Tag Archives: copyrightreview

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.

LCA Statement Opposing Copyright Term Extension at House Judiciary Subcommittee Hearing

On July 15, 2014, the House Committee on the Judiciary Subcommittee on Courts, Intellectual Property and the Internet continued its copyright review with a Hearing on Moral Rights, Termination Rights, Resale Royalty and Copyright Term. The Library Copyright Alliance (LCA) filed a statement addressing the topic of copyright term, noting the negative effects that lengthy copyright terms have on the public domain.

The statement notes that the Constitutional rationale for intellectual property protection is “to promote the Progress of Science and useful Arts, by security for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” The Supreme Court has interpreted this rationale as having an “ultimate aim … to stimulate creativity for the general public good.”

The statement then goes through the history of copyright term in the United States, which was initially a limited period of fourteen years, with the possibility of renewal for an additional fourteen years, a period far shorter than the current term of the life of the author plus an additional seventy years. It also points out that while patents and copyrights originally had similar periods of protection, the patent term has increased by only 43 percent while the copyright term has increased by almost 580 percent.

Copyright term extensions hinder the goal of “stimulat[ing] creativity for the general public good” by shrinking the public domain. The public domain is essential to allowing access to books and texts, and also promoting future creativity by providing raw materials upon which artists and authors can build. Longer copyright terms escalate the costs of access to knowledge by requiring licenses for a greater period of time and increasing the resources that must be devoted to finding the rightsholder.

The statement also points out that a copyright term that extends beyond the life of the author exacerbates the orphan works problem. Maria Pallante, Register of Copyrights, has noted that the Copyright Office recognized in a study “it seems questionable whether copyright term should be extended to benefit remote heirs or assignees, ‘long after the purpose of the protection has been achieved.’”

Additionally, the statement calls for evidence based copyright policy. It points to the independent Hargreaves report commissioned by the United Kingdom as well as an article published in the Review of Economic Research on Copyright Issues, both of which point out that the economic evidence does not support copyright term extensions, including the current lengthy term that exists in the United States.

Finally, the statement recommends that Congress explore ways to shorten the present term or mitigate its harms, for example, by considering Ms. Pallante’s proposal to reintroduce formalities for the final twenty years of copyright protection.

Greg Cram of The New York Public Library Represents Library Perspective on the First Sale Doctrine at House Judiciary Subcommittee Hearing

On Monday, June 2, 2014, the U.S. House Committee on the Judiciary, Subcommittee on Courts, Intellectual Property and the Internet continued with its copyright review with a [field hearing held in New York, NY](Greg Cram of The New York Public Library to Represent Library Perspective on the First Sale Doctrine at House Judiciary Subcommittee Hearing). This hearing focused on the first sale doctrine, a principle that provides that after the first sale of a lawfully made copy of a copyrighted work, the copyright holder’s distribution rights in that particular copy terminate.

The panel included nine witnesses: Stephen M. Smith, President and CEO of John Wiley & Sons, Inc.; John Ossenmacher, CEO of ReDigi; Ed Shems of edfredned illustration & graphic design; Jonathan Band representing the Owner’s Rights Initiative, Matthew B. Glotzer, Greg Cram, Associate Director of Copyright and Information Policy at The New York Public Library; Sherwin Siy, Vice President of Legal Affairs at Public Knowledge; John Villasenor, Professor of Electrical Engineering and Public Policy at UCLA Luskin School of Public Affairs; and Emery Smith, Counselor for BSA – The Software Alliance.

The Library Copyright Alliance endorsed Cram’s statement, which highlights the importance of the first sale doctrine to the mission of libraries. Cram also states support for the Supreme Court’s ruling last year in Kirtsaeng v. John Wiley & Sons, applying the first sale doctrine to a lawful physically copy of a work regardless of the place of manufacture or sale. He also discusses the issue of first sale in the context of the digital marketplace.

Importance of First Sale to Libraries

In his statement, Cram notes that throughout American history, even prior to the founding of the nation, libraries have promoted democratic values by lending books and other materials. In discussing the history of libraries providing access to information, Cram quotes Thomas Jefferson: “I have often thought that nothing would do more extensive good at small expense than the establishment of a small circulating library in every county, to consist of a few well-chosen books, to be lent to the people of the county under regulations as would secure their safe return in due time.”

Cram’s statement points out that Americans borrow books and other materials from libraries 4.4 billion times a year and that per capita circulation grew by 26.1% between 2000 and 2009. Between 2008 and 2012, NYPL saw a 44% increase in circulation with 28 million items circulated in 2012. The vast majority of library collections represent physical copies of works, highlighting the importance of the first sale doctrine, without which library lending would not be possible.

Kirtsaeng v. John Wiley & Sons

In his written testimony, Cram expresses support for the Supreme Court’s ruling in 2013 in Kirtsaeng v. John Wiley & Sons, an opinion which found in favor of international exhaustion, a rule applying the first sale doctrine to lawful copies of copyrighted works regardless of the place of manufacture or sale. Without a rule of international exhaustion, library lending would be seriously threatened as more than 200 million books in U.S. libraries have foreign publishers. Books published by U.S. publishers are often manufactured by printers in other countries, often without any indications on the copyright page of where they were printed. As a result, libraries have no way of knowing whether the books were manufactured domestically or abroad. With large portions of collections manufactured abroad, the Kirtsaeng decision is crucial in allowing libraries to continue their acquisition and circulation policies. Cram concludes, “This is the right rule for libraries and for American consumers, and Congress should not disturb it.”

Digital First Sale

Cram’s statement also explains the complexities of the use of digital resources as libraries increasingly license electronic resources. Licenses set the terms under which a library can make the content available and such terms can vary:

Often, the content is hosted on the server of the publisher or other intermediary, and the library is buying access to the server for its users. An authorized user might be able to download the content onto her computer or device, and digital rights management software will allow the content to reside there until it is automatically deleted in accordance with the license term … Currently, for most popular trade titles a library contracts with vendors to enable users to check out a licensed title based on the print “one copy, one user” model. Libraries must license additional e-book files in order to lend to more than one user at the same time. After a prescribed period, the book is automatically returned and becomes immediately available for digital check out by another user. Other licenses might not allow digital download, but instead permit a user to print out a limited number of pages, e.g., a journal article. Other licenses permit users to access content only when the user is connected to the Internet, e.g., streaming access.

While acknowledging that the digital marketplace has provided certain advantages over the traditional model (libraries no longer need to repair torn pages or place the books on a physical shelf), Cram also points out several drawbacks. Under the print model, a book can remain in a library’s collection until it wears out, but in the digital environment, a library can only provide access when it has paid the licensing fees and the terms of renewal licenses may vary. Cram explains that under some licensing models, arbitrary circulation limits are enforced and that license rates for e-books “can be more expensive than its print counterpart, and sometimes more than ten times the consumer e-book price.” Furthermore, some publishers do not license e-books to libraries at all. The current model also raises serious concerns regarding preservation of materials.

With respect to the digital marketplace, the Cram concludes:

Congress needs to consider whether to prohibit the enforcement of contractual limitations on copyright exceptions in certain circumstances. Significantly, the suite of statutory instruments for amending the UK copyright law that will come into force on June 1, 2014, prohibit the “contracting out” of many exceptions in the research and education context. Congress therefore needs to closely monitor the evolving digital marketplace to ensure that it is sufficiently competitive to provide widespread public access to works.

Supplemental Testimony of James G. Neal on Preservation and Reuse Endorsed by Library Copyright Alliance (LCA)

One week after testifying before the House Committee on the Judiciary Subcommittee on Courts, Intellectual Property and the Internet during the Hearing on Preservation and Reuse of Copyrighted Works, James G. Neal of Columbia University in New York City submitted supplemental testimony to address questions raised during the hearing and expand on his earlier written statement. The supplemental testimony addresses five issues: collective licensing, contractual restrictions on copyright exceptions, preservation of born-digital materials, the cost of preservation, and community fair use best practices. The Library Copyright Alliance has endorsed the supplemental statement.

Collective Licensing

The supplemental testimony noted that collective rights’ organizations (CROs) often represent problematic models that fail to pay artists and authors the revenues they earned and cautions against relying on such models as solutions, particularly with respect to preservation, mass digitization and orphan works. CROs have had a history of corruption, mismanagement, lack of transparency, among other issues. The statement pointed to two specific examples of problematic behavior of CROs. The first example is that the Copyright Clearance Center (CCC) has used fees it collected from research and academic libraries to sue Georgia State University over the use of books written by academics in an e-reserves case. The second example is the Educational Rights Collective Canada that, in fifteen years of operation, has failed to distribute any royalties to authors but is $830,000 in debt.

Contractual Restrictions on Copyright Exceptions

The supplemental testimony expanded on Neal’s oral testimony with respect to ensuring that contractual provisions do not circumvent the exceptions in the Copyright Act. The testimony noted that in licensing electronic resources, publishers often include terms that restrict the fair use right, library exceptions and first sale doctrine. It also pointed out that restricting such contractual provisions exists in numerous areas, both domestically and in foreign jurisdictions. Neal concluded “As part of its review of the Copyright Act, the Subcommittee should assess the adverse impact of the potential replacement of the public law of copyright with the private law of contract, both on libraries and the public at large. I believe that Congress should adopt restrictions on the enforcement of contractual terms that attempt to limit exceptions in the Copyright Act such as first sale, fair use or interlibrary loan under Section 108.”

Preservation of Born-Digital Materials

Neal’s supplemental testimony expanded on his oral testimony regarding the need to preserve born-digital materials. The supplemental statement pointed to studies that reveal that digital materials are also subject to risk of loss, corruption and destruction. It noted also the issue of website archiving and importance of digital preservation in order to address the problem of “link rot” and preserve the cultural heritage expressed through websites. Neal asserted that it is “essential” to rely on fair use to preserve linked references.

Cost of Preservation

Responding to a question from a member of the Judiciary Committee concerning the cost of preservation and access, Neal expanded on creative solutions to address preservation efforts, noting that HathiTrust and the Digital Preservation Network represent cooperative, shared infrastructure models that avoid unnecessary duplication and can reduce overall costs of preservation. The supplemental statement also noted that while it would have taken the University of Michigan 1,000 years to digitize its collection of books, Google’s assistance has allowed it to already largely complete the digitization effort.

Community Fair Use Best Practices

The final section of Neal’s supplemental testimony endorsed the development of fair use best practices and includes a copy of ARL’s Code of Best Practices in Fair Use for Academic and Research Libraries.

House Judiciary Subcommittee Hearing on Preservation and Reuse of Copyrighted Works; Testimony of James Neal, Endorsed by LCA

On Wednesday, April 2, 2014, the House Committee on the Judiciary, Subcommittee on Courts, Intellectual Property and the Internet continued its copyright review. This hearing focused on “Preservation and Reuse of Copyrighted Works” with six panelists: Mr. Gregory Lukow (Chief, Packard Campus for Audio Visual Conservation, Library of Congress); Mr. Richard Rudick (Co-Chair, Section 108 Study Group); Mr. James Neal (Vice President for Information Services and University Librarian, Columbia University); Ms. Jan Constantine (General Counsel, The Authors Guild); Mr. Michael C. Donaldson (Partner, Donaldson + Callif, LLP, on behalf of Film Independent and International Documentary Association); and Mr. Jeffry Sedlik (President and Chief Executive Officer, PLUS Coalition). Written testimony from each witness is available here.

Neal’s statement, endorsed by the Library Copyright Alliance (LCA), provides that the “overarching point is that the existing statutory framework, which combines the specific library exceptions in Section 108 with the flexible fair use right, works well for libraries, and does not require amendment.” In reaching this point, the written statement goes through four issues: 1) the importance of library preservation; 2) how the library exceptions under Section 108 supplement rather than supplant fair use; 3) the diminished need for orphan works legislation; and 4) perspective on the HathiTrust case.

Library Preservation

The written testimony emphasize that providing access to collections of preserved materials is a critical part of libraries’ missions. It notes that with the digital age and new technology, new challenges for preservation have emerged to ensure that new media, which represent a substantial part of the cultural record, are adequately preserved. Neal’s statement gives several examples from his experience at Columbia emphasizing the need to format shift and preserve materials in different formats, including content that existed on short-lived websites. The statement further notes that in order to achieve this mission, libraries “require robust applications of flexible exceptions such as fair use so that copyright technicalities do not interfere with their preservation mission.”

Relationship Between Section 108 and Fair Use

The statement points to the privileged status of libraries throughout the Copyright Act, with seven specific examples. For example, the statement notes that Section 504(c)(2) shields libraries from statutory damages where the library reasonably believed their activity constituted fair use. Section 12014(b) excludes libraries from criminal liability under the DMCA. And, of course, Section 108 provides libraries and archives with a clear set of exceptions for certain activities.

The written testimony emphasizes that Section 108 does not represent the totality of exceptions and limitations from which libraries may benefit, as the Authors Guild initially argued in HathiTrust, and that fair use, amongst other exceptions, may also be relied upon. Without being able to rely on fair use and other exceptions that exist in other sections of the Copyright Act, libraries, including the Library of Congress, would be considered serial infringers. Further, Section 108(f)(4) clearly and unambiguously provides that nothing in Section 108 “in any way affects the right of fair use” and the legislative history supports the meaning of the plain language of the statute. Scholars and case law similarly support this clear reading of the interplay between Section 108 and Section 107.

Furthermore, fair use sufficiently updates Section 108 and it is therefore unnecessary to make legislative changes to Section 108. Neal notes that, as a member of the Section 108 study group, a report was issued after three contentious years, reflected only a high level agreement, and did not resolve many important issues because of the lack of agreement. The statement highlights a concern that some of the Study Group’s recommendation could limit what libraries do today. This section of the statement concludes, “The fact that Section 108 may reflect a pre-digital environment does not mean it is obsolete. It provides libraries and archives with important certainty with respect to the activities it covers. Furthermore, Section 108 provides courts with importance guidance concerning the application of Section 107.”

Orphan Works

The statement also notes that from Neal’s perspective and of LCA’s, orphan works legislation is no longer necessary because the “gatekeeper” problem has diminished due to greater certainty regarding fair use, including recent jurisprudence in this area in a wide range of cases. Furthermore, the Code of Best Practices has provided reassurances with respect to orphan works in a special collection as well as digitizing and making available materials in special collections. In addition to fair use developments, there is less likelihood that injunctions will be issued since the Supreme Court’s 2007 ruling in eBay v. MercExchange which changed the presumptions regarding injunctions in cases of infringement. Furthermore, mass digitization has become more common. In addition to these developments, the clear disagreement over an orphan works solution suggests that a legislative solution regarding orphan works, mass digitization or Section 108 will be very difficult if not impossible.

HathiTrust

The fourth section of the statement explains the HathiTrust project and discusses the litigation initiated by The Authors Guild. The statement goes into Judge Baer’s district court decision in detail and expresses the “hope that the Second Circuit will agree with Judge Baer that HDL (HathiTrust Digital Library) preserves important works, allows them to be searched, and provides access to the print disabled, without causing any economic harm to rights holders.

Harvard Fair Use Week: Best Practices in Fair Use

This week is #FairUseWeek at Harvard. You can follow all the action here, including fair use posts by guest bloggers, videos about fair use, and a live panel on Friday. You can also follow twitter.com/fairuseweek for more updates throughout the week.

The post below is cross posted at Copyright at Harvard Library

Harvard’s Fair Use Week is an opportunity to reflect not only on the importance the doctrine has already had in the academic library community, but also to consider its future role in an ever-changing world of new technologies and circumstances. A professional community consensus on fair use with respect to when and how the doctrine is applied can provide powerful guidance, defining community standards and best practices. The Code of Best Practices in Fair Use for Academic and Research Libraries provides such guidance to a number of areas where fair use applies, including in the digital environment.

Fair use plays a critical role in the copyright system, promoting a balanced system respecting the rights of rightholders while also promoting the public interest and protecting the First Amendment. As a flexible doctrine, fair use can adapt to evolving technologies and new situations that may arise and its long history demonstrates its importance in promoting access to information, future innovation and creativity. Without this flexibility, the law would simply be unable to keep pace with rapid changes and advancements in technology. Within the academic library community, fair use has allowed for better service to patrons in areas of preservation, providing access to information resources, enhancing research, promoting education, among others, particularly where specific limitations and exceptions in the Copyright Law fail to address a particular situation.

The House Judiciary Committee on Subcommittee on Courts, Intellectual Property and the Internet is currently undergoing a “copyright review” and has already held four hearings, the most recent of which addressed “The Scope of Fair Use.” The hearing examined not only the current scope and practice of fair use, but also looked toward what the future of the doctrine might be, particularly whether any changes were necessary.

During the hearing, Members posed questions that covered a wide range of issues including, among others, how to define “transformative,” whether exporting the doctrine to other countries is appropriate and whether fair use is currently working for all groups. Most comments indicated that fair use is working and statutory changes are not necessary, however some raised questions regarding whether jurisprudence on fair use has been predictable. Best practices developed through community consensus and standards goes to the heart of this issue, promoting predictability for both those relying on fair use as well as for the rightholders.

Members expressed interest in best practices during the hearing. For example, Judiciary Committee Ranking Member Conyers (D-MI) referenced best practices twice during his opening statement. After noting the historic application of the fair use doctrine in a broad range of contexts which has been made possible by the flexibility of the doctrine, Conyers concluded by encouraging development best practices: “Fair use impacts all types of industries including filmmaking, poetry, photography, music, education and journalism. We must continue to encourage these industries to develop best practices.” Similarly, Rep. Lofgren (D-CA) seemed to signal interest in best practices when she asked the Chair of the subcommittee to adopt into the record the Code of Best Practices in Fair Use for Online Video.

This interest in best practices is not limited to the legislative branch. While courts are guided by the four statutory fair use factors, in practice, they have also looked to the standard practices of the communities from which the case originates in determining whether fair use applies in a given circumstance. Codes of best practices can guide members of those communities in determining whether fair use applies in a particular circumstance and how to exercise this doctrine in a manner considered acceptable in that particular professional community, thereby minimizing risk of litigation.

The Code of Best Practices in Fair Use for Academic and Research Libraries is therefore an important and useful tool for academic and research libraries making determinations as to what activities are likely to fall under fair use and how to exercise the doctrine. Developed by and for the academic and research library community, the Code identifies eight areas where fair use is commonly exercised and articulates the principles describing each circumstance, a list of considerations to inform these practices, the limitations that are recommended, and enhancements that could strengthen the case for fair use in those situations. These areas include:

  1. Supporting teaching and learning with access to library materials via digital technologies;
  2. Using selections form collection materials to publicize a library’s activities, or to create physical and virtual exhibitions;
  3. Digitizing to preserve at-risk items;
  4. Creating digital collections of archival and special collections materials;
  5. Reproducing materials for use by disabled students, faculty, staff and other appropriate users;
  6. Maintaining the integrity of works deposited in institutional repositories;
  7. Creating databases to facilitate non-consumptive research uses (including search); and
  8. Collecting material posted on the world wide web and making it available.

While some may be hesitant in exercising fair use because of perceived unpredictability, the Code of Best Practices provides reassurances that such activities are considered to be fair use in the community, a factor likely to be looked upon favorably by both Congress and the courts. Such best practices lend predictability to the fair use doctrine, demonstrating a consensus view on the areas where fair use should be exercised and the limitations that should be observed.

Congress need not make statutory changes to a doctrine that has served the public well, providing a crucial “safety valve” in copyright law. Instead, professional communities should continue to develop and rely upon best practices, such as the Code of Best Practices in Fair Use for Academic and Research Libraries, lending greater predictability and certainty to fair use, including in areas of emerging technology.

Don’t forget to check back in throughout the week for more posts about fair use here.