Tag Archives: legislation

Thoughts on Fair Use and the Copyright Office Report/Proposal on Mass Digitization

On June 4, 2015 the Copyright Office released its Report on Orphan Works and Mass Digitization. Previous coverage of the orphan works section of the report is available here and the Library Copyright Alliance’s response to the report is available here. This post focuses on the section of the report covering mass digitization and lays out concerns with the report’s proposal and treatment of fair use. The Copyright Office’s report proposes an extended collective licensing (ECL) system, and has issued a Notice of Inquiry requesting public comments, due on August 10, 2015.

Copyright Office Report and Proposed ECL Program

During the March 2014 orphan works roundtables, the general view was that ECL was not a workable solution and there was a lack of interest in pursuing this approach. Despite the opposition to or wariness of ECL, the Copyright Office is nonetheless recommending ECL.

The report suggests that mass digitization cannot be accomplished with the exception of narrow circumstances. The report acknowledges that courts have concluded that mass digitization for full-text search and access for the print-disabled are protected by fair use, but argue that these cases “do not extend to the wider dissemination of copyrighted works without permission or compensation.”

The Copyright Office’s report also discusses voluntary stakeholder agreements, concluding that such arrangements would not protect users from infringement claims by copyright owners that are not part of the agreement.

The Copyright Office proposes a pilot ECL program, limited to specific categories of works. The report suggests “that ECL makes the most sense for the following works: (1) literary works; (2) pictorial or graphic works published as illustrations, diagrams, or similar adjuncts to literary works; and (3) photographs.” The proposed program would be limited to uses “undertaken for nonprofit educational or research purposes and without any purpose of direct or indirect commercial advantage.” While the proposal would allow a for-profit entity to use the program, “it would not be permitted to generate revenue from the collection by, for example, displaying advertisements or charging fees.” According to the proposal, Copyright Office would be tasked with approving collective management organizations (CMO) as part of the ECL. The approved CMO would represent all rights holders, except for those that affirmatively opt-out. The proposal suggests that the proposed Google Books settlement can provide an example of how license agreements can be structured.

In terms of royalty payments, the report states that, “while a CMO should be permitted to deduct fees from the license payments it collects, such deductions should be limited to amounts reasonably necessary to cover specified operational costs.” Where a CMO fails to locate a rights holder who is owed royalties within a specified time period, the CMO should transfer the funds to a trust account. If the funds in the trust account remain unclaimed after three years, the CMO could deduct a reasonable fee and then distribute the balance to educational or literacy based charities.

The Copyright Office’s report does suggest a fair use “savings clause providing that nothing in the statute is intended to affect the scope of fair use.”

Mass Digitization and Fair Use

Unfortunately, notwithstanding the inclusion of a fair use savings clause, the report seems to mischaracterize the importance of fair use in many mass digitization projects. The report asserts that the ECL proposal is intended for “activity for which there is broad agreement that no colorable fair use claim exists: providing digital access to copyrighted works in their entirety.” The Copyright Office continues:

To the extent it could be argued that any individual aspect of a mass digitization project might by itself qualify as fair use (e.g., the underlying digital copying), we would expect that view to be reflected in the overall license fee negotiated between the CMO and the user. That is, where the parties agree that a particular use would likely be deemed fair under established law, the portion of the license fee pertaining to that activity would likely be at or near zero (emphasis added).

This paragraph raises a number of concerns. First, it assumes that the parties must agree that a use is fair and implies that a user must first discuss and negotiate with the CMO. Fair use is a right and a user conducting activities that are fair uses need not engage in any prior discussions or negotiations with rights holders. While there may be circumstances in which a user wishes to first notify or discuss a particular use with the rights holder, he or she is not required to do so.

Furthermore, even with a fair use savings clause, parties may not agree that a use is fair use. In the Authors Guild v. HathiTrust litigation, the Authors Guild asserted that where HathiTrust’s activities went beyond the scope of what is permitted under Section 108, the Copyright Act’s specific exception for libraries and archives (which contains a fair use savings clause), they could not be considered fair use. While the Second Circuit dismissed this argument in a footnote to its opinion, other plaintiffs may try to make similar arguments.

Moreover, in situations where precedent strongly favors an understanding that a particular use would be considered a fair use , the rights holders might argue that the precedent is wrongly decided. Some rights holders argue that the fair use right has been applied too broadly by the courts. During the orphan works roundtables, one participant compared recent fair use case law to Plessy v. Ferguson, the 1892 Supreme Court case that upheld the “separate but equal” doctrine until being overturned by Brown v. Board of Education in 1954. Relatedly, during the orphan works roundtables, there were repeated suggestions that there were only two cases—HathiTrust and Google Books, both of which were on appeal at the time of the roundtables—that supported mass digitization and could be overturned. As Jonathan Band pointed out at the roundtable, however, various other Circuit Courts of Appeals cases also support mass digitization. He noted that HathiTrust and Google Books were based on earlier cases such as Kelly v. Arriba Soft, Perfect Ten v. Amazon and A.V. v. iParadigms.

Finally, rights holders may attempt to distinguish precedent on the basis of minor factual differences.

Special Collections

It appears that the Copyright Office is interested pursuing an ECL pilot program for the very types of collections that libraries already digitize and allow access to under fair use. The report notes, “The Office is particularly interested in stakeholder views regarding examples of mass digitization projects that may be appropriate for licensing under the proposed pilot. These comments may include (but need not be limited to) descriptions of particular collections of copyrighted works (e.g., Depression-era photographs) that prospective users may wish to digitize and make available through ECL.”

Digitizing a collection of Depression-era photographs seems to be a great example of what would likely be fair use. This example suggests a special collection of works that are primarily orphan works. It is unlikely that the rights holders for such works could be identified and located. These works are not likely to be exploited commercially and digitizing them and making them accessible online would therefore not harm the original market for the works. Digitization projects involving special collections often include enhancements that make the collection more useful, such as the inclusion of metadata.

The ARL Code of Best Practices in Fair Use for Academic and Research Libraries sets forth limitations and enhancements for a library’s fair use case in the context of digitizing special collections and making them electronically accessible:

PRINCIPLE:

It is fair use to create digital versions of a library’s special collections and archives and to make these versions electronically accessible in appropriate contexts.

LIMITATIONS:

  • Providing access to published works that are available in unused copies on the commercial market at reasonable prices should be undertaken only with careful considerations, if at all. To the extent that the copy of such a work in a particular collection is unique (e.g., contains marginalia or other unique markings or characteristics), access to unique aspects of the copy will be supportable under fair use. The presence of non-unique copies in a special collection can be indicated by descriptive entries without implicating copyright.
  • Where digitized special collections are posted online, reasonable steps should be taken to limit access to material likely to contain damaging or sensitive private information.
  • Full attribution, in a form satisfactory to scholars in the field, should be provided for all special collection items made available online, to the extent it is reasonably possible to do so.

ENHANCEMENTS:

  • The fair use case will be even stronger where items to be digitized consist largely of works, such as personal photographs, correspondence, or ephemera, whose owners are not exploiting the material commercially and likely could not be located to seek permission for new uses.
  • Libraries should consider taking technological steps, reasonable in light of both the nature of the material and of institutional capabilities, to prevent downloading of digital files by users, or else to limit the quality of files to what is appropriate to the use.
  • Libraries should also provide copyright owners with a simple tool for registering objections to online use, and respond to such objections promptly.
  • Subject to the considerations outlined above, a special collection should be digitized in its entirety, and presented as a cohesive collection whenever possible.
  • Adding criticism, commentary, rich metadata, and other additional value and context to the collection will strengthen the fair use case.
  • The fair use case will be stronger when the availability of the material is appropriately publicized to scholars in the field and other persons likely to be especially interested.

A number of libraries rely on fair use in the digitization of their special collections. For example, Duke University digitized a collection of historic TV commercials, called adViews. While Duke secured agreements from many of the rights holders of the commercials, it also relied on fair use because of the impossibility of identifying all rights holders of TV commercials. As is the case with many special collections, Duke enhanced its fair use position by adding additional videos to the collection featuring executives talking about TV advertising in the early 1960s as well as faculty members discussing the ways they used the materials in teaching.

Another great example is New York Public Library’s (NYPL) digitization of a collection of materials from the 1939 New York World’s Fair. The collection included records, documents, promotional photographs and other ephemera. As detailed by this Fair Use Week guest blog post by Greg Cram, Associate Director of Copyright and Information Policy for New York Public Library, it was extremely difficult to determine whether the works were in copyright and a good-faith search for rights holders “was time-consuming and, ultimately, fruitless.” Relying, in part, on statements and codes of best practices, as well as views of academics, NYPL conducted a fair use analysis and decided to “move forward with digitization of portions of the collection after balancing the education benefit of the undertaking against the risk that a rights holder might subsequently surface” and posted selections online. NYPL created a free iPad application to feature the digitized content and this application was named one of Apple’s “Top Education Apps” of 2011.

These are just two of the many examples where mass digitization projects have relied on fair use. Special collections are a prime example where fair use may provide a strong basis for undertaking these projects. In both of the cases above, it does not appear that rights holders have contacted the institutions to complain or ask that they limit the uses of the digitized works.

In sum, the Copyright Office’s proposed ECL pilot program is inappropriate for special collections.

 

 

ARL Supports Amash-Conyers Amendment to End Bulk Collection Under Section 215

An amendment to the Defense Appropriations bill proposed by Representatives Justin Amash (R-MI) and John Conyers (D-MI) would return Section 215 to a reasonable scope, allowing the collection of important information about suspected terrorists but barring large-scale collection of information about innocent Americans. The Association of Research Libraries strongly supports this amendment, which would curtail the National Security Agency’s (NSA) program to collect the phone records of millions of Americans.

Section 215 is often referred to as the ‘library records provision,’ because libraries have been sounding the alarm about its massive scope for years. The breadth of the statute made overreach nearly inevitable; revelations about the NSA’s bulk collection of information about innocent Americans makes reform imperative.

The Amash-Conyers Amendment is a rare opportunity to send a strong, bipartisan message to the NSA that its surveillance activities have gone too far. ARL applauds Representatives Amash and Conyers and urges other Representatives to join them in voting to restore balance to the NSA’s surveillance practices.

PIPA, SOPA and OPEN Act Quick Reference Guide

libraryadvocates:

In case you missed it, our Assoc. Director in the Office of Government Relations, Corey Williams created this helpful PIPA, SOPA and OPEN Act Quick Reference Guide (pdf). If you’re just looking for tl;dr – The ALA will continue to voice strong opposition to PIPA and SOPA, while further analysis of the OPEN Act is needed.

One Step Closer to Getting What You Pay For

photo courtesy of hern42 by CC license

If you pay taxes, then you are contributing to the over $60 billion (with a “B”) the federal government spends annually to support basic and applied scientific research projects in hundreds of universities and labs around the country. It’s not surprising that the richest country in the world would invest some of its public resources in research that can save lives and jump-start new technologies. What is surprising is that after the government spends millions of your dollars supporting this research, the results are made available only through private companies third parties that charge you a fee for access even though you already paid for the research!

Last Thursday the House of Representatives moved to downsize this double-billing system by introducing the Federal Research Public Access Act (aka H.R. 5037, identical to the bill already pending in the Senate, S.1373). More after the jump on what’s in the bill and how you can help get it passed.

Known to its friends as “FRPAA” (rhymes with “sherpa”), the bill would require recipients of research funding from the 11 federal agencies and departments with extramural research budgets of $100 million or more to place a digital copy of the full text of any final manuscript resulting from that funding into an online, interoperable repository, to be made publicly accessible no later than 6 months after publication in a peer-reviewed journal. This gives journals a 6-month window to profit from the journal literature they make available (more than enough to recover costs in the lucrative journal market, where institutions pay millions for up-to-the-second access to bleeding-edge research), but insures free public access thereafter.

The bill’s original co-sponsors are Rep. Doyle (D-PA), Rep. Waxman (D-CA), Rep. Wasserman-Schultz (D-FL), Rep. Harper (R-MS), Rep. Boucher (D-VA), and Rep. Rohrabacher (R-CA). Many other members have expressed interest, and we hope more co-sponsors will be added over the next few weeks.

The Alliance for Taxpayer Access has a nice action page where you can find helpful information about how you can show your support for this important legislation. The main thing you can do: contact your Representative and urge them to support the bill. If they are already a co-sponsor, thank them. If they are not, suggest that they sign on to co-sponsor the bill.

This should be an issue everyone can get behind. It’s not a question of whether information should be “free,” because this research is paid for. FRPAA just gives taxpayers access to the science we bought.