedures Act. If the Courts of Appeals takes up that issue, it could establish new administrative law to address a world where more and more citizens are using the Internet to file comments and express their views to government officials. If we were pressed to estimate the odds that Chairman Pai’s Order we think it is probably unlikely to be sustained on appeal. If the Order lands in the DC Circuit, the odds of the government prevailing go down given that the DC Circuit upheld the 2015 Open Internet Order. If the Order lands in a circuit other than the DC Circuit, the odds of the government sustaining its Order increase as the weight of the record from the 2015 case would be less significant.

What does all of this regulatory back and forth and policy churn mean for research libraries?  We think it means at least three things:

  1. The policymaking process does not end with an FCC vote or a Congressional action and Presidential signature. It ends with a final judicial decision on the merits, by the highest court willing to hear the case. Consistent with past practice, ARL expects to participate, along with other allies, in whichever appellate court hears the appeal;
  2. It is entirely possible that ISPs will test their newfound regulatory freedom by introducing new products into the marketplace. Paid fast lanes, Quality of Service guarantees or other differentiated products that differ from a well-defined “Internet access” product could be offered to consumers. Before that happens and all things being equal, if a Member purchasing from a public network provider has the opportunity to renegotiate the terms of its relationship with its ISP, it would be better to do that sooner rather than later as the chances of these products proliferating only increase over time;
  3. The coming court case may well kick off a parallel effort in Congress to rewrite the Communications Act in such a way to enshrine a new version of network neutrality into law. While we are skeptical that such a process will yield great value for our Members, we are watching this possibility closely and will participate in a way that preserves our Member’s unique voice in this debate.

Over the last few months, we have reflected upon a message that Commissioner Rosenworcel delivered to us when we met with her at the FCC. She discussed with us the need for fresh voices to reinvigorate a debate that is too often described as a battle between the rich (big ISPs) and the wealthy (big Internet companies). We are more and more convinced that ARL has an important role to play in this proceeding however it evolves. In various ways, the federal government appears to be undermining and reversing investments in basic science and research. We think of the reversal of the FCC’s Network Neutrality rules as part of that broader effort. However, even if the broader political context may be hostile to ARL’s interests, we are even more convinced of the value of open network policies that support ubiquitous access to the Internet whether you are a library patron logging on to one of our larger institutions or whether you are a researcher in the field using a wireless broadband connection to capture cutting edge research findings.  

Finally, it is worth remembering that all is not lost in this temporary moment of policy reversal. The Canadian Radio-Television and Telecommunications Commission has a robust Network Neutrality framework in place to protect our Canadian Member’s interests. It may take another step (or even a few more steps) in the policymaking process; but we leave you with the hope that someday soon, US authorities will see the wisdom of their Canadian counterparts (update: see CARL’s statement on net neutrality here) and adopt a Network Neutrality policy that protects consumers and the virtuous circle of investment and innovation upon which an Open Internet depends.

FCC Eliminates Net Neutrality Rules


On November 22, 2017, one day before the Thanksgiving holiday, the Federal Communications Commission (FCC) published its rule, which, if passed, will completely eliminate the net neutrality rules established by the Commission—and upheld by the Court of Appeals for the D.C. Circuit—in 2015. Despite the fact that millions of Internet users have written to the FCC in favor of net neutrality, the new order would replace strong rules protecting the open Internet with a mere disclosure rule. The Internet would be reclassified back as an “information service” rather than a common carrier and require “transparency” by Internet service providers (ISPs). In essence, the rule allows ISPs to block, throttle or offer paid prioritization provided that they comply with transparency rules and disclose these actions. ARL’s more detailed analysis of the 210-page report and order will be available next week.

Commissioner Clyburn has posted a fact sheet, “Understanding Chairman Pai’s Proposal to Dismantle Net Neutrality.”

Commissioners Rosenworcel and Clyburn, both expected to vote against the new rule, have issued statements on Chairman Pai’s proposed rule.

The FCC will vote on this rule at their next meeting on December 14, 2017.

#OAWeek: Opening LIS Work with the LIS Scholarship Archive

*This is a guest blog post by Vicky Steeves, the Librarian for Research Data Management and Reproducibility at New York University. She serves on the LIS Scholarship Archive Advisory Board.*

Folks in all walks of LIS are celebrating #OAWeek with beautiful posters, polls, social media campaigns, events, and cookies (like these awesomely decorated cookies from the Ryerson Library in Toronto). Most of all, during this week there is a special emphasis  on assisting patrons in opening up their scholarship. However – what about our work, as folks in LIS? What can we do to ‘walk the walk’ of open access?

You can submit your work to the Library and Information Science  Scholarship Archive (LISSA)! LISSA, in partnership with the Center for Open Science, is a free, open source, open access, and community-led archive for scholarship in library and information science and allied fields. On LISSA, LIS workers, students, trainees, and others in the field can make their incredible work open and discoverable, from metadata records to oral histories to manuscripts to data, and more!

Currently on LISSA, there are preprints, postprints, grant narratives, posters, book manuscripts, student work/assignments, data, and code, in a variety of languages, from a diverse authorship! Let’s keep this going! If you are someone who works in LIS and who supports open scholarship, this is what you can do:

  • Submit your work in < 5min.
  • Spread the word about LISSA, and encourage others to submit their work.

For #OAweek, let’s make a strong showing of not only helping our patrons, but our fellow colleagues in libraryarchiveland!

You can get updates from LISSA on or Twitter at @LISSArchive. We have a feed of new work on LISSA via RSS feed or Twitter @LISSA_SCHOL. You may also reach the LISSA board via email at for questions, comments, or general feedback, which is most welcome.

Happy Open Access Week: Move FASTR

This week, October 23-29, 2017, is International Open Access Week, a week to celebrate all things open access.

While there are a number of events happening worldwide, those of us in the United States should turn our attention to the bipartisan bill, Fair Access to Science and Technology Research (FASTR) Act.  This bill, if passed, would codify the 2013 White House Office of Science and Technology Policy memo requiring public access to taxpayer-funded research.  It would do so by requiring agencies with extramural research budgets of $100 million or more to maintain policies that would provide public access to research results, no later than 6 (House version) or 12 months (Senate version) after publication in peer-reviewed journals, and to make them available under terms permitting reuse, such as text and data mining.

Access to research is fundamental in promoting and advancing progress.  Research provides the very building blocks of understanding, learning and innovation.  For Open Access Week, SPARC launched a fantastic website, celebrating openness with concrete examples: Open In Order To. As we promote progress on a diversity of issues, from addressing climate change, to solving malnutrition, to finding new medical technologies, we must ensure equitable access to research results, particularly those that the public has already paid for in terms of taxpayer-funded research.  Congress should swiftly move to pass FASTR and promote the advancement of science and technology. #MoveFASTR. #OAWeek.

What Have Rightholders Said About the Section 108 Fair Use Savings Clause?

As the Copyright Office considers reform of Section 108, the provision of the Copyright Act that provides for specific limitations and exceptions for libraries, one of the critical considerations is whether the revisions that the library and archive community can gain is worth the risk of what might be lost. I noted in my previous blog post that stakeholders like the Association of American Publishers (AAP) and Authors Guild have made it abundantly clear that they would like to strip Section 108 of its fair use savings clause, using the first two examples of their statements that came to mind. A deeper search into the statements of rightholders—primarily in court briefs (party and amici filings), but also in statements before Congress and in the press—confirms this position.

Before getting into the statements of rightholders regarding the relationship between Section 108 and fair use, a reminder of what Section 108(f)(4)’s saving clause says:

(f) Nothing in this section—


(4) in any way affects the right of fair use as provided by section 107, or any contractual obligations assumed at any time by the library or archives when it obtained a copy or phonorecord of a work in its collections

This provision seems pretty unambiguous, stating that “nothing” in Section 108 “in any way affects the right of fair use.” And yet, in litigation, several rightholders have suggested that this clear language doesn’t actually mean what it says it means; instead, they have argued, specific limitations and exceptions do alter the fair use calculus and allowing reliance on fair use threatens specific exceptions. As evidenced by the statements below (which should not be considered a comprehensive list), there is a clear hostility to Section 108’s reference to fair use. As a result, there is a credible and serious risk that lobbyists for these groups would expend tremendous effort to remove the fair use savings clause from Section 108. 

Authors Guild v. HathiTrust

Authors Guild’s Memorandum of Law in Support of Plaintiff’s Motion for Partial Summary Judgment on the Pleadings (District Court for the Southern District of New York)

reading Section 108(f)(4) to allow Defendants to reproduce and distribute copyrighted works in a manner that is specifically promulgated by and beyond the express limits of Section 108 is “outside the plausible readings of the provision.”

Authors Guild’s Motion for Summary Judgment (District Court for the Southern District of New York)

Plaintiffs stand by their position that the conduct to which Defendants admitted in their Answer is more than sufficient to establish that they have exceeded the limitations of Section 108, and that Defendants cannot rely on the “savings clause” in Section 108(0(4) to justify as fair use a project that exceeds practically every limitation in the library exemption. The discovery process only served to adduce additional facts demonstrating just how callous Defendants have been in their disregard for the requirements of that section.

Authors Guild Brief to the Second Circuit on Appeal From the District Court For the Southern District of New York

[T]o read the savings clause as permitting ‘post-108’ reliance on fair use as if no § 108 copying had occurred is to come dangerously close to reading § 108 out of the statute. Given that Congress deemed Section 108 “necessary to exempt much library photocopying from copyright liability, and since Congress did not likely intend to construct complex mechanisms in most of the section only to render them moot via subsection (f)(4), that result is implausible.

 Motion Pictures Association of America (MPAA) Amicus Brief (Second Circuit)

Exceptions to copyright, including Section 107, must be viewed narrowly as compared to the exclusive rights. As the Supreme Court stated, where the Copyright Act “sets forth exceptions to a general rule, we generally construe the exceptions ‘narrowly in order to preserve the primary operation of the provision.’” Tasini v. N.Y. Times Co., 206 F.3d 161, 168 (2d Cir. 2000) (quoting Commissioner v. Clark, 489 U.S. 726, 739, 109 S.Ct. 1455, 103 L.Ed.2d 753 (1989)). In its analysis of whether the uses at issue were fair, the district court instead ignored Section 108 and analyzed fair use broadly and the exclusive rights narrowly, disrupting Congress’s carefully crafted balance in Title 17.


In other words, by enacting Section 108, Congress intended to provide libraries with more liberal, as well as more certain, exceptions than would qualify under fair use. It did not view fair use as an expansion of Section 108 rights, swallowing the Section 108 exceptions, but instead viewed Section 108 as providing more generous uses than might otherwise be allowed under Section 107.

When Section 107 is viewed in the context of Section 108, it becomes inconceivable that Congress would have intended for Section 107 to allow mass digitization of copyrighted works without appropriate restrictions to balance all interests, particularly since it did not do so even in Section 108.


Yet, the district court below did not consider Section 108, concluding that it was irrelevant to its determination of fair use. See Order at 22 n.32 (“I need not decide if the MDP fits within the parameters of 17 U.S.C. § 108 because it unquestionably fits within the definition of fair use.”). In so ruling, the district court lost the benefit of the decades of discussion and careful consideration of stakeholder interests that Section 108 reflects, and that remains ongoing.

Second, the district court misapplied the fair use test and overlooked key facts that weigh heavily against a finding of fair use in this case. In particular, the district court employed a broad interpretation of fair use that effectively reads out of the Copyright Act specific limitations and exceptions that Congress carefully crafted to grant permission for specific uses of copyrighted works by specific groups of users. Indeed, the court all but ignored two provisions that speak directly to the types of uses at issue here – Section 108 (which deals with reproduction by libraries and archives) and Section 121 (which deals with reproduction for blind or other people with disabilities) – and which authorize a far narrower scope of copying than the district court found to be permissible. By concluding that the limits set forth in these specific provisions were irrelevant to its determination of fair use, the district court effectively rendered these provisions mere surplusage. Because the Copyright Act contains numerous such limitations and exceptions dealing with uses of copyrighted works in a host of other contexts, the district court’s broad interpretation of fair use, if followed by other courts, threatens to render superfluous these many carefully-crafted limitations and exceptions, thereby upsetting the careful balance of interests that Congress sought to achieve in the statute.


The district court’s decision to ignore Section 108 in its fair use analysis – and then to adopt an interpretation of fair use well beyond what is authorized by Section 108– effectively rendered the provision surplusage. Doing so violates the cardinal rule . . . that significance and effect shall, if possible, be accorded to every word. . . . [A] statute ought, upon the whole, to be so construed that, if it can be prevented, no clause, sentence, or word shall be superfluous, void, or insignificant.” Tasini v. N.Y. Times Co., 206 F.3d 161, 167 (2d Cir. 2000) (quotation marks omitted); aff’d, 533 U.S. 483 (2001). As the Copyright Office has observed, it is simply “implausible” that Congress intended fair use, when applied to copying by libraries, to excuse activity so far beyond the scope of Section 108 as to render irrelevant all of the distinctions made in Section 108’s carefully crafted provisions. See 1983 Register’s Report on Library Copying, at 97-98.

Association of American Publishers (AAP) Amicus Brief (Second Circuit)

The district court held that Appellees’ mass-scale use of Appellants’ copyrighted works was fair, despite the fact that their activities fall directly within the subject matter of the Section 108 exceptions, yet grossly exceed the uses permitted in Section 108. Where libraries engage in activities that are specifically legislated in Section 108, the courts should look there for guidance. As a general rule of statutory interpretation, where there is overlap between a general exception and a specific exception, the court should apply the more specific law. See Morales v. Trans World Airlines, Inc., 504 U.S. 374, 385 (1992). Congress would not have enacted specific exceptions for libraries and archives in Section 108, with carefully tailored conditions on any copying, and yet intended Section 107 to permit the same activities but without any such conditions or limits. Applying Section 107 as the district court did in this case allows Section 107 to swallow Section 108 entirely, rendering Congress’ careful construct of the latter superfluous.

Authors Guild v. Google

Authors Guild’s Petition for Writ of Certiorari

Finally, Google cannot evade the fact that the decision below eviscerates Section 108, which carefully limits the conditions under which libraries may digitize their books. Google’s only response is to cite Section 108’s savings clause regarding fair use.. But if libraries can obtain unauthorized, full digital copies of their entire collections without regard to Section 108, which explicitly limits library copying, that entire section of the Act becomes meaningless surplussage.

(AAP) Statement Submitted for the Hearing Record, House Judiciary Committee, Subcommittee on Courts, Intellectual Property and the Internet, Hearing on “Preservation and Reuse of Copyrighted Works (April 2, 2014)

Should Congress decide to embark on updating Section108 to provide a balanced set of modern exceptions for these cultural institutions (including museums), AAP urges Congress to keep the following general principles in mind:


  • Fair use is not a substitute for a specific limitation or exception where the unauthorized use at issue is predictable, systematic, and/or large scale. To the extent that Congress determines that such an unauthorized use serves a public purpose worthy of a copyright limitation or exception, the scope of the statutorily-authorized activity should be clearly described and the institutions that would be eligible to engage in that activity should be clearly identified.
  • […]
  • In any revision of Section 108, the relationship between fair use and the specific limitations or exceptions should be more clearly defined. If a particular activity (like copying for preservation purposes or making copies for users) is addressed in a revised Section 108, the safeguards and balances built into the statutory language should not simply be disregarded in favor of applying a fair use analysis. The Congressional intent reflected in the scope of a specific Section 108 limitation or exception should, at a minimum, inform any fair use analysis, and Congress’ intention that it do so should be made explicit in the language of the limitation or exception itself.

Statement of Allan Adler, General Counsel and Vice President of Legal and Government Affairs at AAP in Communications Daily

Congress should “clarify ‘the relationship between the specifics of the Section 108 exemption and more general limitations and exceptions like fair use . . . It makes little sense for Congress to attempt to craft specific limitations and exceptions that take into account the nature of particular users or particular kinds of works if instead people are simply going to look to fair use in order to support such activities.”


Thoughts on the Section 108 Reform Discussion Draft

On Friday, September 15, 2017, the Copyright Office released a discussion document on proposed reform to Section 108 of the Copyright Act, the provision that sets out specific limitations and exceptions for libraries and archives.

In recommending reform, the Copyright Office acknowledges “the fact that many members of the library and archives communities have expressed concern about revising section 108.” However, the Copyright Office is nonetheless convinced that Section 108 should be updated to address the digital age.

The Copyright Office makes several proposals for revision including, among others:

  • Including museums as beneficiaries of the exception as well as adding some additional conditions for eligibility for Section 108
  • Replacing the current published/unpublished distinction with a publicly disseminated/not publicly disseminated distinction
  • Allowing preservation copies for all works to be put into a dark archive
  • Removing the three-copy limit and replacing it with a “reasonably necessary” standard
  • Allowing for a replacement copy to be made for “fragile” copies and expanding off-premises access for replacement copies
  • Eliminating the exclusion of certain works from the provisions permitting copies to be made at the request of users
  • Providing that there is no federal copyright infringement for preservation reproductions in violation of non-bargained-for contractual language, though actions may still be brought for contractual violations
  • Allowing institutions to contract with third parties to perform the reproduction functions under section 108

The report itself, as well as the recommendations, is clearly the product of a great deal of thought and engagement with stakeholders. The recommendations clearly lay out the reasoning behind the proposals and give concrete examples illustrating how the new provisions would operate.

For the most part, the recommended changes to Section 108 reflect the current state of what libraries are already doing under Section 108, supplemented by the fair use right under Section 107. Libraries are already engaged in digitization activities, including mass digitization, for preservation purposes. Although there is a three-copy limit under current Section 108, libraries already engage in the going beyond this limit when making digital copies for the purpose of creating one end-use copy; this is simply a practical extension of what Section 108 intended to permit and fair use should be thought to naturally extend to such temporary, incidental copies.

While codifying these activities to provide a safe harbor so that libraries do not need to rely on fair use is beneficial, in some ways the report fails to fully extend to many of the projects libraries currently engage in. For example, the preservation copies would be limited to a dark archive; libraries already routinely rely on fair use to digitize special collections and provide access to the public. The Copyright Office also chooses not to propose an exception for web-harvesting, though many libraries currently preserve web pages around particular issues.

Although the report contains many positive recommendations—even if they do not fully reflect the current activities of many libraries and archives—one of the deepest concerns regarding reform of Section 108 is that any gains that could be made to update the provision would not be worth the risk of potentially losing the fair use savings clause. Certainly, there is no dispute that Section 108, original written for the 1976 Copyright Act, could benefit from some updates for the digital age. However, these revisions are not necessary because fair use sufficiently updates Section 108 to cover activities necessary in the digital age. Indeed, the Second Circuit confirmed in Authors Guild v. HathiTrust that Section 107 complements the specific provisions in 108.

To be clear, the Copyright Office’s discussion draft explicitly recommends retention of the savings clause and its confirmation of the importance of fair use is much appreciated.

In recognition of Congress’s intent to maintain both section 108 and fair use as tools for libraries and archives, and the use and acceptance of this principle by eligible institutions, copyright owners, users, and the courts, the Copyright Office feels strongly that the fair use savings clause must remain in section 108 regardless of any other amendments that may be found necessary. Even a revised section 108 cannot address every situation in which public policy would deem it reasonable for a library or archives to reproduce or distribute a copy of a work without first attempting to seek permission. In fact, this Discussion Document explicitly leaves web harvesting and similar collection of Internet content by libraries and archives to fair use, and there are other circumstances not addressed by section 108, such as electronic reserves, where fair use must continue to govern. Thus, it is essential that the fair use savings clause stay in section 108.

While the Copyright Office’s commitment to retaining the fair use savings clause is a welcome inclusion in the report, a lingering concern remains as to whether the fair use savings clause would survive the legislative process. Although the Copyright Office recognizes the wisdom and importance of including a savings clause, it is clear that other stakeholders—particularly the Association of American Publishers (AAP) and the Authors Guild—want to remove the savings clause.

In litigation between the Authors Guild and HathiTrust, the Authors Guild advanced the argument that libraries could not rely on fair use because of the existence of a specific limitation and exception under the Copyright Act. Even though the statute clearly provides a savings clause that reads, “Nothing in this section in any way affects the right of fair use . . .” the Authors Guild nonetheless argued against its application. The Second Circuit dismissed this argument in a footnote, but the Authors Guild’s actions in the case show a clear intention to attack fair use.

Similarly, last year, Allan Adler, General Counsel and Vice President of Legal and Government Affairs at AAP, was quoted in Communications Daily as advocating for Congress to “clarify ‘the relationship between the specifics of the Section 108 exemption and more general limitations and exemptions like fair use . . . It makes little sense for Congress to attempt to craft specific limitations and exceptions that take into account the nature of particular users or particular kinds of works if instead people are simply going to look to fair use in order to support such activities.”

With stakeholders like the AAP and Authors Guild eager to strip Section 108 of its fair use savings clause, supporting Section 108 reform becomes a very risky proposition. While the Copyright Office recommends some reasonable and sensible updates to Section 108 for the digital age, these improvements must be weighed against the risk of losing the fair use savings clause; the proposed changes are clearly not worth trading in the savings clause, but whether it is worth the risk of the legislative process remains a question.