Tag Archives: copyright review

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  • Replacing the current published/unpublished distinction with a publicly disseminated/not publicly disseminated distinction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

Australian Productivity Commission Recommends Fair Use, Shorter Copyright Terms

On April 29, 2016, the Australian Productivity Commission issued a nearly 600 page draft report on Intellectual Property Arrangements recommending a number of positive changes to provide better balance to the intellectual property system, including recommendations on fair use, shorter copyright terms, and specifying that copyright licensing does not override limitations and exceptions for libraries and archives.

In the overview, while the Commission acknowledges the importance of incentivizing creation, the report also notes that

the use of an idea by one party does not reduce its capacity for use by another, and and that ideas provide economic and social value as other parties draw on existing knowledge to create their own.  Since new ideas are a major source of economic growth, any defects in IP arrangements intended to encourage their creation and diffusion can be very costly

[ . . .]

Indeed, overly strong restrictions on diffusion can be so detrimental to innovation that it can undo the benefits of the IP system in the first place . . .

The Commission begins a section entitled “Copy(not)right” by pointing out that “Australia’s copyright arrangements are weighed too heavily in favour of copyright owners, to the detriment of the long-term interests of both consumers and intermediate users.”  Much of the framework emphasizes balance and also recognizes the need for adaptability.

The Commission’s report also points out the importance of erring on the side of weaker IP protections because:

Recent experience would also tend to suggest that it is easier to extend IP rights than narrow them, especially where international agreements are concerned.  Given the asymmetric nature of how policy can be changed, the Commission considers it is appropriate “to err on the side of caution” where there is imperfect information, and deliberately set weaker parameters in the way that rights are assigned, used or enforced.  Extending rights should only occur after careful consideration of how such a change might affect future innovations, whether IP rights are the best way to drive the desired outcome, and how it might affect the greater number of consumers relative to producers of IP.

Ultimately, “the current Copyright Act is weighted too heavily in favor of copyright owners, to the detriment of the long-term interests of users.”

Fair Use

The Commission examines fair use and fair dealing exceptions and explains that Australia’s fair dealing exception provides a closed list of uses.  The US fair use approach, by contrast, relies on factors to determine whether the exception applies.  Thus, “In Australia, legislative change is required to expand the categories of use deemed to be fair.  In contrast, US courts have latitude to determine if, on the facts, a new use of copyright material is fair.  This allows the exception to be flexible and adaptive over time.”

The draft report includes a illustrative list of uses considered to be fair use in the US which would require a license in Australia, as it is not permitted by the current fair dealing provision.  These uses include: an internet search engine’s publication of thumbnail images in search results; an author’s quotation of unpublished letters in a biography; an artist’s collage using images from a photography book; a searchable database of TV clips; the use of scenes from a film for a biographical film about the lead actor; text and data mining, among others.

The Commission rejects the argument that fair use is too uncertain and therefore should not be adopted:

In the Commission’s view, legal uncertainty is not a compelling reason to eschew a fair use exception in Australia, nor is legal certainty desirable in and of itself.  Courts interpret the application of legislative principles to new cases all the time, updating case law when the circumstances warrant it.  To say otherwise would be to argue that all laws should be prescriptive — a doctrine that is inconsistent with many laws across all social and economic arenas, and completely inimical to the common law.  In addition, even under a fair use regime it is possible to specify a non-exhaustive list of illustrative purposes which provides strong guidance to parties.

Additionally, the Commission points out that there are similarities between the US’ fair use factors and the factors within Australia’s current fair dealing exception for research or study and that fair use may not be as uncertain as suggested.  The report points out that, while not binding, Australia could also look to US court opinions for guidance on fair use.

In 2014, the Australia Law Reform Commission recommended inclusion of a fair use provision with illustrative examples including those found in the US fair use statutes as well as parody or satire; professional advice; quotation; non-commercial private use; incidental or technical use; library or archive use; and access for people with disabilities.  The Productivity Commission states that “the ALRC’s recommendation on fair use represents the minimum level of change the Australian Government should pursue” and recommends expansion of a fair use provision to apply to orphan works and out-of-commerce works (meaning that these would be included in the non-exhaustive illustrative list of purposes).

Explaining the problem of orphan works, the Commission states that it “is not aware of any country that has fully resolved the issue of orphan and unavailable works” then examines the three approaches others are considering including: requiring a statutory license, creating an exception for the use of orphan works (such as the EU directive) and limitations on damages and remedies (proposed by the US Copyright Office).  The draft report concludes:

in the case of orphan and out-of-commerce works, creators are not actively exploiting their creation in order to generate an economic return.  Proposals to create licensing schemes, whereby consumers can pay to access such works, is one approach to unlocking their value, but likely represents a windfall gain to producers.  The Commission considers it unlikely that a creator, prior to investing the time and effort in a new work, does so on the basis that their work will have an initial commercial life, a period ‘out of the market’, and a subsequent revival perhaps decades down the track.  While this does occur for many works, it is largely by happenstance rather than design.

The Commission recommends that, “At its heart, Australia’s exception for fair use should allow all uses of copyright material that do not materially reduce a rights holder’s commercial exploitation of their work at the time of use.”

Copyright Term

The Commission’s report points out that a copyright term of life of the author plus 70 years is excessive.  While it acknowledges that Australia is bound to its long copyright terms as a result of trade agreements, it recommends international negotiations to lower the term.  The Commission notes:

An effective and efficient copyright system sets term at a level that encourages creation without unduly constraining access to creative works.  Since it is not possible to define terms specific to each given work, an “optimal” term is a period that, on average, creates reasonable incentives for creation while avoiding the consumer losses associated with exclusivity.  The situation is conceptually similar to that apply to patents.  Australia’s copyright term provides protection for the author’s life plus 70 years . . . Providing financial incentives so far into the future has little influence on today’s decision to produce.  For example, the addition of twenty years of protection many years in the future, such as occurred when Australia increased term from life plus 50 years to life plus 70 years . . . only increases revenue by 0.33per cent.  Such a small increase in revenue “offers at most a very small additional incentive for an economically minded author of a new work.” (citations omitted)

The Commission also reports that “evidence suggests the vast majority of works do not make commercial returns beyond their first couple of years on the market” and that the average commercial life of music is 2-5 years, for literary works 1.4-5 years, for visual artistic works 2 years, and for film 3.3-6 years.

In addition to the financial costs of copyright term extension in which consumers pay higher prices for a longer period of time, the report also acknowledges other costs such as orphan works.

Ultimately, the Commission finds that “While hard to pinpoint an optimal copyright term, a more reasonable estimate would be closer to 15 to 25 years after creation; considerably less than 70 years after death.”  The Commission acknowledges, however, that “Australia has no unilateral capacity to alter copyright terms, but can negotiate internationally to lower the copyright term” and “the Commission considers that there are strong grounds ofr Australia to work with other countries to attempt, over the long term, to achieve a system that gives greater recognition to consumer interests.”

Relationship Between Contracts and Limitations and Exceptions

The Commission examines the Australian Law Reform Commission’s 2014 recommendation that would prevent copyright licenses from relying on limitations and exceptions and concludes:

exceptions play an important role in balancing the interests of copyright producers and users.  Given the evidence presented by the Australian Libraries Copyright Committee, the Council of Australian University Libraries and National and State Libraries Australasia, the problems appear to mainly relate to libraries and archives, rather than other users.  Given this, the Commission considers that copyright license in the digital world should maintain the copyright exceptions for libraries and archives.

Because “It is less clear license conditions for digital content are undermining consumers’ ability to use Australia’s current copyright exceptions,” the Commission requests more information on this issue beyond the impact on libraries and archives.

Parallel Importation

The Commission also recommends repeal of Australia’s parallel importation restrictions on books and that the reform take effect no later than the end of 2017.

Trade Agreements

The draft report points out some of the harms of increasing intellectual property rights in trade agreements.  For example, with respect to copyright term extension implemented as a result of the Australia-US Free Trade Agreement, the estimated cost to Australia was $88 million per year.  The report points out that “A similar obligation to New Zealand as a result of the Trans-Pacific Partnership was estimated to cost $55 million per year.”

Another key point from the report was that “Multilateral and bilateral trade agreements are the primary determinant of Australia’s IP arrangements.  These agreements substantially constrain domestic IP policy flexibility.”

New Advocacy and Policy Update Available

The latest ARL Advocacy and Policy Update (covering mid-August to the beginning of October) is now available.  Previous Advocacy and Policy Updates can be found here.

From the current update’s summary:

With its return from an August recess, the US Congress faces several controversial must-pass bills and other divisive issues with little time to spare prior to the passage of a short-term funding measure for the US Government as the Government’s fiscal year ended on September 30. A short-term funding bill that will fund the Government through mid-December was approved in lieu of another Government shutdown.

The US Senate continues to press ahead for passage of the Fair Access to Science and Technology Research Act (FASTR), a bill to codify the Office of Science and Technology Policy’s 2013 memorandum regarding public access to federally funded research.

The White House is building a pool of prospective candidates for the Librarian of Congress position. With James Billington’s retirement at the end of September, the White House has been reaching out to stakeholders, including ARL, for their input and recommendations. Legislation has been introduced in the Senate to limit the term of the Librarian of Congress to 10 years.

Copyright has been an active area over the past six weeks. Members of the House Judiciary Committee are poised to introduce several bills regarding the future of the US Copyright Office— determining the office’s authority and whether it will remain in the Library of Congress. This may be the first issue that the House considers as it continues its review of the Copyright Act for possible reform. A court ruled that Warner/Chappell Music does not hold a valid copyright to the “Happy Birthday” song lyrics, and there were two positive fair use decisions in Lenz v. Universal and Katz v. Google. The Library Copyright Alliance filed comments on the Copyright Office Notice of Inquiry on Extended Collective Licensing, and the 1201 Digital Millennium Copyright Act rulemaking is still underway.

ARL participated in a number of amicus briefs on a variety of issues. ARL, the American Library Association, Association of College and Research Libraries, and Chief Officers of State Library Agencies filed an amicus brief in support of the Federal Communications Commission’s Open Internet Order protecting network neutrality. ARL also joined in an amicus brief in the case Wikimedia v. National Security Agency (NSA), challenging warrantless surveillance and invoking the First Amendment’s protection of privacy.

Congress continues to consider reform of the Electronic Communications Privacy Act, or ECPA and there is widespread support in the House for such reform.

The US Supreme Court has agreed to rehear Fisher v. University of Texas at Austin, a case involving the University of Texas (UT) admissions process, which seeks to improve student body diversity.

On the international front, several additional countries have ratified the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled, with Canada moving closer to ratification of the treaty. Another meeting took place in late September–early October to finalize the Trans-Pacific Partnership Agreement, a large, regional, trade agreement among 12 countries including Canada and the US. Finally, the “right to be forgotten” online has been upheld in Europe, and French regulators declared that search engines must apply the right to be forgotten across all domains, not just in France or Europe.

ICYMI: CCIA Releases White Paper, Copyright Reform for a Digital Economy

On August 25, 2015, the Computer and Communications Industry Association (CCIA) released its White Paper, Copyright Reform for a Digital Economy.  The report notes that the House Judiciary Committee began comprehensive copyright review in 2013 and points out that new technology has changed the way creative industries and communication operate.  For example, the growth of the Internet has lowered the cost of distribution and “radically changed the economics of scholarly communications and other educational resources.  This, in turn, has allowed open access business models to flourish in these markets.”  The report points out the importance of balance and “any copyright reform should acknowledge the significance of doctrines ensuring copyright flexibility, particularly limitations and exceptions like the fair use doctrine and first sale.”

Among the highlights, the report points out:

The principle of copyright remains an important tool in the Government’s toolbox to promote scientific, cultural and economic progress, but in current practice, the complex, opaque, and highly concentrated U.S. system is increasingly incapable of facilitating certain socially and economically desirable uses.  Easily navigated only by the most experienced corporate actors, the credibility of the copyright system is being tested as it leaves ‘”consumers and other private citizens…increasingly frustrated.”

With respect to fair use, the report cites studies done on the fair use economy pointing out the significant role industries relying on limitations and exceptions have played in growing the US economy.  The report continues,

[P]rotection exceeding the amount necessary to incentivize innovation represents a deadweight loss to the economy.  Limitations and exceptions help minimize the deadweight loss, and several, such as the fair use doctrine, provide breathing room for new innovations.

The report goes on to point out that fair use is not limited to the technology sector and has been successfully relied upon by “theatre producers, artists, movie studios . . . patent lawyers, rock bands and an NFL football team.”  In other words, as pointed out in the Fair Use Fundamentals infographic created for last year’s Fair Use Week,* fair use is relied upon by everyone.  While the report notes the importance of fair use, it does not recommend reform of the doctrine but instead cautions Congress to consider the

other reforms [that] may affect the fair use doctrine, and potential effects on fair use should be considered in any reform.  For example, increasing statutory damages may deter socially desirable fair uses, and allowing DMCA abuses to continue unchecked may prevent fair use criticism, commentary and political speech.  Because fair use is so integral to the fabric of the Copyright Act, it must be a central consideration in any legislative effort.

In addition to fair use, the report also emphasizes another important limitation in copyright law: the first sale doctrine.

With respect to other areas under consideration for copyright reform, the report points out that safe harbors in the online environment have ensured predictability, but suggests that safe harbors could be strengthened.  It also points out that the DMCA takedown process can be misused.

The report also points out the chilling effect of statutory damages which has led to copyright trolling.  It notes, “regardless of the propriety of the remedy, however, to whatever extent statutory damages deter misbehavior, they also deter investment by creating substantial uncertainty and risk.”  The report cites several suggestions by scholars to reduce statutory damages and also pointing to a proposal

to generally remit statutory damages in cases where defendants can demonstrate a reasonable good faith belief that their activity was a fair use (or perhaps covered by any defense).  Section 504(c)(2) already has exactly this provision, but limits it to nonprofit educational institutions, libraries, archives and public broadcasters.  Because deterrence is inappropriate where a defendant had a reasonable good faith belief that their conduct was non-infringing, this provision could be extended to all good faith actors.  In the rare case where this might leave plaintiffs under-compensated, they could still obtain actual damages and injunctions.

The report also points out that international agreements can constrain reforms.  For example,

extraordinarily long copyright terms are also a result of international agreements, which have extended the copyright term to last for the life of the author, plus an additional 50 years (in the case of the Berne Convention and TRIPS) or the life of the author plus an additional 70 years (in the case of the free trade agreements).  This exacerbated the orphan works problem while diminishing the ability of artists to make productive uses of older works, e.g., new performances of older plays.  The Supreme Court has validated the most recent extension in Eldred v. Ashcroft, notwithstanding economic studies showing that extending the term of protection from 56 years to life plus 50 or 70 years does not measurably incentivize additional creative activity.

It is no exaggeration to say that international copyright treaty obligations have contributed to a legitimacy crisis in the contemporary copyright system.  Survey data suggests there is a declining public respect for copyright.  Terms extending well over a century have been the source of high-profile disputes casting copyright in a poor light, and when combined with the absence of formalities, exceptionally long terms have proven to be a significant problem for researchers, historians and preservationists, among others.

Another problem the report highlights i the relationship between contract and copyright, where license terms may override limitations and exceptions.  The report points to proposals against “contracting out” in the United Kingdom, Ireland, and Australia and concludes that “effective copyright law reform must recognize that Congress’s intentions can be subverted through contract, and that licensing agreements between competitors can give rise to substantial market power.”  Likewise, the report notes that “substantial aspects of copyright reform could be rendered largely irrelevant if rightsholders can control all uses via TPMs.”

The entire report is well worth a read.

*Fair Use Week 2016 will take place from February 22-26, 2016.  For more information please visit www.fairuseweek.org*

 

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

What’s Missing from the Register’s Proposals

*Guest post by Jonathan Band, policybandwidth*

In her wrap-up testimony yesterday in the House Judiciary Committee’s two-year Copyright Review, Maria Pallante, the Register of Copyrights, identified three categories of policy issues: those that are ready for legislative process, those that warrant near-term study and analysis, and those that warrant further attention. Unfortunately, what many perceive to be the Copyright Act’s greatest flaw, the existing structure of statutory damages, received just a passing reference in the third “warrant attention” category. As numerous witnesses testified during the course of the Copyright Review, the threat of statutory damages of $150,000 per work infringed chills investment in innovative technologies and allows copyright trolls to extort settlements that greatly exceed the actual harm caused.

The Register paid more attention to the Digital Millennium Copyright Act’s prohibition on the circumvention of technological protection measures, 17 U.S.C. § 1201, which appears on the first two lists. While the Register’s recognition of Section 1201’s flaws is welcome, the Copyright Office has the power to address some of these deficiencies itself without additional Congressional action.

Register Pallante correctly observes that a wide range of stakeholders support “mak[ing] it easier to renew exemptions that have previously been adopted and are in force at the time of the triennial rulemaking proceeding.” She states that “the Copyright Office agrees that the process of renewing existing exemptions should be adjusted to create a regulatory presumption in favor of renewal.” Accordingly, she feels that “it would be beneficial for Congress to amend Section 1201 to provide that existing exemptions will be presumptively renewed during the ensuing triennial cases where there is no opposition.”

However, the Copyright Office need not wait for Congressional action to make the renewal process easier. The Register asserts that “the Section 1201 statutory framework requires that, to continue an existing exemption, proponents must bear the legal and evidentiary burden of justifying the exemption anew .…” In fact, Section 1201 itself imposes no such burden. It simply states that the Librarian must make a determination in a rulemaking proceeding whether to grant an exemption to users of a certain class of works and that the exemption lasts for three years. The statute says nothing about how the Librarian should handle renewals of existing exemptions.

The notion that a proponent must justify an exemption de novo every three years derives from a single sentence in a single committee report issued during the legislative process that resulted in the DMCA. This sentence states that the Librarian’s “assessment of adverse impacts on particular categories of works is to be determined de novo.” The Copyright Office in its administration of the rulemaking is not bound by this report language. Thus, it could decide to create a rebuttable presumption in favor of renewal.

Moreover, even if the Office chooses to give weight to this language, the language only states that the Librarian must take a fresh look at whether users of a class of works are likely to be adversely affected by Section 1201’s prohibition. It does not say that proponents must create a new legal and evidentiary record in support of renewal of the exemption. Instead, the Copyright Office and the Librarian could just review the record created in the previous rulemaking, as supplemented by interested parties in the current rulemaking. If opponents of renewal do not offer substantial evidence that renewal would harm the market for or value of their works, see § 1201(a)(C)(iv), the Librarian is likely to reach the same conclusion he reached three years earlier. In short, the Copyright Office could significantly lighten the burden of renewal by indicating that it will incorporate the record created in the previous rulemaking.

Additionally, in the category of policy issues that warrant near-term study and analysis, the Register identifies numerous other potential problems with Section 1201. She notes that some of the permanent exceptions may be too narrow in scope, and that the exemptions created under the rulemaking apply only to the act of circumvention, and not the development and distribution of circumvention tools.

Further, she observes that some stakeholders have suggested “a disconnect between the original purpose of Section 1201—protecting access to creative works—and its effect on a wide range of consumer goods that today contain copyrighted software.” (This was the subject of a DisCo post earlier this year.) She adds that “consumers have voiced discomfort that Section 1201 prevents them from engaging in activities, such as the repair of their automobiles and farm equipment, which previously had no implication under copyright law.”

It is true that the Copyright Office cannot change the scope of the existing permanent exceptions, nor extend the exemptions to the trafficking in circumvention tools. It is also true that the Copyright Office cannot unilaterally solve the problem of the application of Section 1201 to embedded software essential to the operation of larger devices and machines.

At the same time, the Copyright Office could take a more pragmatic approach toward exemptions for embedded software. For example, it could consider, and ultimately grant, a broad exemption for all software essential to the operation of hardware in the lawful possession of the user. Regrettably, in this rulemaking cycle the Copyright Office has gone in the opposite direction, drawing up classes as narrowly as possible. For the unlocking of devices from wireless networks, the Copyright Office has identified five separate classes for five different kinds of devices. It has done the same for the “jailbreaking” of devices so that they can access alternate lawful content. For circumvention of TPMs on vehicle software, for the purpose of diagnosis and repair, or after-market customization, the Copyright Office is considering only land vehicles, when the same issue obviously will apply to boats and aircraft.

By balkanizing the embedded software problem in this manner, the Copyright Office places a much greater burden on the applicants of each narrow class to meet the evidentiary standard the Office imposes. Section 1201 certainly does not require the identification of such narrow classes.

Obviously these measures will not address all the ills of Section 1201. Legislation along the lines of the Unlocking Technology Act, H.R. 1587, or the Breaking Down Barriers to Innovation Act, S. 990 and H.R. 1883, are necessary to do that. But the Copyright Office could adopt these measures now, without Congressional action.

The Register’s testimony raises too many other issues to be examined here. But one proposal merits attention. In the category of issues that warrant near-term study and analysis, the Register recommends a “formal and comprehensive study” of the safe harbors in Section 512 “to ensure that it is properly calibrated for the internet as we know it today.” Frankly, the Section 512 safe harbors have been studied to death. They have been the subject of numerous Congressional hearings and were a major focus of the Commerce Department Internet Policy Task Force report on Copyright Policy, Creativity, and Innovation in the Digital Economy. As the Register’s testimony acknowledges, the Internet Policy Task Force’s report led to a year-long process to produce best practices for the notice and takedown system. The safe harbors have been examined in law review articles, economic studies, and Congressional Research Service reports. The Register asserts that “it is time to take stock of Section 512.” In fact, Congress, the Copyright Office, the PTO, the copyright owners, the Internet service providers, and public interest groups have been taking stock of Section 512 continuously since its enactment.

A far better use of government resources would be a formal and comprehensive study of statutory damages, “to consider what is working and what is not, along with possible legislative improvements…to…ensure that it properly calibrated for the internet as we know it today.”

LCA Statement for House Judiciary Subcommittee Hearing on Education and Visually Impaired

Today, November 19, 2014, the House Judiciary Subcommittee on Courts, Intellectual Property and the Internet will continue its copyright review with a hearing on “Copyright Issues in Education and for the Visually Impaired.” Witnesses for the hearing include Jack Bernard, Associate General Counsel, University of Michigan; Allan Adler, General Counsel, Association of American Publishers; Scott LaBarre, State President, Colorado, National Federation for the Blind; and Roy Kaufman, Managing Director, New Ventures, Copyright Clearance Center.

In advance of the hearing, LCA submitted a statement for the record. The statement discusses the exceptions to the Copyright Act enabling libraries to support educational institutions and concludes that revision of these provisions is unnecessary. It also discusses the Chafee Amendment and fair use doctrine, provisions allowing libraries to provide accessible format copies to the print disabled.

LCA Submits Testimony to House Judiciary Subcommittee for Copyright Review Hearing on Technological Protection Measures

On September 17, 2014, the House Judiciary Subcommittee on Courts, Intellectual Property and the Internet continued its copyright review with a hearing on Chapter 12 of the Copyright Act, which governs technological protection measures (TPM). The hearing included four witnesses: Mr. Mark Richert, Director of Public Policy, American Foundation for the Blind; Mr. Jonathan Zuck, President, ACT | The App Association; Mr. Christian Genetski, Senior Vice-President and General Counsel, Entertainment Software Association; and Ms. Corynne McSherry; Intellectual Property Director, Electronic Frontier Foundation.

The Library Copyright Alliance (LCA) submitted a statement to the Subcommittee in advance of the hearing.

The LCA testimony points out that overly-broad anti-circumvention language was initially proposed in 1994 and 1995 over objections that these prohibitions could prevent circumvention for lawful purposes. After the 1996 adoption of the WIPO Copyright Treaty (WCT) and WIPO Performances and Phonograms Treaty (WPPT), PTO Commissioner Lehman proposed new anti-circumvention language to implement the treaties. Again, the proposals were overly broad, regulating both tools and conduct, regulating circumvention apart from underlying infringement and governing circumvention for both access-control technologies and copy-control technologies rather than only prohibiting copying. Significantly, the WIPO treaties did not require these overly-broad features, as Commissioner Lehman himself conceded when testifying before the House Judiciary Subcommittee.

Despite the fact that alternative proposals were made to address these overly-broad proposals, “Congress instead created a set of complex exceptions and limitations to the administration’s sweeping language, resulting in the convoluted, inconsistent section 1201 we have today. Some of these limitations are of limited effectiveness.” Additionally, Congress, in recognition that additional exceptions other than those explicitly included in Section 1201 may be desirable, directed the Librarian of Congress to conduct a rulemaking process every three years to determine additional classes of works that should be granted an exemption for the subsequent three-year period. However, as the LCA testimony points out, “A narrower section 1201 limited to circumvention that led to infringement would have obviated the need for the rulemaking procedure altogether.”

Over the years, there have been several efforts to amend section 1201 to address the potential problems resulting from an interpretation of this section as prohibiting circumvention of access controls or the manufacture and distribution of circumvention tools, even if they are for non-infringing purposes. These bills have varied from creating additional specific exceptions to requiring a nexus between circumvention and infringement. Most recently, controversy over the Librarian of Congress’ 2012 decision not to renew an exemption for cell phone unlocking that had been granted in previous rulemakings, resulted in renewed efforts to address flaws in Section 1201. Although Representatives Lofgren (D-CA), Massie (R-KY), Eshoo (D-CA) and Polis (D-CO) introduced a broad bill, the Unlocking Technology Act of 2013, that would have permitted circumvention for non-infringing uses, ultimately Congress took a narrower approach and adopted a temporary fix specific to the problem of cell phone unlocking.

The LCA testimony also includes a summary of litigation over Section 1201, explaining that currently a circuit split exists as to whether the language of 1201 requires a nexus between infringement and circumvention for liability to attach.

Additionally, the LCA testimony covers the three-year rulemaking process, which LCA members have participated in during each cycle. The testimony points out some of the absurdities of the process as well as the high costs and burdens of participating in the rulemaking cycle. The testimony points out that “From start to finish, the process can take more than a year” and that the inefficient system places burdens on not only the proponents of exemptions, but the Copyright Office, as well.

The testimony concludes with several proposed amendments to Section 1201 including:

  • Attaching liability to circumvention only if it enables infringement
  • Placing the burden of proof on those opposing renewal of exemptions to demonstrate why it should not be renewed or should be modified
  • Making exemptions permanent if a second renewal is granted
  • Shifting final rulemaking authority from the Librarian of Congress to the Assistant Secretary for Communication and Information of the Department of Commerce

LCA Statement on Copyright Remedies for House Judiciary Subcommittee Hearing

On July 24, 2014, the House Judiciary Subcommittee on Courts, Intellectual Property and the Internet continued its copyright review with a hearing on copyright remedies. Witnesses at this hearing include Mr. David Bitkower, Acting Deputy Assistant Attorney General in the Criminal Division, U.S. Department of Justice; Mr. Steven M. Tepp, President and Chief Executive Officer, Sentinel Worldwide; Mr. Matt Schruers, Vice President for Law and Policy, Computer & Communications Industry Association; Mr. Sherwin Siy, Vice President of Legal Affairs, Public Knowledge; and Ms. Nancy E. Wolff, Partner, Cowan DeBaets, Abrahams & Sheppard LLP.

The Library Copyright Alliance filed a statement for the hearing, focusing on the problems with statutory damages. The statement notes that the existing safe harbor requiring a court to remit statutory damages when a library, archive, educational institution or public broadcasting entity believed and had reasonable grounds to believe that its use constituted fair use applies only to the reproduction right. The statement recommends an update to reflect the digital era so that this safe harbor applies to any type of use, including those implicating performance, display, distribution or derivative work rights.