Tag Archives: 108

Why is the Copyright Office Trying to Reform Section 108?

On July 26, the Library Copyright Alliance (LCA) met with the Copyright Office, in response to the Office’s Notice of Inquiry, to give our views on Section 108—namely, LCA’s opposition to amendment. LCA previously released a statement, consistent with previous documents and statements, expressing deep concern over efforts to reform Section 108. As LCA noted in its most recent statement on Section 108, the library community opposes reform of this section because: 1) Section 108 is not obsolete; 2) fair use provides a sufficient update when necessary; 3) amending Section 108 has inherent risks and could limit what libraries currently do today, including the possibility of affecting fair use; 4) amendment of this section would be highly contentious and a time and resource intensive process.

LCA opened the meeting by reiterating our opposition to reform of Section 108, expanding on the points made in the written statement. Many libraries similarly voiced opposition to Section 108 reform during their meetings with the Copyright Office. Given that the vast majority of the community benefiting from the exception does not want to see Section 108 amended, it is disconcerting that the Copyright Office is planning to go ahead with a recommendation to reform this provision of the Copyright Act. Archives, the other beneficiaries of Section 108, have also voiced opposition to Section 108 reform (see: Society of American Archivists and the Internet Archive statements and blog posts). Given that beneficiaries of this provision oppose any updates to Section 108, that—according to those who actually rely on the provision on a daily basis—Section 108 is not obsolete and continues to function well forty years after its enactment, on what basis is the Copyright Office going forward with its recommendation?

When LCA met with the Copyright Office, we were given two answers. The first, the Copyright Office said, is to add museums as a beneficiary to Section 108, a recommendation made by the Section 108 Study Group. The Copyright Office argued that as a potential beneficiary, museums were strong advocates for reform. The second reason was decidedly less persuasive. Supposedly, authors who benefit from library access and are therefore beneficiaries of Section 108 have advocated for amendment to this provision. While authors may certainly be affected by the various limitations and exceptions under copyright law, it is doubtful that groups such as the Authors Guild want reform because of insufficient access to works under Section 108. Of course, because of the way the Copyright Office structured the process—requiring in person meetings or, if necessary, phone discussions—there is no written record.

One of the big complaints LCA has had about the current process is this utter lack of transparency regarding the meetings. LCA’s written statement noted, “LCA is concerned about the lack of transparency relating to this inquiry. LCA expects the Copyright Office to publish a list of the interested parties it meets in the course of this inquiry as well as a detailed summary of what each of these parties advised.” While the Copyright Office has agreed to release a list of everyone they have met with regarding Section 108 reform, it will not be issuing a summary of what was discussed in those meetings. The lack of substantive information regarding the topics of conversation and recommendations by various stakeholders is disappointing. We will not know the substance of the reforms proposed by stakeholders. While authors may indeed be pushing for 108 reform, as the Copyright Office stated in LCA’s meeting, whether it is because they find a lack of access to works in libraries (as the Copyright Office implied) or because they want to restrict library activity (as the Authors Guild certainly tried to do as evidenced by their lawsuit and briefs in its litigation against HathiTrust) cannot be confirmed.

Furthermore, without a written record, comments made during the meeting may be misunderstood. LCA did, for example, discuss some substantive changes to 108 that might be beneficial while trying to reiterate opposition to reform. However, could the Copyright Office construe it as support for reform? Could the Copyright Office issue a legislative proposal and state that the Library Copyright Alliance was supportive of certain concepts, such as contract preemption (a provision which would specify that contracts cannot override limitations and exceptions), and therefore supportive of reform? Hopefully, the Copyright Office will be upfront in any recommendation it makes by putting its proposal in the proper context, explaining that stakeholders have differing approaches and positions with respect to 108 reform efforts.

Ultimately, it seems like a waste of time to put in so much effort to try to reform a section of the copyright law that is actually functioning pretty well. Contrary to the Copyright Office’s repeated assertions that Section 108 is “obsolete,” libraries rely on this provision every day to make preservation copies, to replace items in older formats, to engage in inter-library loan, to reproduce copies for patrons, and more. Copyright Office resources would be better spent addressing areas of copyright that are in greater need of reform, like Section 1201 and the incredibly burdensome process by which one must go through to request an exemption (which the Copyright Office is indeed reviewing), statutory damages, or truly outdated sections of the Copyright Act that refer to things like coin-operated equipment and players (a comment brought up by Jonathan Band during LCA’s meeting).

What’s next? Instead of focusing on the areas in true need of reform or sections that are obsolete, the Copyright Office is pushing forward with a proposal to reform a functioning section of the law. The Copyright Office noted that it was wrapping up its meetings with stakeholders and that it was unlikely to solicit any written comments. The Copyright Office stated that it would prepare a legislative recommendation to be released in the fall or winter. ARL and LCA will carefully review the proposal once it is released. Ultimately, however, the inherent risks in reforming Section 108 are unlikely to outweigh what may be modest benefits in an update to a section of the copyright act that is actually working.

For Further Reading: TechDirt recently released a great post explaining, “Copyright Office Intent on Changing The Part of Copyright That Protects Libraries & Archives, Even Though No One Wants it Changed.”

Library Copyright Alliance files amicus in HathiTrust case

Last night the Library Copyright Alliance filed its amicus brief (PDF) in support of HathiTrust and its partners as they defend their district court victory on appeal in the Second Circuit.

In a powerful brief, LCA counsel Jonathan Band explains that the HathiTrust Digital Library’s digitization of over 10 million books for preservation, non-consumptive research, and accessibility is lawful; indeed, it is a research tool of world-historical significance that the court should welcome. The brief makes three core arguments:

  • the Hathitrust project is a fair use consistent with library best practices

  • the specific exceptions favoring libraries do not preempt fair use, and

  • libraries are “authorized entities” who can make accessible books available to the print disabled under the Chafee Amendment.

In the process, it responds to the Authors Guild’s extraordinarily crabbed reading of the Copyright Act, which would make basic library activities illegal and treat print disabled patrons as second class citizens.

Notes from Register Pallante’s “The Next Great Copyright Act”

By Greg Cram, Rights Clearance Analyst, The New York Public Library

On March 4, 2013, Maria Pallante, the 12th United States Register of Copyrights, delivered “The Next Great Copyright Act” at Columbia Law School. In the lecture, Register Pallante reflected on the history of other major comprehensive revisions to United States copyright law. She argued that the time has come for the next general revision to begin by noting the complexity of current copyright law and its failure, in some areas, to stay current. She highlighted the work the Copyright Office has already undertaken in preparation for the next act, including reports on Digital First Sale, Orphan Works, Pre-1972 Sound Recordings, Mass Digitization, and others. Finally, she laid out a number of issues that are on the table for consideration in the next round of comprehensive revision.

The content of the next comprehensive copyright act is important to libraries and library patrons. Copyright law impacts library services at all levels, from the basics of making unsupervised copiers available to patrons to the complicated digitization of works in library collections. In the lecture, Register Pallante highlighted a few issues important to libraries, including the first sale doctrine, the libraries and archives exception, the blind and print disabled exception, and the length of copyright protection. The next copyright act is certain to implicate many library services, not to mention the general flow of content in modern society.

Because of the importance of this lecture, I am sharing my notes below. The lecture was recorded, but is not yet available on the Kernochan Center’s website. I strongly recommend watching the recording when it is available. I labored to take accurate notes and do not intend to misrepresent the content of the lecture. Even with my diligence, these notes should not be understood to be an official record or transcript of the lecture.

My notes on “The Next Great Copyright Act”

The next comprehensive review should begin soon. A comprehensive review is needed for two main reasons. First, courts are asking Congress to fix copyright law (see, e.g., Golan, Google Books, Tenenbaum). Second, more people need help navigating a complex law and shouldn’t and army of lawyers to understand copyright law.

There should be two main themes for the next great copyright act. First, it should be forward thinking, but flexible. Second, authors’ rights to enjoy control and exploit works needs to be meaningful. Authors are not the counterweight to the public interest because protecting authors is in the public interest. A copyright act that did not protect authors would be illogical. But, the law needs to recognize that some authors are different by giving weight to Creative Commons licenses and public domain declarations.

The issues on the table for the next comprehensive review include:

  1. Incidental Copies

    —Not all copies are the same

    —Perhaps there could be discrete exceptions for certain incidental copies

    —For more information on this issue, see the Copyright Offices 2001 study on the Digital Millennium Copyright Act

  2. Public Performance Right for Sound Recordings

    —Copyright Office is a “strong supporter” of a public performance right for sound recordings

    —Disparities between terrestrial radio and internet radio royalty rates are hampering new business models

  3. Stronger Enforcement

    —The new law must respect the integrity of the internet, including free speech

    —There needs to be, however, a mix of legislative and voluntary efforts to combat infringement online

    —On solution may be to increase criminal penalties for streaming, or at least bring them in line with the penalties for distribution through downloads

  4. Small Claims

    —The Copyright Office is studying this issue

    —Small claims may be a way for rights holders to enforce rights when federal litigation may be too expensive

    —The Copyright Office could, potentially, take a lead role in administering small claims

  5. Statutory Damages

    —Review registration requirements

    —Look at statutory damages from all angles

    —Statutory damages are important part of copyright act and should be retained

    —Need to provide guidance to courts about how statutory damages should be applied

  6. The Digital Millennium Copyright Act

    —The Internet has evolved since DMCA passage in 1998

    —Congress should review the § 512 safe harbors

    —Congress also needs to review § 1201 rulemaking, especially in light of the White House response to a petition on unlocking mobile phones

  7. Registration and Deposit of Published Works

    —The deposit requirements for registration should remain in next copyright act

    —Congress should review the legal incentives for registration

    —How can the Library of Congress add born digital works to its collection through this process?

    —The policies surrounding mandatory deposit should not be driven by the collection building activities of the Library of Congress (see the ACCORD Report for more information)

  8. First Sale

    —Digital first sale will be an issue on the table

    —Physical first sale may also need to be reviewed, depending on the outcome of the Kirtsaeng v. John Wiley & Sons case currently before the Supreme Court

  9. Other Exceptions/Limitations

    —The libraries and archives exception in § 108 should be updated

    —Update exceptions for the blind and print disabled in § 121 for the digital world

    —Explore new exception for higher education institutions

    —Personal space-shifting

  10. Licensing

    —Need to review growth of licensing schemes

    —Review mechanical licenses

Now the “bold” issues:

  1. Term of 50 years, renewable for an additional 20

    —The Supreme Court decision in Golan v. Holder is last word on whether life plus 70 years is constitutional

    —However, the term of copyright protection could be modified to 50 years after the death of the author, renewable for another 20 years

    —This would put the burden on the copyright owner to renew copyright term at the end of 50 years after death

    —Modeled after § 108(h), something the Copyright Office is very fond of

    —This proposal would be acceptable under various international treaties, including the Berne Convention

  2. Opt-Out v. Opt-In

    —Extended collective licensing could potentially solve many problems

Finally, Congress should expand the role of the Copyright Office. The Office could help to resolve questions of law or fact through advisory opinions. The Office could also help to establish best practices on a number of topics, including searching for copyright owners. If an extended collective licensing scheme is devised by Congress, then the Office could provide transparency to that system.


NYU Video At Risk Guidelines for Section 108 (c) Preservation

Thoughts on the Copyright Office’s Priorities for 2011-2013

The Copyright Office (CO) announced its priorities for the next two years yesterday, including several items of interest to research libraries. This blog post will walk through some of the highlights; the full document is here.

Report on Mass Digitization Coming (Very) Soon

Of all the goals outlined in the CO’s report, the one with the shortest time horizon is a preliminary analysis of the issues surrounding large-scale book digitization. The CO indicates that its analysis will be posted sometime in October 2011 (i.e., in the next few days).

As the CO’s mass digitization site‘s current contents show, this work is an outgrowth of the Google Books litigation, in which the CO was a highly visible participant. Then-Register Marybeth Peters may have coined the most oft-repeated phrase in the oral arguments when she described the proposed “opt-out” settlement as “turning copyright on its head.” Peters has continued her work in support of “opt-in” solutions in her retirement, taking a position on the Board of Directors of the Copyright Clearance Center.

Mass digitization presents a host of unique problems that have not been addressed in previous efforts to sort out smaller-scale uses of library materials, especially orphan works. The one-at-a-time diligence that past orphan proposals have envisioned simply do not scale to the thousand- or million-volume level.

The CO says its analysis will include an evaluation of various solutions based in collective licensing (voluntary, collective, extended, and statutory). Recent conflicts in Canada, a close look at Norway’s regime, proposals in Europe, and a look at our own statutory licensing regimes for satellite TV all suggest that these types of solution can have significant disadvantages for libraries. It will be interesting to see what the CO makes of these issues.

Section 108, again.

In 2008, a study group comprised of representatives from the rights holder communities as well as libraries, archives, museums and other user groups issued a Report on the many shortcomings of the current specific exception for libraries and archives. While the Report expressed a consensus that Section 108 had not kept pace with the changing needs of beneficiary institutions (e.g., it does not deal adequately with needs associated with ‘born-digital’ works), the consensus did not reach many specific recommendations for changing the statute. Parties simply could not agree. The CO suggests that the Google Books litigation was also a factor.

The CO says it will “formulate a discussion document and preliminary recommendations” on the issues raised by the 108 Report. Given the failure of the stakeholders to come to consensus, we should watch closely to see how the CO resolves the tensions surrounding this important issue.

Orphans, still.

Another issue raised by the Google litigation, and by the new lawsuit against HathiTrust and its library partners, is the fate of ‘orphan works.’ ARL has worked with other stakeholders, including the CO, to find an acceptable legislative solution to this issue, but those negotiations left off in Congress at the very limit of what would be feasible for libraries. It is not clear that revisiting this issue in the legislative arena will give libraries a solution that is preferable to the strong fair use arguments already available to support library projects. Indeed, members of the Legal Issues workstream of the Digital Public Library of America reported at last week’s plenary that even its ambitious plans don’t include pushing for legislative change, as it makes more sense to work with what we have than to gamble that Congress will improve things.

The CO has already issued a comprehensive report on this issue, and legislative language already exists, so the CO is wise to refrain from announcing any specific work product on this question. Instead, they will “continue to provide analysis and support to Congress.”

Other issues

  • The CO is in the midst of its triennial DMCA rulemaking, in which it considers classes of works that should be exempt from the digital locks provisions of the Digital Millennium Copyright Act. In the past, these exceptions have focused on uses in academic settings, and ARL will continue to work to support useful rules in this area.

  • The CO will be issuing its report on Pre-1972 Sound Recordings in December. In our comments on this issue, ARL has asked the CO to highlight fair use.

  • The CO mentions that it has weighed in on the issue of “Rogue Websites,” without specifically endorsing the approaches that have been taken by the bills introduced on the issue. There are significant free speech concerns associated with those bills.

  • The CO highlights its work to digitize and make accessible its records of copyright registrations. This is an important corollary to the orphan works and mass digitization problems, as it would make it much easier for libraries to determine whether and when copyright terms might have expired.

What Libraries Need In Copyright Reform

Today the Library Copyright Alliance released a statement describing the key features copyright reform proposals should include in order to constitute significant improvement over current law for libraries and their users. In the wake of the recent rejection of the Google Books settlement, interested parties are discussing with renewed vigor the issues of orphan works, mass digitization, and even modernization of Section 108 of the Copyright Act. The LCA statement, which represents the needs of major library stakeholders in these debates, should provide helpful guideposts for these discussions.

Libraries have always advocated for reasonable copyright policy, in courts as well as in Congress, and the LCA welcomes renewed interest in these issues in response to Judge Chin’s decision. At the same time, library activities already benefit from broad, flexible protection under the fair use doctrine and related provisions in current law. Therefore, only a clear improvement over the status quo is worth the substantial investment and risk associated with legislative change. The LCA statement describes the status quo for libraries as well as the policies that would constitute substantial improvement.

The proposal focuses on exempting libraries from the draconian statutory damages currently available under copyright law. Together with a notice-and-takedown mechanism, this reduction in damages would free libraries to make policy decisions based on the true balance of equities between library use and rightsholder harm, rather than acting under the threat of damages awards out of all proportion to the typically negligible harm associated with library uses. While the future of copyright reform efforts is foggy at best, the LCA statement represents a clear articulation of what libraries need for reform to be worthwhile.