One week after testifying before the House Committee on the Judiciary Subcommittee on Courts, Intellectual Property and the Internet during the Hearing on Preservation and Reuse of Copyrighted Works, James G. Neal of Columbia University in New York City submitted supplemental testimony to address questions raised during the hearing and expand on his earlier written statement. The supplemental testimony addresses five issues: collective licensing, contractual restrictions on copyright exceptions, preservation of born-digital materials, the cost of preservation, and community fair use best practices. The Library Copyright Alliance has endorsed the supplemental statement.
The supplemental testimony noted that collective rights’ organizations (CROs) often represent problematic models that fail to pay artists and authors the revenues they earned and cautions against relying on such models as solutions, particularly with respect to preservation, mass digitization and orphan works. CROs have had a history of corruption, mismanagement, lack of transparency, among other issues. The statement pointed to two specific examples of problematic behavior of CROs. The first example is that the Copyright Clearance Center (CCC) has used fees it collected from research and academic libraries to sue Georgia State University over the use of books written by academics in an e-reserves case. The second example is the Educational Rights Collective Canada that, in fifteen years of operation, has failed to distribute any royalties to authors but is $830,000 in debt.
Contractual Restrictions on Copyright Exceptions
The supplemental testimony expanded on Neal’s oral testimony with respect to ensuring that contractual provisions do not circumvent the exceptions in the Copyright Act. The testimony noted that in licensing electronic resources, publishers often include terms that restrict the fair use right, library exceptions and first sale doctrine. It also pointed out that restricting such contractual provisions exists in numerous areas, both domestically and in foreign jurisdictions. Neal concluded “As part of its review of the Copyright Act, the Subcommittee should assess the adverse impact of the potential replacement of the public law of copyright with the private law of contract, both on libraries and the public at large. I believe that Congress should adopt restrictions on the enforcement of contractual terms that attempt to limit exceptions in the Copyright Act such as first sale, fair use or interlibrary loan under Section 108.”
Preservation of Born-Digital Materials
Neal’s supplemental testimony expanded on his oral testimony regarding the need to preserve born-digital materials. The supplemental statement pointed to studies that reveal that digital materials are also subject to risk of loss, corruption and destruction. It noted also the issue of website archiving and importance of digital preservation in order to address the problem of “link rot” and preserve the cultural heritage expressed through websites. Neal asserted that it is “essential” to rely on fair use to preserve linked references.
Cost of Preservation
Responding to a question from a member of the Judiciary Committee concerning the cost of preservation and access, Neal expanded on creative solutions to address preservation efforts, noting that HathiTrust and the Digital Preservation Network represent cooperative, shared infrastructure models that avoid unnecessary duplication and can reduce overall costs of preservation. The supplemental statement also noted that while it would have taken the University of Michigan 1,000 years to digitize its collection of books, Google’s assistance has allowed it to already largely complete the digitization effort.
Community Fair Use Best Practices
The final section of Neal’s supplemental testimony endorsed the development of fair use best practices and includes a copy of ARL’s Code of Best Practices in Fair Use for Academic and Research Libraries.