Tag Archives: aap

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  • Replacing the current published/unpublished distinction with a publicly disseminated/not publicly disseminated distinction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.

Library Copyright Alliance Files Amicus Brief in GSU E-Reserves Case

On Monday, February 13, 2017, ARL together with the American Libraries Association, Association of College and Research Libraries and the Electronic Frontier Foundation filed an amicus brief in support of Georgia State University (GSU) in the e-reserves fair use case. After years of litigation and two opinions by the district court and one by the Eleventh Circuit, the case is once again before the Eleventh Circuit.

The brief opens by noting that that the continued appeals in the case are unnecessary:

Appellant Publishers (“Publishers”) and their amici don’t know when to quit. Publishers could have declared victory in 2009, when GSU modified its e-reserves policy in response to the initiation of this lawsuit. Publishers could have declared victory in 2014 after this Court reversed the district court’s 2012 decision and provided detailed guidance on how fair use principles should be applied to e-reserves. Publishers could have concluded this litigation after the district court refused to re-open the record on remand. Instead, Publishers doggedly pursue their claims concerning excerpts used in three school terms, eight years ago.

The brief then urges the Eleventh Circuit to affirm the lower court’s decision. In doing so, the brief notes that GSU’s copyright policy is consistent with the ARL Code of Best Practices for Academic and Research Libraries. The brief also suggests that the district court’s analysis of the second fair use factor (nature of the work) was flawed and the context of the works actually favors fair use. Finally, the brief notes the importance of the public interest in considering the fourth fair use factor (market harm).

On the second factor, the brief states that analysis of the second factor should be focused on “ascertain[ing] whether copyright was needed to incentivize creation and, by extension, whether or not a fair use finding helps serve the purposes of copyright.”  The brief points out that the scholarly community is a “gift culture” and while

We do not suggest that scholarly works should receive no copyright protection.  But we do agree with Judge Posner that copyright-based incentives are less necessary in the context of many academic works to serve copyright’s own fundamental goal: to further the progress of science.  Because scholarly works require “thinner” copyright protection to ensure their production, the second factor strongly favors a fair use finding with respect to all of the works at issue here.

With respect to the fourth factor, the brief points the constraints of library budgets and the growth of open access publishing.  It states that,

Placed in this context, it is clear that the public benefit of e-reserve practices such as GSU’s far outweighs any potential cost to publishers.  Although some academic publishers may have difficulty adjusting to the digital environment, predictions of the devastating impact the decision below would have on the evolving scholarly communications ecosystem are complete fiction.