Tag Archives: copyright office

ICYMI: New Advocacy and Public Policy Update

On May 19, 2017, ARL released its latest Advocacy and Public Policy Update. The topics covered in this update include various copyright issues (Register of Copyrights bill, Copyright Office study on moral rights, Copyright Office rulemaking on modernizing copyright recordation, and numerous amicus briefs filed), LSU v. Elsevier, appropriations, access to and preservation of government data, net neutrality, developments on trade agreements, and issues related to immigration and border control.  The full update is available here.

 

Finding Fair Use in Unexpected Places

We’re taking part in 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 theme is: 21st Century Creators: Copyright law should account for the interests of all creators, not just those backed by traditional copyright industries. YouTube creators, remixers, fan artists and independent musicians (among others) are all part of the community of creators that encourage cultural progress and innovation.

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

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In December 2016, strong endorsements of fair use appeared in somewhat unexpected places.

First, the Joint Strategic Plan (“JSP”) released by the Office of the Intellectual Property Enforcement Coordinator on December 12, 2016, stated that nothing in the JSP

should be interpreted as limiting the scope of exceptions and limitations, such as fair use, under U.S. copyright law. To the contrary, the basic principles that have permitted the Internet to thrive must be safeguarded, and the Strategic Plan expressly recognizes and celebrates advancements in technology. The way people use and access content – which has led to new and innovative uses of media (e.g., remixes and mashups involving music, video and the visual arts), and fair use, for example – will undoubtedly continue to evolve. We must work to foster creativity, understanding the role of exceptions and limitations as not only part of our body of laws, but as an important part of our culture. Indeed, it is the combination of strong copyright rights with a balance between the protection of rights and exceptions and limitations that encourages creativity, promotes innovation, and ensures our freedom of speech and creative expression are respected.

The JSP concludes this discussion by observing that “IP enforcement options must be crafted to allow for effective measures against actors that unlawfully prey on the works of rights holders, while ensuring that enforcement activities do not affect lawful activity.”

Second, the Copyright Office, in its December 15, 2016 report on software enabled consumer products, noted that “courts repeatedly have used the fair use doctrine to permit copying necessary to enable the creation of interoperable software products.” In support of this declaration, the report discussed the decisions in Atari v. Nintendo, Sega v. Accolade, and Sony v. Connectix, where the courts found that fair use excused the copying performed during the course of reverse engineering. The report added that “the case law generally holds that intermediate copying for purposes of reverse engineering and creation of interoperable products is, in most cases, a fair use.”

The report concluded its discussion of fair use by stating that “proper application of these principles should ensure that copyright law preserves the ability to create interoperable products and services.” In support of this statement, the report quoted the Ninth Circuit in Sega v. Accolade stating that “an attempt to monopolize the market by making it impossible for others to compete runs counter to the statutory purpose of promoting creative expression and cannot constitute a strong equitable basis for resisting the invocation of the fair use doctrine.”

Third, in an amicus brief it filed in Georgia State University electronic reserves case on December 9, 2016, the Copyright Alliance stated that it “is a staunch supporter of fair use principles, which allow for copyright to achieve it purpose without undermining the incentive to create. Its members regularly rely on these principles to create new, expressive, transformative works, consistent with the Copyright Act’s inherent purpose.”

Fair use is often referred to as a “user’s right.” But as these statements correctly indicate, fair use is a creator’s right as well. Fair use is essential to the creation of new works in all forms, including books, films, music, and software.

ICYMI: Maria Pallante Removed as Register of Copyrights

On Friday, October 21, 2016, Librarian of Congress Carla Hayden announced the removal of Maria Pallante as Register of Copyrights.  Hayden appointed Maria Pallante as Senior Advisor for Digital Strategy and Karyn Temple Claggett, currently the Associate Register, as the Acting Register of Copyrights.  Under Pallante’s direction, the Copyright Office made orphan works legislation and reform of Section 108, two areas where the library community has raised serious concerns, strong priorities. Pallante also advocated for the Copyright Office to become an independent agency, rather than being housed in the Library of Congress.

A press release issued today by House Judiciary Chairman Goodlatte (R-Va.) and Ranking Member Conyers (D-Mi.) indicates that Maria Pallante will be leaving the Copyright Office.  This press release also suggests that Congress may take this opportunity to “examine the selection process for the new register.”  Such an examination may be an issue considered as Congress continues to look at bills to modernize the Copyright Office.

Edited to add: On October 25, 2016, Politico confirmed news that Maria Pallante resigned.  Her resignation letter is available here.

Below are some articles covering this recent development:

ICYMI: Library Copyright Alliance Files Comments Regarding Mandatory Deposit

On August 18, 2016, the Library Copyright Alliance (LCA) filed a response to the Copyright Office’s Notice of Inquiry regarding mandatory deposit of online-only books and sound recordings.  LCA’s comments support expansion of the 2010 interim rule, which applied to mandatory deposit of online-only electronic serials (newspapers, journals, etc.), to books and sound recordings.

The comments point out the critical role mandatory deposit plays in the Library’s mission to collect, preserve and provide access to all types of works, regardless of publication type.  LCA’s comments point out:

Without mandatory deposit, works created in the digital age could be lost forever. We have seen this loss happen in the film industry. Approximately half of all films made before 1950, and most silent films, are unavailable because no effective mechanism existed at the national level to preserve these important pieces of our cultural heritage and history. The Library is actively and commendably trying to ensure that such enormous permanent losses are not replicated in the digital era. Mandatory deposit of online-only works is the necessary and appropriate solution. Although the present Notice of Inquiry presents only the issue of extending the interim rule to online-only books and sound recordings, serious consideration also should be given to applying the rule to other categories of works, such as photographs and films, to ensure that all types of works are adequately preserved and included in our national Library.

The comments also support expanding access to works collected through mandatory deposit and:

limiting simultaneous access to two on-site users at dedicated terminals is too restrictive and not in accord with current practices in the library community. Access is an essential component of the Library’s mission and such a limited policy hampers the spread of knowledge and culture. Extension of the applicability of the interim rule should involve reconsideration of the current, overly conservative limitation of accessing materials to two on-site terminals at the Library.

In total, there were fifteen submissions to the Copyright Office with respect to this notice of inquiry.  Libraries submitting comments include the University of Michigan, University of California Los Angeles, and University of Virginia.

A New Approach to Copyright Exceptions and Limitations

*Guest post by Jonathan Band, policybandwidth*

Any discussion with policymakers or rightsholders concerning the possible adoption of new copyright exceptions and limitations invariably centers on how to make sure that the exception is not abused. This leads to lengthy negotiations resulting in complex, difficult-to-use provisions that resemble the tax code. This pattern has been repeated in connection to the exceptions to section 1201 of the Digital Millennium Copyright Act, the TEACH Act for distance education (17 U.S.C. § 110(2)), the Chafee Amendment for the print disabled (17 U.S.C. § 121), and orphan works legislation, to name just a few of the more salient examples.

It’s time for this pattern to be broken. Rightsholders have nothing to fear from exceptions and their possible abuse. Infringement deriving from abuse of exceptions likely would be a tiny fraction of the overall incidence of infringement. At the same time, preventing the public benefits that flow from exceptions undermines the purpose of the copyright system.

Section 108

Unfortunately, this pattern of developing overly restrictive exceptions may soon repeat itself in the context of the exception for libraries and archives in 17 U.S.C. § 108. In 2005, the Library of Congress and the Copyright Office convened a study group consisting of librarians and publishers to consider how to update section 108 for the digital age. After three contentious years, the study group issued a report recommending several possible amendments to section 108, but could not reach consensus on the details of those amendments, nor on how to handle other important issues such as copies for users or license restrictions.

Notwithstanding this lack of consensus, and over the objection of most libraries and archives, the Copyright Office has decided to urge Congress to revise section 108. This past June, the Copyright Office issued a notice of inquiry stating that it seeks “to finalize its legislative recommendation” concerning a “re-drafting” of section 108. In meetings with stakeholders pursuant to this notice of inquiry, the Copyright Office stated that it hopes to complete its legislative recommendation and transmit it to Congress this fall.

Although the Copyright Office hopes to make section 108 simpler and more user-friendly, the Office’s likely concern about “leakage” almost certainly guarantees that the re-drafted section 108 will be complicated and not understandable by librarians without law degrees. And even if the Office somehow manages to produce a streamlined and comprehensible proposal, the rightsholders can be expected to insist on changes to eliminate possible abuse that will inevitably make the proposal more complex.

There is no doubt that digital networks have facilitated copyright infringement. And while the adverse impact of this infringement probably has been overstated by rightsholders, it is perfectly legitimate for rightsholders to take reasonable measures to address infringement. The operative word here is reasonable. And making exceptions for libraries, educational institutions, or the print disabled difficult to use in order to reduce potential leakage is not reasonable.

There are approximately 200 million smartphone users in the United States, and 2 billion smartphone users worldwide. Each smartphone has the capability of reproducing entire copyrighted works and uploading them to the Internet, where they can be disseminated globally. In a world where this technological capability is literally at the fingertips of so many users, what possible difference could it make if there is a small amount of leakage from a library?

Consider the following examples. Under existing section 108(c), a library is permitted to make a replacement copy of a published work that is damaged or lost if the library determines that an unused replacement cannot be obtained at a fair price. While the library may circulate a physical replacement copy, it cannot make a copy available in a digital format outside the library premises. The Section 108 study group recommended modifying the prohibition on off-site lending of digital replacement copies only to allow the lending of a copy reproduced in a digital physical medium if the library’s original copy was also in a digital physical medium. In other words, if the library owned an audiobook CD that was deteriorating, the study group proposal would allow the library to make and lend a replacement CD, but it would not be able to stream the digital file to a user. Similarly, if its original copy wasn’t digital, the library would not be able to make a digital copy viewable outside of the library premises.

The publishers in the Section 108 study group insisted on these restrictions because they were afraid that the digital files would be retransmitted on the Internet. This concern overlooks four facts. First, the exception would only be available if a replacement copy couldn’t be purchased, i.e., the work was out of print so there would be no market harm, even if unlawful retransmission occurred. Second, unlawful copies of any work for which there is current and likely future demand are already available online, so how much incremental harm could be caused by unlawful retransmission of the library’s replacement copy? Third, technological measures exist to make retransmission difficult. Fourth, as fair use jurisprudence has evolved, making the digital copy available outside the library premises with appropriate technological protections likely would be a fair use. In other words, the library could probably engage in the activity anyway under a fair use theory, so why not save the library the burden of performing the fair use analysis and simply permit it under an explicit exception?

A similar analysis could be performed for many of the study group’s other recommendations. For example, the proposed exception for the archiving of publicly accessible websites was unnecessarily regulatory, especially considering that commercial entities such as Google and Microsoft routinely engage in this activity under a fair use theory.

It is the awareness that section 108 reform will be extremely contentious and unlikely to produce positive results that has led to library opposition to the Copyright Office’s initiative.

Section 1201 Rulemaking

Likewise, the exemptions that the Library of Congress has adopted during the course of the triennial rulemaking under section 1201 of the DMCA reflect an unhealthy obsession with possible abuse. The current exemption, adopted in 2015, permits circumvention of the technological protections on lawfully acquired motion pictures by college and university faculty and students, for use of short portions for educational purposes “in film studies or other courses requiring close analysis of film and media excerpts…where the person engaging in circumvention reasonably believes that screen-capture software or other non-circumventing alternatives are unable to produce the required level of high-quality content.” Thus, an instructor or a student may circumvent only after determining that no alternative to circumvention will produce the “level of high-quality content.” This would necessitate that the instructor or student determine: 1) whether the course requires “close analysis of film and media excerpts;” 2) what level of quality excerpt she needs to satisfy her educational purpose; 3) what are the various available alternatives to circumvention; and 4) whether any of these alternatives will produce the required level of quality excerpt. In the K-12 context, this exemption is available only to instructors, not students.

The Copyright Office designed an exemption that requires educational users to jump through many hoops so as to ensure that the exemption is not abused. At the insistence of rightsholders, the Copyright Office evidently considers circumvention to be a highly dangerous activity that leaves films vulnerable to widespread infringement, and thus must be regulated carefully. However, there is no evidence that any infringement resulted from earlier iterations of the exemption that were more straightforward. Further, the software necessary to circumvent the technological protection measures on DVDs or other storage media is widely available on the Internet and easy to use. Moreover, infringing copies of most films can be found on the Internet soon after release. Thus, a simple, broad circumvention exemption for any educational use would not harm the market for the films in any meaningful way. (At one time, some film studios planned to create a market for licensing film clips to educational institutions, but the enormous number of works educators need to access made development of such a market infeasible.)

A New Approach

Rightsholders’ frustration with their loss of control over their content is understandable. It also is understandable that this frustration would fuel a desire to exercise control wherever they can, even though it makes no difference to their bottom line.

Although the rightsholders’ frustration is understandable, it is bad copyright policy to impose the costs of overly restrictive exceptions on libraries and educational institutions where there is no offsetting benefit to rightsholders or society at large. As the Supreme Court recently stated in Kirtsaeng v. Wiley, “copyright law ultimately serves the purpose of enriching the general public through access to creative works.” The Supreme Court then explained that “the statute achieves that end by striking a balance between two subsidiary aims: encouraging and rewarding authors’ creations while enabling others to build on that work.” Exceptions and limitations are the means to achieve the aim of enabling others to build on a work.

Rather than fight reasonable adjustments to Title 17 to accommodate digital technology, rightsholders should embrace them. This not only would better meet the objectives of the copyright system, it also would be in the long run best interest of rightsholders. Instead of advocating for narrow section 1201 exemptions for educational uses of film clips, studios should encourage the broadest possible use of films in classrooms. Doing so would more deeply entrench the role of films in American culture and society.

Similarly, publishers should facilitate libraries making the robust use of their collections. Libraries spend $4 billion a year acquiring books and other materials. The more access libraries are able to provide to their collections—the more libraries are used—the easier it is for libraries to secure the budget they need to purchase more materials. Additionally, greater access to written materials encourages literacy, which in turn leads to greater demand for written materials. Finally, for many users, the alternative to accessing materials through libraries would not be to purchase the materials, but to find infringing copies on the Internet.

The same logic applies to remixes and fan fiction. More enlightened rightsholders have recognized that these activities deepen fan loyalty and result in increased sales. Additionally, these activities train the next generation of artists. And of course, reasonable exceptions enhance the credibility of the copyright system generality.

In short, rightsholders should stop treating libraries and educational institutions—their biggest customers—as their copyright enemies, and instead assist them in promoting the creation and dissemination of culture by supporting the broadest possible copyright exceptions. If rightsholders can’t change direction on their own, policymakers in Congress, the Copyright Office, and the Executive Branch should lead the way. But until rightsholders and policymakers change their approach to exceptions, attempts to fashion new exceptions will largely be exercises in futility.

 

Why is the Copyright Office Trying to Reform Section 108?

On July 26, the Library Copyright Alliance (LCA) met with the Copyright Office, in response to the Office’s Notice of Inquiry, to give our views on Section 108—namely, LCA’s opposition to amendment. LCA previously released a statement, consistent with previous documents and statements, expressing deep concern over efforts to reform Section 108. As LCA noted in its most recent statement on Section 108, the library community opposes reform of this section because: 1) Section 108 is not obsolete; 2) fair use provides a sufficient update when necessary; 3) amending Section 108 has inherent risks and could limit what libraries currently do today, including the possibility of affecting fair use; 4) amendment of this section would be highly contentious and a time and resource intensive process.

LCA opened the meeting by reiterating our opposition to reform of Section 108, expanding on the points made in the written statement. Many libraries similarly voiced opposition to Section 108 reform during their meetings with the Copyright Office. Given that the vast majority of the community benefiting from the exception does not want to see Section 108 amended, it is disconcerting that the Copyright Office is planning to go ahead with a recommendation to reform this provision of the Copyright Act. Archives, the other beneficiaries of Section 108, have also voiced opposition to Section 108 reform (see: Society of American Archivists and the Internet Archive statements and blog posts). Given that beneficiaries of this provision oppose any updates to Section 108, that—according to those who actually rely on the provision on a daily basis—Section 108 is not obsolete and continues to function well forty years after its enactment, on what basis is the Copyright Office going forward with its recommendation?

When LCA met with the Copyright Office, we were given two answers. The first, the Copyright Office said, is to add museums as a beneficiary to Section 108, a recommendation made by the Section 108 Study Group. The Copyright Office argued that as a potential beneficiary, museums were strong advocates for reform. The second reason was decidedly less persuasive. Supposedly, authors who benefit from library access and are therefore beneficiaries of Section 108 have advocated for amendment to this provision. While authors may certainly be affected by the various limitations and exceptions under copyright law, it is doubtful that groups such as the Authors Guild want reform because of insufficient access to works under Section 108. Of course, because of the way the Copyright Office structured the process—requiring in person meetings or, if necessary, phone discussions—there is no written record.

One of the big complaints LCA has had about the current process is this utter lack of transparency regarding the meetings. LCA’s written statement noted, “LCA is concerned about the lack of transparency relating to this inquiry. LCA expects the Copyright Office to publish a list of the interested parties it meets in the course of this inquiry as well as a detailed summary of what each of these parties advised.” While the Copyright Office has agreed to release a list of everyone they have met with regarding Section 108 reform, it will not be issuing a summary of what was discussed in those meetings. The lack of substantive information regarding the topics of conversation and recommendations by various stakeholders is disappointing. We will not know the substance of the reforms proposed by stakeholders. While authors may indeed be pushing for 108 reform, as the Copyright Office stated in LCA’s meeting, whether it is because they find a lack of access to works in libraries (as the Copyright Office implied) or because they want to restrict library activity (as the Authors Guild certainly tried to do as evidenced by their lawsuit and briefs in its litigation against HathiTrust) cannot be confirmed.

Furthermore, without a written record, comments made during the meeting may be misunderstood. LCA did, for example, discuss some substantive changes to 108 that might be beneficial while trying to reiterate opposition to reform. However, could the Copyright Office construe it as support for reform? Could the Copyright Office issue a legislative proposal and state that the Library Copyright Alliance was supportive of certain concepts, such as contract preemption (a provision which would specify that contracts cannot override limitations and exceptions), and therefore supportive of reform? Hopefully, the Copyright Office will be upfront in any recommendation it makes by putting its proposal in the proper context, explaining that stakeholders have differing approaches and positions with respect to 108 reform efforts.

Ultimately, it seems like a waste of time to put in so much effort to try to reform a section of the copyright law that is actually functioning pretty well. Contrary to the Copyright Office’s repeated assertions that Section 108 is “obsolete,” libraries rely on this provision every day to make preservation copies, to replace items in older formats, to engage in inter-library loan, to reproduce copies for patrons, and more. Copyright Office resources would be better spent addressing areas of copyright that are in greater need of reform, like Section 1201 and the incredibly burdensome process by which one must go through to request an exemption (which the Copyright Office is indeed reviewing), statutory damages, or truly outdated sections of the Copyright Act that refer to things like coin-operated equipment and players (a comment brought up by Jonathan Band during LCA’s meeting).

What’s next? Instead of focusing on the areas in true need of reform or sections that are obsolete, the Copyright Office is pushing forward with a proposal to reform a functioning section of the law. The Copyright Office noted that it was wrapping up its meetings with stakeholders and that it was unlikely to solicit any written comments. The Copyright Office stated that it would prepare a legislative recommendation to be released in the fall or winter. ARL and LCA will carefully review the proposal once it is released. Ultimately, however, the inherent risks in reforming Section 108 are unlikely to outweigh what may be modest benefits in an update to a section of the copyright act that is actually working.

For Further Reading: TechDirt recently released a great post explaining, “Copyright Office Intent on Changing The Part of Copyright That Protects Libraries & Archives, Even Though No One Wants it Changed.”

LCA Submits Comments on Section 1201 to the Copyright Office

*This post is written by Caile Morris, ARL Law and Policy Fellow*

The Copyright Office published a notice of inquiry on December 29, 2015, announcing a public study to “assess the operation of section 1201 of title 17, United States Code, including the triennial rulemaking process to adopt exemptions to the prohibition against circumvention of technological measures that control access to copyrighted works.” ARL, along with the American Library Association and the Association of College and Research Libraries, submitted comments and reply comments through the Library Copyright Alliance (LCA). Both the comments and reply comments expanded on section 1201’s fatal flaw: that the language of the statute has the potential to prohibit circumvention of technological protection measures (TPMs) for lawful purposes.

Comments

On March 3, 2016, LCA filed comments on section 1201 in response to the Copyright Office’s notice of inquiry. The core message is that the failing of 1201 is its potential to prohibit not just unlawful infringing activities, but also circumvention for lawful purposes. The comments explore section 1201 prior to enactment, efforts to amend 1201 following enactment, the circuit split that has resulted from the flawed language, and recommendations for how 1201 might be amended.

LCA points out the difficulties in applying 1201, as evidenced by the current circuit split. Critics have noted that 1201 could chill legitimate purposes, such as research into computer security and prevent lawful copying under the fair use doctrine or library exception codified in the Copyright Act, and generally promote anti-competitive effects. As LCA’s comments point out,

These critics’ worst fears about the anti-competitive effect of the statute seemed to be validated when two dominant companies attempted to use section 1201 to threaten competitors in aftermarkets. The [Federal Circuit’s] Chamberlain case involved universal transmitters for garage door openers, while the [Sixth Circuit’s] Lexmark case involved toner cartridges for printers. Fortunately, the judges in these cases interpreted section 1201 in a manner that prevented its anti-competitive use. The Ninth Circuit’s decision in MDY v. Blizzard, however, has challenged this interpretation.

The LCA comments address the triennial rulemaking to adopt temporary exemptions to section 1201(a)(1)’s prohibition on circumvention as “an exercise in legal theatre” because the rulemaking only applies to the prohibition against circumvention of TPMs, but not to the prohibition of the development and distribution of circumvention tools. This, in effect, makes a legally permitted activity difficult to carry out, as the tools necessary to do so are potentially illegal to acquire. Other burdens of the process include high costs in time and money, lack of representation for the average member of the public, the language of the exemptions becoming increasingly convoluted, and having to petition for previously granted exemptions every three years de novo.

LCA’s comments recommend several possible amendments to section 1201 in order to resolve the flaws. For example, LCA endorses the approach of the Unlocking Technology Act of 2013 which attaches liability to circumvention only if infringement is enabled. In the alternative, additional permanent exceptions should be enacted for educational uses, the print disabled, and embedded software. Additionally, the rulemaking should apply not only to section 1201(a)(1), but also to sections 1201(a)(2) and (b). LCA also recommends that final rulemaking authority be shifted to the Assistant Secretary of Communications and Information of the Department of Commerce, because that office has more expertise in evaluating adverse effects of a circumvention prohibition. Furthermore, an opponent of a previously granted exemption should bear the burden of demonstrating why the exemption should not be renewed or modified, which is under the purview of the Copyright Office to change; nothing in the language of section 1201 dictates that review of the triennial rulemakings should be de novo. Finally, the language of the exemptions should be broader and simpler, promoting easier application of the exemptions by the public.

Reply Comments

On April 1, 2016, LCA submitted reply comments primarily responding to the comments of other participants in the notice of inquiry, while reiterating the importance of amending the central flaw of section 1201.

The reply comments identify a “leap of logic” by many content and rights holders industries comments that TPMs would fail but for the legal prohibitions on their circumvention and the creation and distribution of circumvention tools. In particular, the joint comments of the Association of American Publishers, the Motion Picture Association of American, and the Recording Industry Association of America argues that “the protections of Chapter 12 have enabled an enormous variety of flexible, legitimate digital business models to emerge and thrive….” In reply, LCA points out, “if TPMS are so weak that they must be bolstered by legal protections, then why employ TPMs in the first place?” Just because TPMs are important for a business model does not diminish their effectiveness absent legal protection. In addition, there is no real evidence that legal protection of TPMs has contributed to how effective they are. LCA argues that even if there is positive impact from section 1201 as currently written, that the negative impact far outweighs the positive, and revision is justified.

Going forward, the Copyright Office will hold public roundtables to continue its study of section 1201 on May 19 & 20, 2016 in Washington, DC, and May 25 & 26, 2016 in San Francisco, CA. Members of the public are invited to participate, and must submit a request form by April 18, 2016.

New 1201 Rules on Exemptions to Prohibition on Circumvention of Technological Protection Measures Released

On October 27, 2015, the Library of Congress released its final rules for the current cycle of the Digital Millennium Copyright Act’s (DMCA) Section 1201 rulemaking, setting forth exemptions from the prohibition against circumvention of technological protection measures (TPMs).  Every three years, proponents of exemptions must engage in a long process to seek renewal or expansion of existing exemptions or the granting of new exemptions in order to circumvent TPMs for non-infringing uses.  The new exemptions expand the previously granted exemptions in several areas and also grant new ones.

ARL, as part of the Library Copyright Alliance (LCA) submitted petitions for proposed exemptions requesting renewal of an exemption grating people who are print disabled circumvention of technological protection measures on literary works distributed electronically as well as renewal and expansion of an exemption for motion picture excerpts for educational purposes.  LCA also joined in five filings that provide evidence for the need of various exceptions that have been proposed including for: use of audiovisual works for educational use, for MOOCs, and for informal learning and K-12; e-book accessibility; and 3-D printing.

The new rules renew the exemption for literary works distributed in electronic form for persons who are blind, visually impaired or print disabled.  Notably, there was no opposition to renewing the exemption granted in 2012 and the Association of American Publishers filed comments indicating it did not object to this renewal.  Additionally, the 2015 rules permit circumvention for motion picture excerpts for educational purposes.  In a long and detailed rule, the new exemption permits circumvention of DVDs and Blu-ray discs for the use of short portions of motion pictures by college and university faculty and students in film studies or courses requiring close analysis of film and media excerpts and by the faculty of massive open online courses (MOOCs) in film studies or other courses requiring close analysis of film and media excerpts (among other specific exceptions regarding use of motion picture excerpts).

The new exemptions also permit circumvention to access video games for the purpose of copying and modification to restore access to the game when necessary to allow preservation by a library, archive or museum.

Among other exemptions not directly related to libraries and higher education, but that highlight the absurdity of the process, the Copyright Office and Library of Congress considered exemptions to permit circumvention for the purpose of diagnosis, repair and modification of vehicles and for the purpose of security testing on vehicles or medical devices implanted in patients.  In April 2015, Wired published a piece highlighting the absurdity of using technological protection measures and copyright to prevent individuals from tinkering with items that they own in a piece titled “We Can’t Let John Deere Destroy the Very Idea of Ownership.”  While the Library of Congress ultimately granted (again, highly detailed) exemptions in these categories, but the exemption that allows diagnosis, repair or modification of a vehicle will not go into effect for 12 months.

The National Telecommunications and Information Administration (NTIA) submitted its recommendations to the Copyright Office and noted concerns over the potential misuse of technological protection measures for non-copyright purposes and cautions against giving too much weight to non-copyright concerns implicated by proposed exemptions:

While there have long been proposed exemptions that implicated issues unrelated to copyright law, the sixth triennial rulemaking has stood out for its extensive discussions of matters with no or at best a very tenuous nexus to copyright protection.  Parties have, in this proceeding, raised concerns about medical device safety, vehicle emissions standards, best practices in software vulnerability disclosure, and other issues that are not contemplated in copyright law. In asserting the relevance of such matters to this proceeding, parties often cite the fifth statutory factor in this rulemaking, which allows the Librarian of Congress (and by extension, the Copyright Office) to consider “such other factors as the Librarian considers appropriate.”

NTIA urges the Copyright Office against interpreting the statute in a way that would require it to develop expertise in every area of policy that participants may cite on the record. Although Congress clearly included this factor to enable consideration of issues not otherwise enumerated, the deliberative process should not deviate too far afield from copyright policy concerns.6 As the Register of Copyrights noted in 2010, “the focus in this rulemaking is limited to actual or likely adverse effects on noninfringing uses of copyrighted works. No other agency has delegated authority to temporarily limit the application of the prohibition on circumvention. This prohibition was established to provide legal support for, and foster the availability of, copyrighted works in the digital environment.” Therefore, the Office should not, in its deliberations, heavily weigh unrelated matters such as greenhouse gas emissions or the quality of materials used to build aircraft, and should instead focus primarily on questions relevant to copyright law.8 Congress, applicable regulatory agencies, and their counterparts within state governments are well-equipped to deal with these non-copyright issues in the appropriate settings and under legal authorities focused on those issues.

Additionally, NTIA’s comments continue expressing concerns:

[T]hat security measures that have been deployed for non-copyright reasons—such as security and privacy, or possibly anti-competitive goals—are being described in this rulemaking as technological measures controlling access to copyrighted works under Section 1201.  This is a fundamental misuse of Section 1201, which can lead to reduced respect for the DMCA and copyright law, and can yield either an inappropriate overprotection of copyright (out of concern, for example, to avoid harming security), or a reduction in security (because of a grant of an exemption in this proceeding where indeed no significant copyright interest is at issue).

A related problem would arise if a manufacturer were to use the same technological protection measure to achieve two functions—enhance security and protect a legitimate copyright interest. Again, this could lead to inappropriate outcomes, and manufacturers would in many cases be well advised to separate techniques aimed at copyright protection from those aimed at security and privacy.

These concerns lead to two practical considerations. First, a record showing that a technological measure was not deployed with copyright protection in mind should weigh heavily in favor of a proposed exemption. Such a standard is entirely consistent with the statutory factors to be considered in this rulemaking.

Second, the increasing ubiquity of security measures has led to a widespread assumption that Section 1201 applies in a broader set of circumstances than may, in reality, be true. One of the clearest examples of this phenomenon appeared during the previous triennial rulemaking, when one group of proponents sought an exemption for circumventing access controls protecting public domain works.  The problem has further manifested itself during this proceeding, as highlighted by the confusion over whether circumvention is necessary to make certain repairs to video game consoles, as well as the possibility that the Lexmark decision may have placed some acts of circumvention involving 3D printers outside the scope of Section 1201.  In these circumstances, the Copyright Office has a role to play in clarifying the scope of Section 1201 through these proceedings. Where the prohibition against circumvention clearly does not apply, NTIA recommends the Copyright Office continue its previous practice of noting that a “requested exemption is beyond the scope of this rulemaking proceeding.”  Similarly, in cases where the prohibition may apply, but only in certain instances, NTIA suggests noting the prohibition’s limitations when recommending an exemption to the Librarian. NTIA further encourages the Copyright Office to make clear to manufacturers and content creators that they should remain cognizant of the underlying purposes for which an access control is implemented. Manufacturers should not implement access controls on devices to restrict certain device functions or enforce non-copyright-related business models—which is not the purpose behind Section 1201—and then try to use the DMCA to enforce a business model or limit a user’s post-purchase modification of a device.

While the 2015 exemptions include some improvements with respect to expanded exceptions, the rules have become more verbose and complex over the course of the six rulemaking cycles. The long, detailed exemptions will lead to greater confusion and make the exemptions less useful.  Laura Quilter has this excellent post on the complexity of the new exemptions.

Re:create Coalition Opposes Creation of Copyright Office as an Independent Agency

On September 30, 2015, the Re:Create Coalition released a letter supporting modernization of the Copyright Office while opposing the establishment of the Copyright Office as an independent agency (as suggested in a discussion draft bill by Representatives Chu (D-CA) and Marino (R-PA)).  It points out that while some have claimed that consensus exists to make the Copyright Office an independent agency, no such consensus exists.

The letter notes that while modernization is needed, creating an independent Copyright Office will not solve the information technology challenges the office faces.  Additionally, the letter states:

In this digital age, we agree there is a clear need to upgrade and modernize the Copyright Office and view the upcoming appointment of a new Librarian of Congress for the first time in three decades as an opportunity for just such potentially transformative change. We believe that reforms both to improve the process of registering copyrights and to improve the transparency and accessibility of this information to the public are crucial. Additionally, while Re:Create members have diverse views as to the appropriate home for the Copyright Office, we are united in our belief that the case has not been made for transforming the Copyright Office into an independent agency.

The letter also calls for the Copyright Office to be more responsive to the public, pointing out that:

A thoroughly modern Copyright Office will be one able to carefully weigh the interests of rights-holders, the rapidly evolving creative market, and the greater public of information users and consumers (often creators themselves), with an eye toward finding the appropriate balance to foster more, rather than less, speech. For example, in the context of the Digital Millennium Copyright Act (DMCA) rulemaking, a more thorough and balanced assessment of the public’s reliance on exemptions for cell phone unlocking or access to works for the blind and print-disabled could have altered the Office’s ultimately countermanded recommendations to eliminate those exemptions. In the case of cell phone unlocking, a fuller consideration of the needs of the public during the rulemaking process may even have prevented the need for Congress to step in to protect consumers’ ability to use the devices they own on the  network of their choice.

New Advocacy and Policy Update: August 14, 2015

A new ARL Advocacy and Policy Update, covering mid-June to mid-August is now available here.  Prior updates can be accessed here.

The summary and contents from the current Advocacy and Policy Update are reproduced below:

Summary

The US House of Representatives began the summer recess on July 30th, and the US Senate adjourned on August 6th with both reconvening on September 8th. September and October promise to be very busy months as both chambers must act on the FY 2017 appropriations bills, highway trust fund, debt ceiling, and many other issues. It is also hoped that there will be a deal to increase the spending limits under sequestration, which higher education institutions and others have long advocated for.

Much of the activity related to copyright has centered around the Copyright Office. Congressional offices continue to explore and discuss ways to modernize the Copyright Office, including various proposals to move the Copyright Office out of the Library of Congress. Additionally, the Copyright Office has issued notices of inquiries that relate to orphan works, mass digitization, visual works, and extended collective licensing.

There have been positive developments with respect to open access, open educational resources, and open data. The Obama Administration released science and technology priorities for FY 2017, which note that “preserving and improving access to scientific collections, research data, other results of federally funded research, open datasets and open education resources should be a priority for agencies.” The FASTR Bill to enhance public access to research was approved unanimously by the US Senate Committee on Homeland Security and Governmental Affairs.

Privacy and surveillance concerns continue as Congress is considering cybersecurity legislation that raises serious issues for privacy and civil liberties. Litigation around net neutrality is in full swing, with the briefs of telecommunications companies opposing the FCC’s net neutrality rules filed in July.

Finally, ARL continues to promote a simple and quick ratification of the Marrakesh Treaty. Currently, 10 countries have ratified the Treaty, and 10 more are needed for it to enter into force.

Contents

Copyright and Intellectual Property

  • Proposal to “Modernize” the Copyright Office
  • Copyright Office Notice of Inquiry on Visual Works
  • Copyright Office Notice of Inquiry on Mass Digitization and Extended Collective Licensing
  • House Judiciary Committee’s Copyright Review

Open Access, Open Educational Resources, and Open Data

  • Obama Administration Releases Science and Technological Priorities for FY 2017
  • Coalition Calls on White House to Open Up Access to Federally Funded Educational Resources
  • FASTR Bill to Enhance Public Access to Research Approved by US Senate Committee
  • National Technical Information Service (NTIS)

Update Appropriations

Draft Bill Would Eliminate NHPRC

Privacy and Surveillance

  • Cybersecurity Legislation
  • Electronic Communications Privacy Act Reform

Telecommunications

  • Net Neutrality Litigation

International Treaties

  • Trans-Pacific Partnership Agreement
  • Marrakesh Treaty