On Friday, April 11, 2014, the Association of Research Libraries (ARL), along with the American Library Association, Association of College and Research Libraries, and other organizations, joined an amicus brief authored by the Electronic Frontier Foundation in Garcia v. Google. The brief urges the US Court of Appeals for the Ninth Circuit to reconsider its decision in this copyright case in which a 2-1 panel ruled in favor of Cindy Lee Garcia, one of the actors in the film Innocence of Muslims. Garcia claimed a copyright interest in her performance after being tricked into appearing in a five-second clip of the film and subsequently sought takedown of the film from YouTube, which is owned by Google.
The decision by the three-judge panel raises serious concerns as it alters the traditional contours of copyright and impacts the future of online free speech. The brief urges the Ninth Circuit to rehear this case en banc, so that the full court may reconsider these important issues.
One week after testifying before the House Committee on the Judiciary Subcommittee on Courts, Intellectual Property and the Internet during the Hearing on Preservation and Reuse of Copyrighted Works, James G. Neal of Columbia University in New York City submitted supplemental testimony to address questions raised during the hearing and expand on his earlier written statement. The supplemental testimony addresses five issues: collective licensing, contractual restrictions on copyright exceptions, preservation of born-digital materials, the cost of preservation, and community fair use best practices. The Library Copyright Alliance has endorsed the supplemental statement.
The supplemental testimony noted that collective rights’ organizations (CROs) often represent problematic models that fail to pay artists and authors the revenues they earned and cautions against relying on such models as solutions, particularly with respect to preservation, mass digitization and orphan works. CROs have had a history of corruption, mismanagement, lack of transparency, among other issues. The statement pointed to two specific examples of problematic behavior of CROs. The first example is that the Copyright Clearance Center (CCC) has used fees it collected from research and academic libraries to sue Georgia State University over the use of books written by academics in an e-reserves case. The second example is the Educational Rights Collective Canada that, in fifteen years of operation, has failed to distribute any royalties to authors but is $830,000 in debt.
Contractual Restrictions on Copyright Exceptions
The supplemental testimony expanded on Neal’s oral testimony with respect to ensuring that contractual provisions do not circumvent the exceptions in the Copyright Act. The testimony noted that in licensing electronic resources, publishers often include terms that restrict the fair use right, library exceptions and first sale doctrine. It also pointed out that restricting such contractual provisions exists in numerous areas, both domestically and in foreign jurisdictions. Neal concluded “As part of its review of the Copyright Act, the Subcommittee should assess the adverse impact of the potential replacement of the public law of copyright with the private law of contract, both on libraries and the public at large. I believe that Congress should adopt restrictions on the enforcement of contractual terms that attempt to limit exceptions in the Copyright Act such as first sale, fair use or interlibrary loan under Section 108.”
Preservation of Born-Digital Materials
Neal’s supplemental testimony expanded on his oral testimony regarding the need to preserve born-digital materials. The supplemental statement pointed to studies that reveal that digital materials are also subject to risk of loss, corruption and destruction. It noted also the issue of website archiving and importance of digital preservation in order to address the problem of “link rot” and preserve the cultural heritage expressed through websites. Neal asserted that it is “essential” to rely on fair use to preserve linked references.
Cost of Preservation
Responding to a question from a member of the Judiciary Committee concerning the cost of preservation and access, Neal expanded on creative solutions to address preservation efforts, noting that HathiTrust and the Digital Preservation Network represent cooperative, shared infrastructure models that avoid unnecessary duplication and can reduce overall costs of preservation. The supplemental statement also noted that while it would have taken the University of Michigan 1,000 years to digitize its collection of books, Google’s assistance has allowed it to already largely complete the digitization effort.
Community Fair Use Best Practices
The final section of Neal’s supplemental testimony endorsed the development of fair use best practices and includes a copy of ARL’s Code of Best Practices in Fair Use for Academic and Research Libraries.
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.
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.”
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.
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.
During the orphan works roundtables, several participants attacked fair use and libraries, misstated the purpose of the copyright system in the United States, or inaccurately portrayed the activities of HathiTrust. Here are just some of the misconceptions or myths cited at the roundtable and responses to these inaccuracies:
Myth 1: Fair use is too uncertain
Some advocates of a legislative orphan works solution argued that legislation is necessary because fair use is too uncertain or unpredictable.
Reality: Fair use is a fairly predictable doctrine
Fair use is actually fairly predictable. Professor Pamela Samuelson wrote an article in 2009 entitled, Unbundling Fair Uses which concluded that “Fair use is both more coherent and more predictable than many commentators have perceived once one recognizes that fair use cases fall into common patterns.” In fact, the Australian Law Reform Commission (ALRC) pointed to this very article when proposing that Australia adopt a fair use provision. The ALRC went on to note that fair use factors can represent “a clear principled standard [that] is more certain than an unclear complex rule.” In recent testimony before the House Judiciary Committee Subcommittee on Courts, Intellectual Property and the Internet, Professor Peter Jaszi (American University) similarly stated that fair use jurisprudence is predictable and coherent.
Myth 2: Recent fair use jurisprudence consumes Section 108 and renders the provision meaningless
Some have argued that applying fair use to activities not explicitly permitted under Section 108 makes this specific limitation, as well as others that libraries rely on, meaningless. They also suggest that fair use goes too far when applied where Section 108 does not apply.
Reality: Section 108(f)(4) includes an explicit savings clause that fair use still applies
Section 108(f)(4) provides that “Nothing in this section—in any way affects the rights of fair use as provided by section 107…” The plain language of the statute could not be any more clear: “Nothing … in any way affects the rights of fair use.” It is obvious that fair use applies even where a specific limitation or exception codified under Section 108 does not, subject of course to evaluation of the four fair use factors. Some argue against the plain language by asking what the purpose of Section 108 is if libraries can simply rely on the fair use provision of Section 107. Explicit limitations and exceptions can be beneficial in providing certainty for certain activities, particularly for those that are risk adverse, or apply where fair use might not. Libraries rely on a mix of purpose specific limitations and exceptions as well as fair use in order to achieve their public service mission and respond to evolving technology.
Myth 3: Fair use being used as an excuse by the library community to perform activities not covered by specific limitations or exceptions
Several participants claimed that fair use was just an excuse being used by the library community where specific limitations do not exist. Others argued that fair use has gone too far and has made copyright the exception to fair use.
Reality: Libraries are a conscientious and risk adverse community. Fair use is being used after careful thought and based on solid legal footing
Although there are numerous purpose specific limitations and exceptions that libraries rely upon, they do not cover every situation and fair use has long been relied upon where specific exceptions do not exist. Libraries are not pirates, but rather, are trusted institutions serving a public mission to provide access to knowledge and culture within the boundaries of the law.
The Code of Best Practices in Fair Use for Academic and Research Libraries notes that “how judges have interpreted fair use affects the community’s ability to employ fair use.” The practices of libraries are grounded in court decisions and judicial interpretations of the fair use doctrine.
Myth 4: Fair use clearly prohibits any uses that have an effect on the market
One commentator at the orphan works roundtable repeatedly argued that relying on fair use for any uses that have an affect on the market violates copyright law and is an infringement of a creator’s rights.
Reality: Fair use is a flexible standard and all four factors are considered together
Fair use is not designed to require satisfaction of all four statutory factors, but instead are considered together. The four factors include: 1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; 2) the nature of the copyrighted work; 3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and 4) the effect of the use upon the potential market for or value for the copyrighted work.
The Supreme Court has explicitly stated that the factors are not to “be treated in isolation from one another. All are to be explored and weighed together, in light of copyright’s purpose” Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994). Following this line of reasoning, circuit courts have confirmed that a defendant does not need to prevail on each of the four factors in order to successfully rely on fair use.
Myth 5: Copyright’s primary purpose is free expression and not to promote the public benefit
A disagreement broke out during one of the panels, with one person arguing that there is no legal basis for the argument that copyright’s primary purpose is to promote the public benefit.
Reality: The Constitution clearly states that the purpose of the intellectual property system is to “promote the progress of science of the useful arts” and the Supreme Court has repeatedly pointed to the importance of the public interest
Article 1, Section 8, Clause 8 of the U.S. Constitution sets forth the constitutional rationale for the intellectual property system: “To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.” The Supreme Court has repeatedly noted that this clause is both a grant of power and a limitation for Congress.
In Sony Corp. of America v. Universal City Studios, the Court cited past precedent dating back to 1932 that “The copyright law, like the patent statutes makes reward to the owner a secondary consideration” and that “The sole interest of the United States and the primary object in conferring the monopoly lie in the general benefits derived by the public from the labors of authors” (emphasis added). Additionally, the Supreme Court noted that “The immediate effect of our copyright law is to secure a fair return for an ‘author’s creative labor. But the ultimate aim is, by this incentive, to stimulate artistic creativity for the general public good” (emphasis added).
Additionally, fair use is an important limitation to copyright and has been upheld by the Supreme Court as a “First Amendment safeguard.”
Myth 6: Best practices in fair use are a contemporary/recent standard and not known by creators
One participant discounted the value of best practices because they have only been developed recently and have not withstood the test of time. Another suggested that the communities themselves did not create these best practices.
Reality: While many codes of best practices are recent, these practices contained within the codes have been used prior to being collected in a code
Codes of best practices do not appear out of thin air. The Code of Best Practices in Fair Use for Academic and Research Libraries, for example, was created in consultation with 150 research and academic librarians across the country. The Code of Best Practices draws upon the experiences of academic and research librarians and is a compilation of their best practices. Although not every librarian might agree with every principle, limitation or enhancement, as pointed out during the roundtable by one of the principal authors of this Code, Brandon Butler, such librarians are in the minority. While the aggregation of these best practices into a single document may have occurred recently, the practices themselves are not new to many libraries.
Myth 7: Digitization without authorization is not fair use. Other than the district courts in HathiTrust and Georgia State, courts have not approved of these types of activities.
Some participants discounted the district court decisions in HathiTrust and Georgia State University, noting that these cases were still in their first round and that circuit courts had yet to decide the case. Others stated that other than these two district courts, no courts have approved of these activities as fair use
Reality: Numerous circuits have upheld mirror image copies as transformative and applied fair use
Although HathiTrust and Georgia State University do involve new issues of mass digitization, several circuit courts have addressed whether mirror image or exact copying is fair use, finding that transformative copies are protected by fair use. The Fourth Circuit in A.V. v. iParadigms, for example found that using student papers to create a plagiarism database was protected under fair use. Similarly, in Perfect 10, Inc. v. Amazon as well as Kelly v. Arriba Soft Corp., the Ninth Circuit found that using website images to create a search index constituted fair use. Likewise, the Second Circuit upheld fair use in Bill Graham Archives v. Dorling Kindersley for the use of concert posters in a book. These cases provided a solid basis for the HathiTrust _and _Georgia State University decisions and suggestions that the district courts went rogue and circuits have not approved of these types of activities are incorrect; circuit after circuit has upheld mirror image copying as fair use. While it is true that both HathiTrust and Georgia State University are on appeal, there are strong legal arguments supporting the application of fair use to mass digitization in these cases.
On March 10-11, 2014 the Copyright Office held roundtables on orphan works and mass digitization. These roundtables included nine sessions, most of which included sixteen panelists representing different organizations and perspectives.
There appeared to be little agreement on the vast majority of issues and opinions diverged widely. The greatest consensus seemed to be opposition to, or at least caution with, extended collective licensing; the Copyright Office noted, however, that some prior comments supported extended collective licensing solutions.
During the sessions, best practices, fair use, the issue of whether orphan works and mass digitization need to be treated separately, and licensing solutions were heavily referenced and discussed. Some individuals attacked recent fair use jurisprudence or claimed that their human rights were threatened by use of orphan works or mass digitization projects. Photographers in particular raised concerns that photographs are turned into orphans too quickly, particularly when images are put on the Internet. The library community seemed to agree on the vast majority of issues, with the exception of one representative from Rutgers University Libraries, and members of the Library Copyright Alliance (LCA) spoke with one voice. Below are summaries from each session.
1) The need for legislation in light of recent legal and technological developments
The first point of disagreement centered around the issue of whether there is even a need for orphan works legislation. Most members of the library community, including the Library Copyright Alliance and a representative of Harvard University, noted that they were satisfied with recent fair use jurisprudence which diminished the need for orphan works legislation. This sentiment was echoed on the next panel by several other representatives of the library community. The Association of American Law Libraries stated their support for legislation in theory, but noted that there is a risk that legislation may not ultimately be a positive. CCIA noted that the complexity and regulatory nature of past orphan works proposals have made some stakeholders oppose a legislative solution.
Others, including Association of American Publishers, Wikimedia, Authors Guild, National Music Publishers’ Association and the representative of Rutgers University Libraries argued that orphan works legislation is needed. Some of those supporting orphan works legislation pointed out that their members or stakeholders value certainty.
In addition to the need for legislation, there were many references to fair use and best practices. Some representatives of rightsholder groups voiced their concern that their stakeholders were not consulted in development of best practices. Some participants noted their approval of recent fair use jurisprudence, while conceding that fair use does not address every issue. The Digital Library Copyright Project noted its project on best practices for use of orphan works for libraries and universities. Representatives of the library community continued to look favorably both on recent fair use jurisprudence and best practices, with the exception of the representative of Rutgers University Libraries who aligned with representatives of some rightsholder groups, including the National Music Publishers Association, American Society of Illustrators Partnership and the American Society of Journalists & Authors and argued that recent court cases on fair use have gone too far.
Although the Copyright Office did not want to engage in a debate over the copyright term, several participants pointed out that the lengthy copyright term in the United States of life plus seventy years has exacerbated the orphan works problem.
2) Defining a good faith “reasonably diligent search standard”
With respect to defining a reasonably diligent search standard, there was again no agreement or consensus view as to how it should be defined and whether a flexible or rigid approach would better solve the orphan works issue. Representatives of the library community encouraged flexible standards due to the differences in users, uses and circumstances that could influence the reasonableness of a search. Additionally, a rigidly defined standard would result in the law being unable to evolve and adapt to new technologies. The American Library Association noted that the searches conducted by librarians reveal sincere efforts to find the rightsholder. A representative of International Documentary Association and Film Independent, pointed out that overly rigid guidelines could result in failure because the legislation would not be used. The Society of American Archivists noted that a high standard for reasonably diligent search could prove too costly and make digitization efforts unsustainable.
Others suggested that a reasonably diligent search standard must have minimum standards and encouraged a more rigid approach in order to provide more certainty. The Motion Picture Association of America and the National Portrait Gallery representatives pointed out that minimum standards could still be flexible.
Some participants offered the following considerations in defining a reasonably diligent search: cost, commercial versus noncommercial intent, free market solutions, type of the work, age of the work and the use of the Copyright Office records. Another issue was whether a reasonably diligent search was possible for mass uses. There was no consensus on any of these issues.
Best practices were again referenced during this session, with many pointing out that they draw on the expertise of the community. Additionally, as noted by the International Documentary Association and Film Independent, best practices can evolve and there have been no specific allegations of misuse in these best practices. Responding to suggestions that the Copyright Office should facilitate drafting of best practices created by rightsholders and the user community, the Library Copyright Alliance pointed out that such negotiations would be long, delay the process at the outset, and could be fruitless, as evidenced by the widely diverging opinions expressed throughout the round table.
3) Role of private and public registries
The Society of American Archivists noted that registries cannot solve all issues and that the majority of orphan works are personal documents. SAA also cautioned that any solution must take into account the cost in searching for an orphan work.
Some of the panelists argued for global registries, while others advocated for voluntary opt-in registries or private registries. Some suggested that there is a need for multiple registries and that users of orphan works must find a way to search all the existing registries.
4) Types of works subject to any orphan works legislation, including issues related specifically to photographs
Much of the discussion centered on whether photographs should be included in an orphan works solution. The Association of American Publishers supported the idea that all works should be subjected to orphan works legislation. Other rightsholder groups specifically suggested a carveout for the interests they represented, such as for illustrators or musicians; others did not specifically advocate for a carveout but said that different works should be treated in a different manner. The Library of Congress pointed to the danger of excluding works such as photographs, because the same photographs are being used over and over again because of the fear in using orphaned works, skewing historical and cultural records.
The American Society of Media Photographers called artists “disenfranchised” and argued that creators would not be able to profit in an ongoing manner. The National Press Photographers Association said that there is a legitimate concern regarding finding the authors of older photographs, but noted that current photographs are instantly made orphans when they are uploaded to the Internet and stripped of their metadata.
The Digital Public Library of America advocated for “democratic access” to works, but the National Press Photographers Association opposed this idea.
During this panel, there was disagreement as to whether the Constitutional rationale of the copyright system is to promote the public benefit. Again, some panelists stated that fair use does enough to address orphan works concerns and already addresses some of the concerns discussed during the panel.
5) Types of users and uses subject to any orphan works legislation
While most panelists during this session seemed to suggest that legislation should cover both commercial and non-commercial users and uses, there was disagreement as to whether they should be treated equally. Additionally, some panelists during earlier sessions voiced disapproval for an orphan works solution that applied to commercial uses.
Several, including the Association of American Publishers, Association of Research Libraries, College Art Association, Writers Guild of America West, and the representative of Harvard University noted that the line between commercial and non-commercial can be difficult to define. Some noted that some non-profit institutions have gift shops or can engage in for-profit activities in order to sustain their non-profit work. Additionally, some commercial entities can provide genuine not-for-profit uses. The Association of American Publishers suggested that commercial entities are necessary because a legislative solution would likely be too complicated for individuals to take advantage of the legislation on their own, but who would be willing to pay for the value provided for by commercial interests.
Some panelists felt the distinction should not be whether a user is commercial or non-commercial, but that consideration should be given to whether a use is commercial or non-commercial. A representative from the Graphic Artists Guild argued that illustrators can clearly explain what are commercial uses and what are non-commercial uses, asserting that their industry would be destroyed if it were possible to use orphaned works for free in the commercial market. The Graphic Artists Guild also noted that non-commercial uses, such as for education and preservation, are already permitted under fair use.
Some arguments were made against making the law overly complicated because doing so could create confusion for individuals or, depending on the complexity, even for lawyers.
6) Remedies and procedures regarding orphan works
This session discussed limitations on monetary damages and injunctions. Most, but not all, participants supported limitations on injunctions because without such limits, no one would take advantage of a solution in which they must invest large amounts of money.
With respect to monetary damages, participants suggested the following: reducing or remitting statutory damages, remitting attorneys fees, and increasing damages for bad actors. Some felt that different standards for different works are appropriate and looking at the circumstances, such as the time or age of commercialization could be taken into account. A representative of the Digital Media Association opposed words like “reduce,” “remit,” or “increase,” arguing that the focus should be on reasonable compensation instead.
The National Press Photographers Association advocated heavily for a small claims court and stated that any orphan works solution should be tied to a willingness to participate in a small claims court.
The National Writers Union argued that the solutions being discussed resulted in blaming the victim and suggested that it is the users of orphan works that should be required to register and notify the public of the intent to use such works.
7) Mass digitization, generally
Throughout the roundtables, many participants argued that orphan works and mass digitization are different issues and must be separated. The panel on mass digitization was the most contentious of the all the panels spanning both days, with attacks on libraries and the Authors Guild making several explicit threats to sue libraries that digitize under a claim of fair use. The contentiousness of this panel highlighted the likely impossibility in coming together to find any solution.
Participants discussed whether fair use applied to mass digitization or whether its use goes too far. The Library Copyright Alliance pointed to several cases supporting the argument that digitization is considered fair use. Although some participants throughout the roundtables dismissed HathiTrust and Georgia State University because both case are on appeal the Library Copyright Alliance noted that the fair use argument is supported by a number of cases that have been decided by several circuits. Again, the library community largely supported the reliance on fair use for digitization projects, with the exception of the representative of Rutgers Universities Libraries. The representative of the University of Michigan, after several attacks on libraries and reliance on fair use, stated that the attacks were unfounded and that libraries are conscientious actors, not pirates. A representative from American University/Creative Commons USA stated that format shifting was clearly fair use, though questions may arise as to the uses after format shifting has taken place.
The Authors Guild disagreed and argued that digitization violates fair use and Section 108. The representative of the Authors Guild issued a “warning” that if libraries continue to digitize and argue fair use, then the Authors Guild would bring lawsuits for this type of behavior. The MPAA stated that it was comfortable with the case-by-case basis approach of fair use, but argued that it is impossible to consider application of fair use in a mass digitization case where you might have 20 million books. The National Press Photographers Association noted that one of the particular problems for photographers is the public perception that everything on the Internet is in the public domain.
As expected, some of the discussion covered the HathiTrust case. The representative of the National Press Photographers Association likened the case to Plessy v. Ferguson, a Supreme Court case from 1892 that upheld the “separate but equal” doctrine until being overturned by Brown v. Board of Education. The National Press Photographers Association argued that HathiTrust had been decided incorrectly and that just because Plessy v. Ferguson was the law for decades, it did not make the law right.
The representative from the Library of Congress pointed to the high costs of mass digitization, stating that it is not as simple as throwing a document into a scanner. He pointed out that there is a value add in what they do by making scans ADA compliant and that there is proper quality control, all of which results in costs to the institution. The Museum of Fine Arts, Boston added that digitization offers new benefits and value, such as providing 360 degree rotation of sculptures or vases, which would not otherwise be available.
8) Extended collective licensing and mass digitization and 9) Structure and mechanics of a possible extended collective licensing system in the United States
Sessions eight and nine overlapped, not only with respect to content but also with some of the same panelists. The participants at the sessions seemed to oppose or were at least wary of extended collective licensing.
Some pointed to the problems of collecting societies including that little money is actually distributed to the creators, there can be a lack of accountability, and they do not take into account the different interests of different authors. A couple of panelists also pointed out that extended collective licensing could come into tension with antitrust laws and that ultimately the states will end up with most fees due to unclaimed property laws.
Most panelists agreed that an individually negotiated license should be the first preference. Many panelists from rightsholder communities stated that voluntary licensing has worked in their communities. Many also pointed out that the United States does not have much history, tradition or experience with extended collective licensing regimes.
One participant noted that extended collective licensing creates an unnecessary tax and can damage fair use; only where fair use does not apply should one seek a license. This participant also pointed to the great value-add that has resulted from mass digitization projects undertaken by libraries.
The National Federation of the Blind cautioned against extended collective licensing because of the huge benefits that mass digitization has provided for persons who are blind or print disabled. He noted that anything that had a chilling effect on mass digitization would likely limit access for persons who are visually impaired and noted concerns with economic disincentives to digitize works.
Written comments are due to the Copyright Office by April 14, 2014. Judging from the discussions at the orphan works roundtable, however, it appears unlikely that the Copyright Office will be able to find a consensus view to please all stakeholders. The views expressed at the roundtable were widely divergent and it seems highly unlikely—given various threats and attacks on libraries as well as the extreme rhetoric regarding fair use—that all stakeholders could come together to find a solution. Even where it seemed like many participants agreed, such as opposing extended collective licensing regimes, the Copyright Office pointed out that some comments submitted in previous requests for comments supported such collective licensing.
On March 3, 2014, the Library Copyright Alliance submitted a response to the EU consultation on the review of copyright rules. The EU website provided a list of 80 questions for stakeholders to answer; the LCA response focuses on those questions most relevant to the library community. The categories of questions to which LCA responded cover digital transmissions, term of protection, limitations and exceptions, preservation and archiving, e-lending, mass digitization, teaching, research, and access for persons with disabilities. The full LCA response can be accessed here.
LCA responds extensively to questions on limitations and exceptions, in particular advocating for fair use. LCA recommends that the EU adopt a flexible fair use provision in order to address areas where specific limitations and exceptions do not exist and to allow the copyright law to evolve as technologies change. With respect to fair use and limitations and exceptions, LCA cites several documents for the EU to consider, including a 2013 white paper, How Flexibility Supports the Goals of Copyright Law: Fair Use and the U.S. Library Experience, ARL’s Code of Best Practices in Fair Use for Academic and Research Libraries, Jonathan Band and Jonathan Gerafi’s The Fair Use/Fair Dealing Handbook, and Jonathan Band and Deborah Goldman’s Global Use and Fair Dealing Decisions Available Online.
In addition to broadly recommending adoption of a fair use provision in response to the EU’s general question regarding limitations and exceptions, the LCA notes in several other areas of the document that fair use can address specific issues concerning the library community. With respect to preservation and archiving, for example, the consultation response notes that while no specific limitation or exception exists in the U.S. to permit web archiving, libraries and archives may rely on fair use to perform such functions. Similarly, the LCA response points out that libraries and archives may pursue mass digitization projects by relying on fair use. With regard to questions on the educational context, LCA notes that fair use can complement specific limitations and exceptions, including where specific limitations, such as those contained in the TEACH Act, are insufficient, too narrow or overly cumbersome.
Responding to other relevant questions, LCA recommends that the EU ratify the Marrakesh Treaty and ensure its implementation in all member states in order to improve accessibility for persons with disabilities. It also notes that current terms of protection for copyright are inappropriate, particularly in the digital age, and can contribute to loss of access to knowledge and an increased number of orphan works. Furthermore, the LCA response opposes any requirements that provision of a hyperlink or viewing of a webpage be subject to the authorization of the rightholder.
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:
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.
On February 13, 2014, the Australian Law Reform Commission (ALRC) issued a 478 page report on “Copyright and the Digital Economy” which made a number of positive recommendations for copyright reform in Australia. A significant portion of the report focused on limitations and exceptions including a recommendation that Australia adopt fair use (or, failing that, to revise its current fair dealing provision), noting the benefits of a flexible standard. In addition to its numerous other recommendations, the ALRC report also examined the practice of using contracts to prohibit or hinder the use of particular limitations and exceptions and recommended an express prohibition against contractual provisions that would restrict specific libraries and archives exceptions.
Below are some highlights from the ALRC report on these two issues.
The ALRC report expressly recommended inclusion of a fair use exception largely modeled after the United States’ statutory provision on fair use, including a non-exhaustive list of factors—essentially mirroring the four fair use factors in the United States Copyright Law—and a non-exhaustive list of illustrative uses or purposes that may qualify as fair use. This recommended list of illustrative purposes includes all of the uses contained in the chapeau to 17 U.S.C. 107, while also recommending the additions of parody or satire; professional advice; quotation; non-commercial private use; incidental or technical use; library or archive use; and access for people with disabilities. Of course, although the United States’ provision does not contain these exact phrases within the statutory language of the fair use provision, courts have often upheld fair use in the context of such purposes.
Arguments for Fair Use
The ALRC report summarized the arguments made in favor of introducing a fair use provision into Australian Law, including that fair use is flexible and technology-neutral; promotes public interest and transformative uses; assists innovation; aligns with reasonable consumer expectations; helps protect right holders’ markets; is sufficiently certain and predictable; and is compatible with moral rights and international law.
ALRC emphasized the benefits of fair use in adapting to evolving technology:
Fair use differs from most current exceptions to copyright in that it is a broad standard that incorporates principles, rather than a detailed prescriptive rule. Law that incorporates principles or standards is generally more flexible than prescriptive rules, and can adapt to new technologies and services. A fair use exception would not need to be amended to account for the fact that consumers now use tablets and store purchased copies of copyright material in personal digital lockers in the cloud.
As a flexible standard, capable of adapting to changing environments, particularly in the digital age, legislatures need not respond to each new circumstance with a new specific limitation or exception. Thus, the ALRC report noted that “Almost 30 existing exceptions could be repealed, if fair use were enacted. In time, others might also be repealed. Replacing so many exceptions with a single fairness exception will make the Copyright Act considerably more clear, coherent and principled.”
In addition, the ALRC report made several references to the benefits of fair use in the educational context. It noted, for example, that the Google Books decision “demonstrates the potential of fair use to advance education and learning and to benefit authors and content owners.” Additionally, pointing to the flaws of the currently enacted fair dealing provision under Australian Law, the ALRC report noted that universities
were in a “worse position” than large commercial enterprises in terms of being able to use third party copyright material for socially beneficial purposes. Commercial news organisations can rely on the fair dealing exception for news reporting, but there is no equivalent specific exception for universities for fair use for educational purposes. Universities Australia submitted that, from a policy perspective, ‘”this makes little sense.”
In addition to the general public benefits to a flexible fair use provision, the ALRC report suggested that adopting fair use will actually increase respect for copyright. It pointed out that the independent UK Hargreaves Review found that growing disagreement over what is permitted under copyright and reasonable consumer expectations undermined the copyright system. The ALRC agreed with Hargreaves’ assessment and noted, “The public is more likely to understand fair use than the existing collection of complex specific exceptions; the exception will seem more reasonable; and this may even increase respect for and compliance with copyright laws more broadly.”
Predictability of Fair Use
The report also addressed criticisms that a flexible fair use standard resulted in too much uncertainty and concluded that fair use is actually quite predictable. The report pointed to Professor Pamela Samuelson’s 2009 article, Unbundling Fair Uses which found that “fair use is both more coherent and more predictable than many commentators have perceived once one recognizes that fair use cases tend to fall into common patterns.”
Furthermore, the ALRC noted that inclusion of a fair use provision in Australian Copyright Law would not introduce a “novel or untested” concept:
Fair use builds on Australia’s fair dealing exceptions, it has been applied in US courts for decades, and it is built on common law copyright principles that date back to the eighteenth century. If fair use is uncertain, this does not seem to have greatly inhibited the creation of films, music, books and other material in the world’s largest exporter of cultural goods, the United States.
Finding that fair use is predictable and “no less certain than Australia’s current copyright exceptions,” the ALRC report went on to point out that fair use determinations can be “guided by the fairness factors, the list of illustrative purposes, existing Australian case law [on fair dealing], other relevant jurisdictions’ case law, and any industry guidelines and coeds of practice that are developed.”
Furthermore, in concluding that adoption of a fair use provision would be beneficial, the ALRC report found that, “Although standards are generally less clear in scope than detailed rules, a clear principled standard is more certain than an unclear complex rule. The Report recommends replacing many complex prescriptive exceptions with one clear and more certain standard—fair use.”
Another significant recommendation of the ALRC report would prohibit contractual provisions that limit or prohibit libraries and archives from exercising the specific limitations and exceptions from which they benefit. The report concedes that while freedom of contract is an important principle, specific contractual provision may lead to significant problems:
contracting out has the potential to render exceptions under the Copyright Act inoperative. Contractual terms excluding or limiting copyright exceptions are commonly used. While contracts may create clarity and provide copyright users with permission to use materials in ways that would otherwise be an infringement, some contractual terms can also erode “socially and economically important uses of copyright works.” Further, copyright users are often unable to negotiate the terms on which copyright materials are licensed, particularly where contracts are entered into online.
The report concluded that allowing such contracts “puts at risk the public benefit that copyright exceptions are intended to provide.” In particular, ALRC found this issue to be particularly relevant to libraries and archives, noting that the beneficiaries of specific exceptions and limitations for libraries and archives are “users of the libraries” and “The fact that users of libraries and archives benefit from these exceptions, but are not parties to the licensing arrangements entered into by libraries and archives, makes it easier to argue that these exceptions should not be able to be removed by contract.” Thus, the ALRC report expressly recommended that:
Recommendation 20–1 The Copyright Act should provide that any term of an agreement that restricts or prevents the doing of an act, which would otherwise be permitted by specific libraries and archives exceptions, is unenforceable.
On February 19, 2014, FCC Chairman Tom Wheeler issued a statement on the FCC’s Open Internet Rules. This statement, a response to the Court of Appeals for the D.C. Circuit’s ruling in Verizon v. FCC overturning the agency’s anti-discrimination and anti-blocking rules, reaffirmed the FCC’s commitment to preserving a free and open internet. ARL’s statement regarding Verizon v. FCC can be found here.
Chairman Wheeler’ noted that while the D.C. Circuit overturned the anti-discrimination and anti-blocking rules, it affirmed the FCC’s broad authority to regulate under Section 706 of the Telecommunications Act. Chairman Wheeler went on to say that the FCC would not appeal the D.C. Circuit’s judgment but would instead work to propose new rules under its Section 706 authority. He stated that the FCC “will carefully consider how, consistent with the court opinion” the agency can ensure that blocking and discrimination do not take place on the Internet.
Although it does not appear that the FCC will take steps to reclassify broadband providers as a telecommunication service from its current classification as information service at this time, it has not ruled out this possibility. Chairman Wheeler’s statement explicitly noted that “as long as Title II—with the ability to reclassify Internet access service as a telecommunications service—remains a part of the Communications Act, the Commission has the ability to utilize it if warranted” and such “authority remains open.”
Furthermore, Chairman Wheeler noted that the FCC would be soliciting public comment and opened a new docket entitled “Protecting and Promoting the Open Internet.” While no deadline has been set for comments, the docket states that “comments filed within the next thirty days will be especially helpful.”
Today, February 11, 2014, individuals and groups are participating in “The Day We Fight Back,” a day of action protesting the government’s mass surveillance programs. Revelations about the NSA programs, including the breadth and scope of bulk collection of data conducted under Section 215 of the PATRIOT Act (also known as the “library records provision”) have raised serious concerns regarding curtailment of civil liberties and the compatibility of these programs with the First and Fourth Amendments.
Following revelations about the NSA bulk collection of data, members of Congress have introduced various bills to address concerns regarding privacy and civil liberties. Members of Congress have also cited concerns regarding the lack of public trust resulting from the secrecy of the FISA Court, which involves a non-adversarial proceeding where only the government’s views are heard and the opinions have been kept secret. As Benjamin Franklin stated, “Those who would give up essential liberty, to purchase a little temporary safety, deserve neither liberty nor safety.” Members of Congress have likewise noted that the choice between security and liberty is a false one; civil liberties represent a cornerstone of the very American values Congress’ sought to defend in enacting provisions to enhance national security.
Even prior to these disclosures, the library community expressed reservations regarding legislation granting the government overly broad national security powers and urged necessary reforms to Section 215 and the national security letters (NSLs) program (which allows collection of data and communication without a warrant). These recommendations included, among others, requiring clear connections to a terrorist or spy for a valid order collecting information, greater judicial oversight and review of FISC decisions, prevention of bulk surveillance of categories of persons, rational limits on the scope of NSLs, and promotion of greater transparency.
Reform efforts are currently underway, some addressing changes previously advocated for by the library community. Last week, the House Judiciary Committee held a hearing examining proposed reforms to FISA, and tomorrow the Senate Judiciary will hold a hearing on reforms proposed by the Privacy and Civil Liberties Oversight Board (PCLOB). With Congress prepared to take an active, and likely swift, role in reforming statutes related to intelligence gathering, three bills show promise in better protecting privacy and civil liberties, promoting greater transparency, and restoring the public trust: the USA FREEDOM Act, the Intelligence Oversight and Surveillance Reform Act, and the Ending Secret Law Act/FISA Court in the Sunshine Act of 2013. The USA FREEDOM Act and Intelligence Oversight and Surveillance Reform Act are comprehensive bills, addressing not only transparency, but also the core issues regarding the collection of data.
USA FREEDOM Act
Representative Sensenbrenner (R-WI) and Senator Leahy (D-VT) introduced identical bills known as the USA FREEDOM Act, on October 29, 2013. The House bill, H.R. 3361, initially had seventy-eight bipartisan co-sponsors. As noted by Ranking Member Conyers (D-MI), the bill now has 130 supporters, with an even split between Republicans and Democrats. The Senate bill, S. 1599, now has nineteen bipartisan co-sponsors.
The USA FREEDOM Act would effectively end bulk collection of data currently collected by the NSA. The amendments proposed by the USA FREEDOM Act would permit the government to request only the records of that “pertain to” a “foreign power or an agent of a foreign power,” the records about the activities of such person under investigation, and records of individuals in contact with such person.
The bill would reform the NSLs program, which currently allows the FBI to request communication and other data without a warrant. The bill seeks to harmonize NSLs with the amendments proposed to the Section 215 program and is designed to prevent bulk collection of records.
With respect to the FISA Court, also known as FISC, the bill would create an Office of the Special Advocate, designed to advocate on behalf of interpretations that protect privacy rights and civil liberties and effectively ending the current ex parte proceedings wherein only the government’s view is heard. The Special Advocate would also be permitted to appeal FISC decisions. In addition to providing a voice for the public’s privacy rights, the USA FREEDOM Act would enhance transparency by requiring the government to make regular reports estimating the total number of individuals subject to FISA orders regarding electronic surveillance, pen registers, and business records. The bill would also direct the Attorney General to declassify decisions or summarize FISC decisions of significant interpretation, consistent with national security considerations.
The USA FREEDOM Act would not only promote greater transparency of FISC opinions and orders, but would also allow companies to publicly report the number of FISA orders and national security letters received and the number of users or accounts where information was demanded under such orders. It also places an obligation on the government to publicly report estimates of the total number of individuals and U.S. persons subject to FISA orders or NSLs.
The USA FREEDOM Act introduces a number of meaningful and necessary reforms.. This bill could be further improved, however, if it incorporated key elements of the USA PATRIOT Amendments Act of 2009, a bill that was introduced but never passed. That bill included several other reforms, including the prohibition of the use of Section 215 orders to obtain personally identifiable information about patrons from libraries, greater judicial review of both Section 215 orders and NSLs, and minimization procedures to ensure destruction of information obtained under national security powers once they are no longer relevant to an ongoing investigation.
Intelligence Oversight and Surveillance Reform Act
In September 2013, Senator Wyden (D-OR) introduced the Intelligence Oversight and Surveillance Reform Act. The bill now has thirteen co-sponsors, also with bipartisan support. Both the Intelligence Oversight and Surveillance Reform Act and the USA FREEDOM Act propose comprehensive reform to the surveillance programs. While the bills are not identical, many of the provisions are substantially similar and largely address the same issues, including effective prohibition of bulk collection under Section 215, harmonization of NSLs with the reforms to Section 215, providing special advocates in FISC proceedings, and greater transparency of FISC opinions and program’s collection of data.
Ending Secret Law Act/FISA Court in the Sunshine Act of 2013
Two bills designed to provide greater transparency of FISC orders, opinions and decisions (currently kept secret) were introduced into both the Senate and House. The Senate bill, Ending Secret Law Act, S.1130 was introduced by Senator Merkley (D-OR) and has bipartisan co-sponsorship. A nearly identical bill entitled FISA Court in the Sunshine Act, H.R. 2440, was introduced by Representative Jackson Lee (D-TX) and also has bipartisan support.
The bill would require the Attorney General to disclose each FISC decision and order, unless such opinion or order cannot be declassified without harming national security interests. If declassification is not possible, the Attorney General is directed to disclose a summary of the opinion. If a summary of the opinion is not possible, the Attorney General is required to make a report available to the public on the “status of the internal deliberations and process regarding the declassification.”
The Ending Secret Law Act/FISA Court in the Sunshine Act would provide greater transparency to FISC decisions and orders than the USA FREEDOM Act by requiring disclosure of each decision, order or opinion, not just those involving significant interpretations. Certainly, the reforms proposed by these bills are welcome as they promote greater transparency and enhance public debate surrounding the important intersection of security and civil liberties.