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

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

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

Library Preservation

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

Relationship Between Section 108 and Fair Use

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

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

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

Orphan Works

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

HathiTrust

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

Orphan Works/Mass Digitization Roundtables: Copyright and Fair Use Myths and Realities

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.

Recap of the Copyright Office’s Roundtables on Orphan Works and Mass Digitization

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.

Conclusion

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.

Library Copyright Alliance (LCA) Comments on EU Consultation on Copyright Rules

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.

Fair Use Gaining Popularity: Australian Law Reform Commission Proposes Fair Use, Prohibition Against Contracting Out of Specific Copyright Exceptions for Libraries

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.

Fair Use

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.”

Contracting Out

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.

FCC Chairman Wheeler Issues Net Neutrality Statement, Calls for Public Comment

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.”

The Day We Fight Back: NSA Reform Bills To End Mass Surveillance and Provide Greater Transparency

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.

Observations from House Judiciary Committee Hearing on Surveillance and FISA Reforms

On February 4, 2014, the House Judiciary Committee held a hearing on “Examining Recommendations to Reform FISA Authorities.” The written testimony of the six witnesses and the statement of Chairman Goodlatte (R-VA) are available here. Ranking Member Conyers’ (D-MI) opening statement is available here.

The witnesses were divided into two panels. The first panel included James Cole (Department of Justice), Peter Swire (President’s Review Group on Intelligence and Communications Technology), and David Medine (Privacy and Civil Liberties Oversight Board). The second panel included Steven Bradbury (Dechert, LLP), Dean Garfield (Information Technology Industry Council) and David Cole (Georgetown University Law Center). The vast majority of the time and questioning from Members of Congress was spent on the first panel.

The focus of the hearing was on Section 215 of the PATRIOT Act (the section known as the library records provision under which the NSA claimed authority to collect bulk data of telephone records; this provision could also be used to obtain other “business records” including library records). Some questions also covered the Section 702 program, which targets non-U.S. persons. The majority of the Committee members appeared to support reforms to the program, with numerous members pointing to their support for the USA FREEDOM Act. Several members also focused on the need to restore trust amongst the American people.

During opening statements, Chairman Goodlatte noted that President Obama had not articulated how the bulk collection of telephony metadata had thwarted terrorist plots. He also questioned the President’s proposal to transfer the storage of bulk data to private companies, pointing to recent security breaches of Target and Yahoo!.

Ranking Member Conyers called the Section 215 bulk collection program ineffective, inconsistent with American values and inconsistent with the statutory language. He pointed out that Section 215 of the PATRIOT Act is scheduled to sunset on June 1, 2015 and if the bulk collection issue is not addressed, the Government risks losing Section 215 in its entirety. Conyers praised H.R. 3361, the USA FREEDOM Act, which has 130 House Members supporting the bill with an even split between Democrats and Republicans (Senator Leahy introduced an identical bill in the Senate), a point reiterated by several other members of the Judiciary Committee. The bill, among other things, would amend Section 215 to prohibit bulk collection and require showing a nexus between the business records sought and the person targeted.

First Panel

James Cole, Deputy Attorney General at the U.S. Department of Justice (DOJ), statement focused on President Obama’s January 17, 2014 speech laying out proposed reforms, including having third party storage of the bulk data, establishing an independent voice before the FISA courts, and establishing greater transparency. He also argued that the bulk collection of telephony metadata was constitutional and permitted under the PATRIOT Act.

Several members questioned Cole regarding the value of the bulk collection of telephone data and the appropriate metric in assessing its benefits. He repeatedly asserted that the program was useful and that pointing to the number of terrorist plots thwarted was not an appropriate metric in assessing the value of the Section 215 program, though Cole did not provide an alternative metric other than to call the program “helpful.”

Peter Swire of the President’s Review Group (PRG) gave an overview of the makeup of the review group and the scope of their report. He noted that while the Privacy and Civil Liberties Oversight Board had done legal analysis around the statutory language of Section 215 and the First and Fourth Amendments, this analysis was not undertaken by the President’s Review Group.

In response to criticisms regarding the risks of permitting third parties to house the bulk data, particularly in light of security breaches, Swire pointed out that the NSA has had leaks and all databases are at risk. He also noted that telephone companies already collect the data and requiring them to store such data would not create any new harms.

David Medine, Chairman of the Privacy and Civil Liberties Oversight Board (PCLOB), gave an overview of the conclusions of the recently issued report on Section 215, noting that PCLOB would be issuing a separate report on Section 702 in the coming months. He pointed to the PCLOB’s majority conclusion that the Section 215 program violated the statutory parameters of the PATRIOT Act, but also raised serious concerns regarding the First and Fourth Amendments. He noted that the benefits of bulk collection were “modest at best” and such benefits were outweighed by the concerns regarding civil liberties and privacy. The Board recommended termination of the Section 215 bulk collection program.

Medine also pointed out that the Administration’s interpretation of Section 215 takes an overly expansive view of the term “relevant.” He noted that Congress intended to put limits on Section 215 when it was created, but that these limits were ignored with an interpretation that “relevant” covered everything.

Representative Sensenbrenner (R-WI) pointed out that he was the principal author of the PATRIOT Act as well as its two reauthorizations (Sensenbrenner also introduced the USA FREEDOM Act into the House) and that the revelations about how Section 215 was being used were a shock, a sentiment later echoed by Representative Lofgren (D-CA). Sensenbrenner asserted that there was no way that the PATRIOT Act, as interpreted by the Administration, would have been approved or reauthorized if debated in Congress and that no fair reading of the Act could support the bulk collection of telephony metadata. When Cole stated that the DOJ had not taken a position on the USA Freedom Act, Sensenbrenner suggested that the DOJ quickly take a position because the Government is faced with a choice between the USA Freedom Act or having no authority when June 1, 2015 comes around and Section 215 expires. These sentiments were echoed by Representative Nadler (D-NY)

Representative Bachus (R-AL) seemed to be one of the few Committee members that did not want to see changes made to the program. He cited a letter by Judge John Bates, which expressed concerns in allowing a public advocate participate in FISA Court hearings.

Representative Lofgren (D-CA) asked what data, other than telephone data, could be collected. She asked whether credit card information or Internet browser cookies could be collected. Cole argued that not everything could be collected, only what was “necessary.”

Both Lofgren and Representative Issa (R-CA) asked whether the telephony metadata of Members of Congress had been collected. Swire said that to his knowledge, nothing had been screened out. Cole agreed that there was no reason to think otherwise, but argued that because the data had been collected into a database did not mean that it had been looked at. Issa also asked whether telephony metadata of the Executive Branch, including the President’s, as well as the records of the numerous embassies in the United States, had also been collected and Cole stated that he believed every phone number’s metadata was included in the database.

Representative Poe (R-TX) asked Cole to name a criminal case that had been filed as a result of the metadata program. Cole stated that there may be one material support case, but argued that the point of the statute was not to pursue criminal cases but to gather foreign intelligence.

Second Panel:

Steven Bradbury, attorney at Dechert, LLP and former head of the Office of Legal Counsel at the DOJ, argued that the NSA programs did not violate any statutory or constitutional laws. He argued that numerous FISA court judges had upheld the programs. He also asserted that all Members of Congress were informed about or had the opportunity to be briefed on the details of the Section 215 and 702 programs during their reauthorizations. He stated that the programs were critically important and argued against any changes, expressing disappointment with President Obama’s proposals to reform the programs.

Dean Garfield, President and CEO of the Information Technology Industry Council, pointed to the impacts that the revelations about bulk collection of data have had on the information and communications technology sector. He stated that the revelations about the programs had eroded trust in U.S. companies and the security of the data they collect. He also warned that forcing localized storage could result in “Balkinization” of the Internet. He advocated for greater transparency and oversight, as well as clarification of what Section 215 permits.

Some members raised concerns about how U.S. companies could be disadvantaged globally as a result of the NSA revelations, a point on which Garfield agreed. He noted that concerns included cost, storage concerns, and the public lack of trust, including the perception that companies are not independent from the U.S. Government.

David Cole, Professor of Constitutional Law and National Security at Georgetown University Law Center, expressed support for the USA FREEDOM Act. He pointed out that because of evolving technology, privacy law must be adapted in light of the increased ease of collecting massive amounts of data. He also argued against defenders of the NSA collection practices by pointing out that the former NSA general counsel had stated that metadata can reveal an enormous amount about a person’s life and with enough metadata, content is unnecessary.

Chairman Goodlatte questioned Bradbury, pointing to concerns about privacy when bulk data is collected. Bradbury responded that there were hypothetical concerns about abuse, but these concerns did not match the reality of the programs. He also pointed out that the Securities and Exchange Commission, Federal Trade Commission and Consumer Financial Protection Bureau also collect massive amounts of data and that the NSA should not be singled out.

Lofgren raised concerns regarding the expectations of privacy in the modern world. In response, Cole stated that the defining question is how to preserve the right to privacy in the face of new technologies and that it was the responsibility of Congress to address these issues. He said that without Congressional action, there is a risk of surrendering privacy to the digital age.

Representative Nadler called the FISA court a “kangaroo court” because of its one-sided and secretive nature. He pointed out that while technology evolves and metadata is collected, people still have an expectation of privacy. Cole then pointed out that the metadata collection programs were the same as issuing a general warrant.

Observations from House Judiciary Subcommittee Hearing on Fair Use

The House Judiciary Committee Subcommittee on Courts, Intellectual Property and the Internet continued its copyright review and held another hearing on Tuesday, January 28th. This hearing focused exclusively on the scope of fair use and the Library Copyright Alliance (LCA) submitted a written statement in advance of the hearing.

Fair use, originally a common law doctrine, is codified under Section 107 of the Copyright Act and permits reproduction and other uses of copyrighted works for purposes such as criticism, comment, news reporting, teaching, scholarship and research. The statute includes four factors for consideration, including the character of the use, the nature of the work, the amount used in proportion to the whole, and the impact on the market for the work. Failure to meet all four criteria, however, does not bar a finding of fair use. Fair use is flexible and determinations for qualification under this doctrine are made on a case-by-case. Many of the statements made during the hearing, as well as the questions from Members, focused on the first factor, in particular the proper interpretation and application of whether a use has been “transformative.”

The hearing included five witnesses: Professor Peter Jaszi (American University); Professor June Besek (Columbia University); Naomi Novik (Author and co-founder of Organization for Transformative Works); David Lowery (Singer/Songwriter and Lecturer, University of Georgia); Kurt Wimmer (General Counsel of the Newspaper Association of America). For the most part, the witnesses did not recommend any statutory changes to Section 107 of the Copyright Act, even when they did not agree with particular court rulings regarding fair use. All witnesses seemed to agree that the courts are in the best position to determine whether a use is fair. Below are some brief observations from the hearing.

Testimony from Witnesses

Professor Peter Jaszi spoke first and gave background to the fair use doctrine, noting that the “transformative use” test was considered “unified field theory.” He also spoke on how courts have applied fair use in ways that both foster future innovation and serve the public interest. He suggested that, despite criticisms to the contrary, the jurisprudence on fair use is fairly predictable and coherent. He opposed reform to fair use, but suggested that the doctrine could use support, such as through changes in the statutory damage regime.

Professor June Besek went next and argued that fair use has been expanding. She criticized the application of fair use that has allowed new business models, rather than just new works of authorship. She suggested that “transformative use” has caused confusion with derivative works and argued that the pendulum has moved too far in the direction of the users.

Naomi Novik spoke next, beginning with her background as a New York Times bestselling author who, prior to writing her first novel, wrote fan-fiction and was a remix artist. She analogized fan-fiction to telling stories around a campfire. She also argued that licensing is unrealistic for both the writers of fan-fiction as well as the original authors because of the time, money and legal concerns. She suggested that Congress should lower damages in order to make fair use less frightening for the everyday person. She also proposed an exemption for non-commercial uses, such as those telling their stories around a metaphorical campfire.

David Lowery, a singer/songwriter, followed and clearly stated that fair use is working for the music industry. He raised concerns, however, about two particular areas where he felt that there were efforts to expand fair use to uses he did not think were covered under the statute. These areas include remixing and lyric websites. He noted that some music genres, such as hip hop, continue to flourish under licensing and fair use need not be expanded to promote these works. He also asserted that lyric websites that include annotations of the lyrics are not fair use and argued that it is not hard to ask for permission.

Kurt Wimmer, the final witness on the panel, serves as general counsel of the Newspaper Association of America. He noted that newspapers are rightholders, but also are reliant on fair use. He noted that while he does not agree with every fair use decision, the courts are in the best position to make these determinations. He expressed some concerns about the breadth of recent court decisions regarding transformative uses, but cited his support for the Swatch v. Bloomberg case that came down in favor of Bloomberg’s fair use argument just the day prior.

Questions From Members

Following witness statements, several Members posed questions to the witnesses. These questions covered a wide range of issues, including, among others, how to define “transformative,” whether exporting the doctrine of fair use to other countries is appropriate, and whether fair use is currently working for all groups.

Conclusion

In general, it seemed that all witnesses agreed that the fair use doctrine should continue to be interpreted and applied by the courts and the proposed solutions to perceived areas of concerns could be done outside the scope of Section 107 (such as recalibration of damages). Although there was some disagreement between witnesses over whether particular uses would, or should, qualify as fair use, the witnesses agreed on the importance of this doctrine.

Fair use, of course, has been of critical importance in supporting libraries’ key functions and allowing it to serve its patrons. Although specific limitations and exceptions exist elsewhere in the Copyright Act, many of which libraries frequently use, fair use allows libraries to act where these specific exceptions are too narrowly drawn, where no exceptions exist, or when technological advances outpace the law. Although the Members at the hearing seemed to take a keen interest in fair use, given the testimony of witnesses, hopefully Congress will agree that fair use generally works well.

LCA Statement on House Judiciary Hearing on Scope of Fair Use

On Tuesday, January 28, 2014, the House Judiciary Subcommittee on Courts, Intellectual Property, and the Internet held another hearing on copyright review. This hearing focused on the scope of fair use and included five witnesses: Professor Peter Jaszi (American University); Professor June Besek (Columbia University); Naomi Novik (Author and co-founder of Organization for Transformative Works); David Lowery (Singer/Songwriter and Lecturer, University of Georgia); Kurt Wimmer (General Counsel of the Newspaper Association of America).

Fair use, originally a common law doctrine, is codified under Section 107 of the Copyright Act and permits reproduction and other uses of copyrighted works for purposes such as criticism, comment, news reporting, teaching, scholarship and research. The statute includes four factors for consideration, including the character of the use, the nature of the work, the amount used in proportion to the whole, and the impact on the market for the work. Failure to meet all four criteria, however, does not bar a finding of fair use. Fair use is flexible and determinations for qualification under this doctrine are made on a case-by-case.

In advance of the hearing, the Library Copyright Alliance (LCA) submitted a written statement discussing how libraries rely on fair use in order to serve their users and meet their mission; how the federal government relies on fair use for photocopying and in the patent examination process; and how rights-holders rely on fair use in developing new works. The statement concludes that no changes are needed to the fair use doctrine.

Fair Use and Libraries

The LCA statement begins by noting the numerous areas where fair use allows libraries to achieve their missions and serve library patrons, including “the preservation of and providing access to our cultural, historical, local and scientific heritage; supporting and encouraging research, education, literacy and lifelong learning; and providing a venue for community engagement on a host of issues.” The statement recognizes fair use as “the most important limitation on the rights of the copyright owner – the most important ‘safety valve’ of U.S. copyright law for the public.”

Giving a few specific examples, the LCA statement first points to the importance of fair use for mass digitization of works, including for purposes of creating full-text searches, preservation, and providing access to users with disabilities. Libraries also rely on fair use to ensure digital preservation and provide tailored access programs to orphan works, those works where it is difficult or impossible to identify and locate the rightholder. Fair use also permits libraries to improve accessibility for person who are visually impaired or have other disabilities.

The statement also explains that the “Code of Best Practices in Fair Use for Academic and Research Libraries,” has identified eight situations where the library community has expressed a consensus regarding acceptable practices for fair use in these circumstances:

Supporting teaching and learning with access to library materials via digital technologies; using selections form collection materials to publicize a library’s activities, or to create physical and virtual exhibitions; digitizing to preserve at-risk items; creating digital collections of archival and special collections materials; reproducing materials for use by disabled students, faculty, staff and other appropriate users; maintaining the integrity of works deposited in institutional repositories; creating databases to facilitate non-consumptive research uses (including search); and collecting material posted on the world wide web and making it available.

Fair Use and the U.S. Government

The LCA statement points out that libraries are not the only entities that rely on fair use and federal agencies have relied on this doctrine in the patent examination process and for photocopying materials. A 2012 opinion issued by the general counsel of the U.S. Patent and Trademark Office (USPTO) concluded that copying and distribution of non-patent literature for use in providing those copies to applicants during the examination process; providing entire copies of the patent histories to the public; and applicants copying non-patent literature for submission to the USPTO were all covered by fair use. Similarly, a 1999 opinion issued at the request of the Department of Commerce noted that fair use was a critical component in supporting the constitutional rationale of copyright. It found that the public interest could be advanced through the use of government photocopying and was therefore relevant to the fair use inquiry. It cautioned the Department of Commerce and other federal agencies against negotiating license deals to permit photocopying where such photocopying was covered by fair use and therefore not infringing.

Fair Use and Rights-Holders

In addition to libraries and the federal government, content producers and rights-holders also rely on fair use. As noted in the LCA statement, two recent cases where infringement suits were brought against rights-holders, these rights-holders asserted that fair use was critical in promoting the progress of science and protecting the First Amendment.

In Bouchat v. Baltimore Ravens, for example, the Fourth Circuit found that “Fair use …is crucial to the exchange of opinions and ideas. It protects filmmakers and documentarians from the inevitable chilling effects of allowing an artist too much control over the dissemination of his or her work for historical purposes.” Furthermore, in its amici brief, film associations noted the importance of fair use in the creation of new content, noting that “Much creative culture is iterative; new works often do not arise in a vacuum, but rather are influenced by and draw upon the creative works that came before. As the Supreme Court held in Campbell, highly transformative works lie at the heart of fair use’s protection: they are the new expression that copyright law is meant to promote.”

Similarly, the LCA statement points to the case White v. West Publishing, where large publishers relied on fair use after creating a database product calling the doctrine a “necessary tool to further the goals of copyright law.”

Conclusion

The LCA statement recommends against changes to Section 107 of the Copyright Act, noting that the fair use doctrine has been successfully relied upon by diverse constituencies, including libraries, students, teachers, government agencies, patent applicants, artists and media companies.