On July 18, 2014, ARL, together with ten other library and higher education groups filed comments with the FCC on net neutrality. These comments largely expand on the points made in the Net Neutrality Principles jointly filed by library and higher education groups on July 10, 2014, going into greater detail and making specific suggestions to strengthen the proposals made in the FCC’s Notice of Proposed Rulemaking.
Importance of Net Neutrality for Libraries and Higher Education
The comments point out that library and higher education organizations depend on the open Internet, or net neutrality, to carry out their missions and ensure the protection of freedom of speech, education achievement and economic growth. It notes that the essential character of the Internet is an open platform, promoting “the open exchange of information, intellectual discourse, research, free speech, technological creativity, innovation and learning.” The comments recommend that the FCC’s final order recognize the value of net neutrality for education, research and freedom of speech.
Specifically, the comments note that public libraries provide Internet access to their patrons, a particularly necessary service for the approximately one-third of the population that do not have broadband access at home but rely on such access for homework assignments, to locate e-government services, find health information, apply for jobs, share digital content and other activities. Higher education institutions make Internet access available to their students, faculty, researchers and administration. Many students today are also involved in distance learning—including MOOCs—or hybrid courses and therefore depend on the availability of high-bandwidth Internet access. Degradation of Internet transmission speeds would detrimentally impact these populations and activities.
The comments also provide seven specific examples of projects and services by libraries and higher education institutions that provide important access to information and culture but depend on net neutrality to disseminate. Three of these examples include:
Specific Proposals to Strengthen the Proposed Rules
The joint comments lay out several specific proposals to strengthen those proposed rules published in the FCC’s NPRM. The FCC could strengthen the rules and address the concerns of libraries and higher education by:
Legal Basis for the FCC’s Actions
The comments clearly note that if the FCC reclassifies broadband Internet service as a Title II “common carrier” service, it would provide valuable certainty in the market place and ensure that the goal of prohibiting discrimination. However, if the FCC chooses not to reclassify and use its Title II authority, it may act under its Section 706 authority.
The comments recommend, however, that should the FCC exercise its Section 706 authority rather than choosing to reclassify broadband Internet services, the agency should use an “Internet reasonable” standard rather than a “commercially reasonable” standard because “a ‘commercially reasonable’ approach could be interpreted to allow any broadband and edge provider to reach a contract to provide “paid prioritization”. If the two companies reach an agreement that they mutually believe to be in their commercial interests, it might be found “commercially reasonable” even if it has the effect of degrading the Internet service used by other parties (such as higher education institutions and libraries) sharing the same network.”
The comments note that an “Internet reasonable” standard would recognize the Internet’s unique character and propose four rebuttable presumptions that the FCC could use to evaluate the reasonableness of an Internet provider’s actions. The following four activities should be considered presumptively unreasonable: 1) requiring approval to carry lawful content, applications or services; 2) allowing paid prioritization; 3) undermining the open architecture of the Internet; and 4) degrading the level of service provided and discouraging investment in greater bandwidth to a non-prioritized party.
The written testimony of four of the five witnesses speaking at the July 15, 2014 House Judiciary Subcommittee Hearing on Moral Rights, Termination Rights, Resale Royalty and Copyright Term, address the issue of copyright term. Notably, none of these witnesses suggest that the current term be extended further and Professor of Law Michael Carroll argues that the current term of protection is too long. Although the other witnesses did not propose extension of copyright, it should be noted that Rick Carnes, President of the Songwriters Guild of America, asserts that the current copyright term in the United States is appropriate and should not be shortened. Although he devotes only a single paragraph to the issue of copyright term, his written testimony nonetheless contains statements that are misleading or untrue.
Myth 1: The current copyright term represents the international standard. Mr. Carnes’ written testimony asserts that “suggestions that the United States should break with the rest of the world to reduce the current term of copyright protection (designed specifically to allow creators to address the economic welfare of their families for a time period limited basically to the lives of their grandchildren) in order to stimulate ‘faster growth of the public domain’ should be rejected outright.”
Fact: The copyright term in the United States extends well beyond the Berne Convention’s standard and beyond the term of protection in the majority of countries. Many countries’ copyright terms are set by the international agreements to which they are bound. The Berne Convention sets the minimum copyright term as the life of the author plus fifty years. The current term of protection in the United States is set at a period of the life of the author plus an additional seventy years. For corporate works or “works for hire,” the period of protection is set at ninety-five years. These terms far exceed what is required by international law.
Reducing the copyright term to the Berne standard would not “break with the rest of the world” as suggested by Mr. Carnes. The vast majority of countries use the Berne standard of life plus fifty years; there are almost twice as many countries with a period of protection shorter than the current term in the United States than there are countries with a period of life plus seventy years or greater.
Myth 2: The U.S. Copyright Office considers the current copyright term as proper. Mr. Carnes’ written testimony asserts that the “U.S. Copyright Office, Congress and the United States Supreme Court have considered this issue on numerous occasions and determined that the current term of copyright protection established under Article I Section 8 of the U.S. Constitution is not only proper, but serves the dual purpose of supporting the marketplace of ideas by encouraging professional creativity and bolstering the U.S. economy and balance of trade as well.”
Fact: The U.S. Copyright Office has questioned the value of a lengthy copyright term. As noted in the LCA statement, Register of Copyrights Maria Pallante has suggested that the current copyright term in the United States may not be beneficial. Ms. Pallante noted in a 2013 speech:
The benefits of a lengthy term are meaningless if the current owner of the work cannot be identified or cannot be located. Often times, this is complicated by the fact that the current owner is not the author or even the author’s children or grandchildren. As the Copyright Office recognized in one of its key revision studies of the 1950s, 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.”
The Copyright Office has clearly expressed its concerns regarding copyright terms extending well beyond the life of the author and Mr. Carnes’ assertion that the Copyright Office has determined that a period of life plus seventy years is appropriate is simply untrue.
Further, in recognition of the harms that the 1998 Copyright Term Extension Act has caused, Ms. Pallante has proposed the reintroduction of formalities for the last twenty years of protection.
Myth 3: The Supreme Court has determined the current copyright term is proper. Mr. Carnes also asserts that the Supreme Court has endorsed the present copyright term as proper, a misreading of Eldred v. Ashcroft.
Fact: The Supreme Court never addressed the question of whether a period of protection of life plus seventy years was appropriate. The Court only upheld the power of Congress to set the term and extend the term retroactively. The majority opinion in Eldred, while upholding the Copyright Term Extension Act, never addressed the propriety or benefits of the extension itself. Instead, the court addressed “the authority the Constitution assigns to Congress to prescribe the duration of copyrights.” As Justice Stevens’ dissent further points out, the question of “whether the extraordinary length of the grants authorized by the 1998 Act are invalid because they are the functional equivalent of perpetual copyrights is a question that need not be answered in this case because the question presented by the certiorari petition merely challenges Congress’ power to extend retroactively the terms of existing copyrights.”
The Court, by a 7-2 margin, interpreted the term “limited Times” as meaning “confined within certain bounds, “restrained,” or “circumscribed” and found that extending the copyright term by twenty years did not exceed this prescription. The majority then noted that on the question of whether the extension was a “rational exercise of legislative authority conferred by the Copyright Clause … we defer substantially to Congress.” The Court went on to state that the act “reflects judgments of a kind Congress typically makes, judgments we cannot dismiss as outside the Legislature’s domain.” Justice Stevens’ dissent notes that, “Fairly read, the Court has stated that congress’ actions under the Copyright/Patent Clause are, for all intent and purposes, judicially unreviewable.”
Notably, the Court states that in finding that the extension was a rational exercise of authority, “we are not at liberty to second-guess congressional determinations and policy judgments of this order, however debatable or arguably unwise they may be.” The majority never decides whether the extension to the present term of life plus seventy is appropriate and could, arguably, be interpreted as suggesting that the extension might be unwise.
While neither the majority nor Justice Steven’s dissent address the appropriateness of the copyright term extension, Justice Breyer’s dissent vigorously opposes the extension as violating the Constitutional rationale of the intellectual property system:
The economic effect of this 20-year extension—the longest blanket extension since the Nation’s founding—is to make the copyright term not limited, but virtually perpetual. Its primary legal effect is to grant the extended term not to authors, but their heirs, estates or corporate successors. And most importantly, its practical effect is not to promote, but to inhibit, the progress of “Science”—by which word the Framers meant learning or knowledge.
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.
On July 8, 2014, the Library Copyright Alliance filed an amici brief in the Court of Appeals for the Second Circuit in Authors Guild v. Google in favor of Google’s transformative use in creating Google Book Search (GBS). The Southern District of New York previously ruled in favor of Google, finding that GBS provided significant public benefits and constituted fair use.
The brief notes that GBS has become an essential research tool for LCA members and includes numerous examples and quotations—both in the text of the brief and accompanying appendix—from librarians explaining the value of the snippet display provided by Google. The snippet display allows librarians and researchers to identify materials that are hard to find, conduct research, developing curricula and collections, make determinations on whether to request particular books through interlibrary loans, and checking citation.
The snippet display is a critical function that makes GBS a valuable research tool yet does not substitute for the full text, displaying only three short snippets in response to a query. The brief notes that the Appellants in the case negotiated and agreed to a settlement (ultimately rejected by Judge Chin, leading to this continuing litigation) which would have allowed Google to provide a free “Preview” service that would have allowed display of up to twenty percent of the book’s text—far more than the GBS snippet display. The brief points out that “If display of 20 percent of a book did not cannibalize sales of the book, then surely display of a few snippets of a book would not do so either.”
The third section of the brief discusses the relationship between Section 108 and fair use, addressing the argument made by the amici for Authors Guild . The brief points out that the Second Circuit’s own ruling just a month prior in Authors Guild v. HathiTrust rejected the argument that the existence of Section 108 forecloses reliance on fair use. Section 108 not only includes an explicit savings clause, but the legislative intent clearly demonstrates that specific exceptions codified in the Copyright Act “do not limit the availability of fair use for conduct that does not fall within its scope.” Legislative history in both the Senate and the House discuss the relationship between Section 108 and fair use, noting that Section 108 was designed to give libraries a safe harbor and rights in addition to fair use.
Finally, the brief notes that the copies Google made available to partner libraries constituted fair use. Quoting the district court, the brief points out that “the purpose of the library copies is to advance the libraries’ lawful uses of the digitized books consistent with the copyright law.” Even if the Second Circuit evaluates Google’s purpose, rather than the libraries’ purpose, the brief points out that GBS did not affect the market because libraries would not have paid licensing fees to digitize books in their collections; libraries do not have the budgets to pay for digitization licenses for legacy materials nor is there an efficient mechanism to pay for such licensing. The brief emphasizes that a potential market for extended collective licensing agreements are speculative and do not constitute existing or potential traditional markets.
On July 9, 2014, ARL joined thirty-four other organizations in sending a letter to ministers of the Trans-Pacific Partnership (TPP) negotiating parties opposing the copyright term of life plus seventy years proposed by the United States. These organizations, representing libraries, archives, authors, educators, students, digital rights advocacy groups, and technological innovators, note that this extended copyright term threatens the public domain. The letter notes that “the extension of the copyright term results in a net welfare loss to society, and effectively amounts to a transfer of wealth to a small number of multinational copyright-holding companies … This transfer of welfare in favor of large corporate copyright owners will come at the cost of those who depend upon access to copyright works that would otherwise be in the public domain—libraries, students, artists, writers, and millions of other people.”
TPP negotiators are currently meeting behind closed doors in Ottawa, Canada, in an effort to finalize negotiations for the large regional trade agreement which now has twelve negotiating parties: Australia, Brunei, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore, Vietnam and the United States.
On July 3, 2014, the District Court for the Southern District of New York issued its memorandum and order in White v. West Publishing following its grant of summary judgment for the defendants in February 2013 finding in favor of fair use. The case involved a claim by attorneys Edward White and Kenneth Elan who claimed copyright infringement after West Publishing and Reed Elsevier placed legal briefs written by White and Elan into their Westlaw and Lexis databases.
In creating the databases, West Publishing and Reed Elsevier converts the filed legal documents into a text-searchable electronic file and is tagged with metadata to allow users to find and retrieve documents more easily. The editors also link the document to decisions and other filings in related cases and create links to authorities cited.
In finding in favor of fair use, Judge Rakoff evaluated the four statutory fair use factors:
In examining each of these factors, the district court found that three of the four weighed in favor of fair use, while one factor was neutral.
On the first factor, the district court found that the use of the briefs was transformative because the use of the briefs in the database was to create an interactive legal research tool, a “sharply different objective” than the original purpose of the briefs. Additionally, the district court noted that the converting, coding and linking of the documents “add something new, with a further purpose or different character” than the original. The district court pointed out that while the use was commercial, the highly transformative nature of the use diminished the importance of the character of the use.
With respect to the second factor, the district court noted that the briefs represented presentations of fact and law and therefore this factor weighed in favor of fair use.
The district court noted that with regard to the third factor, West and Lexis copied the entire work. However, the “defendants only copied what was reasonably necessary for their transformative use, and … the third factor is therefore neutral.”
Finally, on the fourth factor, the district court found no market harm because the databases do not provide a substitute for the original market. The court stated, “West’s and Lexis’s usage of the briefs is in no way economically a substitute for the use of the briefs in their original market: the provision of legal advice for an attorney’s clients … Furthermore, no secondary market exists in which White could license or sell the briefs to other attorneys, as no one has offered to license any of White’s motions, nor has White sought to license or sell them.” The district court also rejected the idea that a potential market exists to license briefs.
Although the district court does briefly reference potential markets, it focuses on the market effect on the original market thereby following the recent Second Circuit opinion in Authors Guild v. Hathitrust which stated that the analysis of the fourth factor “is concerned with only one type of economic injury to a copyright holder: the harm that results because the secondary use serves as a substitute for the original work.” A limited focus on the harm to the market for the original work suggests that lost licensing revenue is not relevant in the fair use analysis when the use is transformative and does not impact the original market.
Jonathan Band of policybandwidth recently released an analysis of the Second Circuit’s opinion in Authors Guild v. Hathitrust and what the decision means for libraries. His analysis is available here.
The library community welcomed the decision of the U.S. Court of Appeals for the Second Circuit in Authors Guild v. HathiTrust, __ F. 3d __, 2014 WL 2576342 (2nd Cir. 2014). The decision has implications for libraries that go far beyond the specific facts of the case. This paper offers some preliminary thoughts on what these implications may be.
The World Intellectual Property Organization (WIPO) Marrakesh Treaty to Facilitate Access to Published Works for Persons Who are Blind, Visually Impaired, or Otherwise Print Disabled now has seventy-nine signatories. This treaty, also known as the “Marrakesh Treaty” or “Treaty for the Blind” was a significant achievement as the first WIPO treaty dedicated to limitations and exceptions, focusing on the rights of users rather than increasing the rights of rightholders. Significantly, India became the first country to ratify the treaty on June 24, 2014 (deposit with WIPO on June 30, 2014).
The treaty sets forth minimum standards for limitations and exceptions designed to facilitate access to accessible format works for persons who are blind, visually impaired or otherwise print disabled. It would also permit cross-border sharing of these accessible format works, allowing countries to avoid unnecessary duplication of efforts in the creation of accessible format works and also facilitate the importation of works in other languages. For example, a popular title would not have to be created in accessible format work in the United States, then again in Canada, then again in the United Kingdom, then again in Australia, and so forth. It could be created in one English speaking country then shared for the benefit of persons who are visually impaired in other English speaking countries. Persons in the United States could also benefit from this treaty through the importation of accessible format works in languages other than English, either to benefit those residing in the United States whose native language is not English, or to benefit those who are learning a foreign language. Tiflolibros in Argentina, for example, has a large library of Spanish language accessible format works that could be shared with beneficiaries in the United States if the treaty entered into force. More detailed information about the treaty is available in the “Users Guide to the Marrakesh Treaty.”
There was a recent flurry of signing activity due to Article 17 of the Marrakesh Treaty, which closed the treaty to signing one year after adoption of the treaty; June 27, 2014 was the last date for a country to sign. Signing the treaty signals that a country agrees with the treaty and essentially constitutes an endorsement of the instrument. While it does not create binding legal obligations to adhere to the requirements of the treaty, it does oblige the signatory from undermining the treaty’s objectives. Countries that have signed still need to ratify the treaty in order to be bound by it, and twenty ratifications are required before the Marrakesh Treaty will enter into force. Although the treaty is now closed to new signatures, other countries may join the treaty through a one-step process acceding to the treaty (rather than the two-step process of signing then ratifying).
A round of applause should be given to India for being the first (and currently only) country to ratify the Marrakesh Treaty, though it is expected that Kenya will soon follow. India’s swift ratification, within one year after the treaty’s adoption, is a record for any WIPO treaty and signals the importance of the objectives of the treaty.
In addition to the excellent news of the first ratification of the Marrakesh Treaty, there have also been nineteen new signatories over the last two months, twelve of which occurred over the last week. Notably, the EU signed the Marrakesh Treaty on April 30, 2014, and a number of EU member countries followed suit. The new signatories include: Argentina, Australia, Austria, Belgium, the Czech Republic, the European Union, Finland, France, Germany, Greece, Guatemala, India, Iran, Ireland, Mexico, Norway, Poland, South Korea and Slovenia. The United States signed last year on October 2, 2013.
The treaty initially opened for signature at the adoption and signing ceremony of the diplomatic conference on June 28, 2013. Fifty-one countries signed at the adoption and signing ceremony, a record number of signatories on opening day for any WIPO treaty. The full list of the seventy-nine signatories is available here. While this large number of signatories demonstrates the overwhelming support for the Marrakesh Treaty and is a reason for celebration, at least twenty of these signatories must take the next step and sign the treaty so that it may enter into force.
With India depositing its instrument of ratification, only nineteen more are needed. The United States, which already has robust limitations and exceptions to benefit persons who are visually impaired, should demonstrate leadership in this area and be one of the first twenty ratifications.
On June 26, 2014 the Association of Research Libraries joined with thirty-four other organizations opposing the Cyber Information Sharing Act of 2014 (CISA). This broad coalition sent a letter to Majority Leader Harry Reid (D-NV), Minority Leader Mitch McConnell (R-KY), U.S. Senate Select Committee on Intelligence Chairman Dianne Feinstein (D-CA), and U.S. Senate Select Committee on Intelligence Vice Chairman Saxby Chambliss (R-GA) expressing concerns that the bill would create a loophole in existing privacy laws and does not prevent the government from requesting “voluntary” cooperation from private companies in sharing information, including content of communications.
The letter raises a number of concerns, including threats the bill poses to whistleblowers and transparency. Additionally, with respect to specific privacy concerns, the letter notes that the bill creates a “danger of a potential end-run around the Foreign Intelligence Surveillance Act (“FISA”), the Electronic Communications Privacy Act (“ECPA”), the Fourth Amendment and other crucial privacy protections [which] is compounded by the potentially broad immunity conferred on sharing ‘in accordance’ with the act, and the additional absolute defense when sharing occurs in violation of the act but in ‘good faith’ reliance on the mistaken belief that the sharing is lawful.”
This letter makes several specific recommendations:
This week, the World Intellectual Property Organization (WIPO) Standing Committee on Copyright and Related Rights (SCCR) will meet from June 30-July 4. The agenda for this session of SCCR includes discussion of broadcasting, limitations and exceptions for libraries, and limitations and exceptions for educational and research institutions and for persons with other disabilities.
At the last meeting of SCCR which took place from April 28-May 2, the EU blocked the conclusions of the meeting, refusing to agree to language referring to “text-based” work on limitations and exceptions for libraries. Ultimately, the Chair of SCCR released the conclusions as a Chair’s document, rather than as the agreement of the WIPO member states. Because WIPO operates on the basis of consensus, a single country or group can block action at WIPO, including for example, blocking adoption of conclusions or agreement to hold a diplomatic conference. By blocking the conclusions, the EU has potentially made it more difficult to move forward on work on limitations and exceptions at SCCR.
A live webcast of this week’s SCCR, as well as meeting documents, is available here. Additional coverage of SCCR is available here.