[House Hearing, 113 Congress]
[From the U.S. Government Publishing Office]
PRESERVATION AND REUSE OF
COPYRIGHTED WORKS
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON
COURTS, INTELLECTUAL PROPERTY,
AND THE INTERNET
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED THIRTEENTH CONGRESS
SECOND SESSION
__________
APRIL 2, 2014
__________
Serial No. 113-88
__________
Printed for the use of the Committee on the Judiciary
Available via the World Wide Web: http://judiciary.house.gov
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COMMITTEE ON THE JUDICIARY
BOB GOODLATTE, Virginia, Chairman
F. JAMES SENSENBRENNER, Jr., JOHN CONYERS, Jr., Michigan
Wisconsin JERROLD NADLER, New York
HOWARD COBLE, North Carolina ROBERT C. ``BOBBY'' SCOTT,
LAMAR SMITH, Texas Virginia
STEVE CHABOT, Ohio ZOE LOFGREN, California
SPENCER BACHUS, Alabama SHEILA JACKSON LEE, Texas
DARRELL E. ISSA, California STEVE COHEN, Tennessee
J. RANDY FORBES, Virginia HENRY C. ``HANK'' JOHNSON, Jr.,
STEVE KING, Iowa Georgia
TRENT FRANKS, Arizona PEDRO R. PIERLUISI, Puerto Rico
LOUIE GOHMERT, Texas JUDY CHU, California
JIM JORDAN, Ohio TED DEUTCH, Florida
TED POE, Texas LUIS V. GUTIERREZ, Illinois
JASON CHAFFETZ, Utah KAREN BASS, California
TOM MARINO, Pennsylvania CEDRIC RICHMOND, Louisiana
TREY GOWDY, South Carolina SUZAN DelBENE, Washington
RAUL LABRADOR, Idaho JOE GARCIA, Florida
BLAKE FARENTHOLD, Texas HAKEEM JEFFRIES, New York
GEORGE HOLDING, North Carolina DAVID N. CICILLINE, Rhode Island
DOUG COLLINS, Georgia
RON DeSANTIS, Florida
JASON T. SMITH, Missouri
[Vacant]
Shelley Husband, Chief of Staff & General Counsel
Perry Apelbaum, Minority Staff Director & Chief Counsel
------
Subcommittee on Courts, Intellectual Property, and the Internet
HOWARD COBLE, North Carolina, Chairman
TOM MARINO, Pennsylvania, Vice-Chairman
F. JAMES SENSENBRENNER, Jr., JERROLD NADLER, New York
Wisconsin JOHN CONYERS, Jr., Michigan
LAMAR SMITH, Texas JUDY CHU, California
STEVE CHABOT, Ohio TED DEUTCH, Florida
DARRELL E. ISSA, California KAREN BASS, California
TED POE, Texas CEDRIC RICHMOND, Louisiana
JASON CHAFFETZ, Utah SUZAN DelBENE, Washington
BLAKE FARENTHOLD, Texas HAKEEM JEFFRIES, New York
GEORGE HOLDING, North Carolina DAVID N. CICILLINE, Rhode Island
DOUG COLLINS, Georgia ZOE LOFGREN, California
RON DeSANTIS, Florida SHEILA JACKSON LEE, Texas
JASON T. SMITH, Missouri STEVE COHEN, Tennessee
[Vacant]
Joe Keeley, Chief Counsel
Heather Sawyer, Minority Counsel
C O N T E N T S
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APRIL 2, 2014
Page
OPENING STATEMENTS
The Honorable Howard Coble, a Representative in Congress from the
State of North Carolina, and Chairman, Subcommittee on Courts,
Intellectual Property, and the Internet........................ 1
The Honorable Jerrold Nadler, a Representative in Congress from
the State of New York, and Ranking Member, Subcommittee on
Courts, Intellectual Property, and the Internet................ 2
WITNESSES
Gregory Lukow, Chief, Packard Campus for Audio Visual
Conservation, Library of Congress
Oral Testimony................................................. 7
Prepared Statement............................................. 9
Richard S. Rudick, Co-Chair, Section 108 Study Group
Oral Testimony................................................. 25
Prepared Statement............................................. 27
James G. Neal, Vice President for Information Services and
University Librarian, Columbia University
Oral Testimony................................................. 32
Prepared Statement............................................. 34
Jan Constantine, General Counsel, The Authors Guild, Inc.
Oral Testimony................................................. 55
Prepared Statement............................................. 58
Michael C. Donaldson, Esq., Partner, Donaldson & Callif, LLP
Oral Testimony................................................. 78
Prepared Statement............................................. 80
Jeffrey Sedlik, Professor, President and Chief Executive Officer,
Plus Coalition
Oral Testimony................................................. 94
Prepared Statement............................................. 96
LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING
Material submitted by the Honorable Jerrold Nadler, a
Representative in Congress from the State of New York, and
Ranking Member, Subcommittee on Courts, Intellectual Property,
and the Internet............................................... 102
Material submitted by the Honorable Jerrold Nadler, a
Representative in Congress from the State of New York, and
Ranking Member, Subcommittee on Courts, Intellectual Property,
and the Internet, on behalf of the Honorable Judy Chu, a
Representative in Congress from the State of California, and
Member, Subcommittee on Courts, Intellectual Property, and the
Internet....................................................... 104
APPENDIX
Material Submitted for the Hearing Record
Supplemental Statement of James G. Neal, Vice President for
Information Services and University Librarian, Columbia
University..................................................... 120
Supplemental Statement of Michael C. Donaldson, Esq., Partner,
Donaldson & Callif, LLP........................................ 128
Prepared Statement of Allan Adler, General Counsel, Vice
President for Government Affairs, the Association of American
Publishers (AAP)............................................... 144
Prepared Statement of the Computer & Communications Industry
Association (CCIA)............................................. 164
Prepared Statement of Edward Hasbrouck for the National Writers
Union (UAW Local 1981, AFL-CIO)................................ 168
Prepared Statement of Marc Maurer, President, the National
Federation of the Blind........................................ 173
PRESERVATION AND REUSE OF COPYRIGHTED WORKS
----------
WEDNESDAY, APRIL 2, 2014
House of Representatives
Subcommittee on Courts, Intellectual Property,
and the Internet
Committee on the Judiciary
Washington, DC.
The Subcommittee met, pursuant to call, at 2:13 p.m., in
Room 2141, Rayburn Office Building, the Honorable Howard Coble
(Chairman of the Subcommittee) presiding.
Present: Representatives Coble, Goodlatte, Marino, Smith of
Texas, Chabot, Chaffetz, Holding, Collins, DeSantis, Smith of
Missouri, Nadler, Chu, Deutch, Richmond, DelBene, and Lofgren.
Staff present: (Majority) Joe Keeley, Chief Counsel; Tricia
White, Clerk; (Minority) Stephanie Moore, Minority Counsel;
Heather Sawyer, Counsel; and Jason Everett, Counsel.
Mr. Coble. Good afternoon, ladies and gentlemen. Welcome to
our hearing today on preservation and reuse.
Several of the witnesses have thanked me for letting you be
here. Thank you all for responding to our invitation to be with
us today. We are delighted to have a very distinguished panel.
American culture has been described as a key component of
our Nation's exports, not just from a financial perspective but
also as a demonstration of the creative ability of those who
live in a democracy with constitutional guarantees.
It should come as no surprise that as the Co-Chair of the
Creative Rights Caucus, along with the gentlelady from
California, Ms. Chu, I especially value the unique creations of
American artists. The fact that some of these creations can be
lost forever, due to an abandonment or outright deterioration,
is a loss for our society. I welcome efforts to preserve our
Nation's cultural history.
As some of you may know, I am an ardent advocate of blue
grass music. Despite my support, I recognize that blue grass
may not be the most popular music available to Americans, and
we can disagree agreeably about that. But blue grass is a part
of the culture of my State, and I do not want that culture to
be lost with time. So I am pleased to learn of efforts like
those at the Library of Congress and elsewhere to preserve our
Nation's culture for future generations.
Clearly, there are those who have raised questions that
some efforts claiming to focus on preservation may, in fact, be
neglecting the rights of copyright owners who still exist and
could potentially be located with minimal effort. I am sure we
will hear about that later today.
Several years ago, the Subcommittee spent a fair amount of
time on the orphan works issue. While I do not wish to repeat
that investment of time here this afternoon, I do want to hear
more about the other issues of section 108, the role of
libraries and museums, as well as mass digitization. That word
throws me every time.
In closing, we welcome our many eminently qualified
panelists, as I have said before. Thank you for taking time
from your respective business schedules to join us today. We
look forward to hearing from you subsequently.
And I am now pleased to recognize the distinguished
gentleman from New York, the Ranking Member, Mr. Jerry Nadler,
for an opening statement.
Mr. Nadler. Thank you, Mr. Chairman.
Today we examine whether existing law adequately allows for
the preservation and reuse of copyrighted works with
appropriate protections for content creators and other rights
holders. This topic touches on a broad range of interrelated
issues, including the existing exception contained in section
108 of the Copyright Act that allows limited unauthorized
reproduction of copyrighted works by libraries and archives,
and how the existence of orphan works complicates preservation
and reuse.
Ensuring the preservation of creative works is
unquestionably important. Our libraries, archives, and museums
have always played a critical role in compiling and preserving
this Nation's rich cultural and historical heritage, and we all
want to ensure that they have the tools necessary to continue
their important work.
At the same time, and as our copyright law appropriately
reflects, authors, artists, and other creators have the
exclusive right to control and exploit their works. Our goal is
to ensure that we strike the right balance.
Recognizing the unique public service mission served by
libraries and archives, Congress first enacted section 108 in
1976, allowing these entities a limited exception for
preservation, replacement, and research purposes long before
technological innovations made it possible to make digital
copies of analog works on a mass scale, a process otherwise
known as mass digitization. And while orphan works legislation
has previously been considered by Congress, these proposals
like the relatively minor adjustments made to section 108
through the Digital Millennium Copyright Act of 1998 did not
directly grapple with mass digitization.
This hearing, thus, allows us to revisit preservation and
reuse issues in light of the considerable technological changes
that have taken place in the last few years.
As a starting point for this discussion, I am interested in
hearing from our witnesses regarding what parts of the
recommendations issued by the Copyright Office Section 108
Study Group remain relevant today and whether further studies
or adjustments might be warranted.
I am similarly interested in hearing whether the existence
of orphan works, commonly understood to be copyrighted works
whose owners cannot be identified or located making it
impossible to negotiate terms for their use, remains a problem
and, if so, how we should address it.
Recent litigation over mass digitization seems to confirm
the need for a solution. Those cases involve a public-private
partnership between Google and HathiTrust to digitize the
library collections of several universities. In the case
brought by the Authors Guild against Google, the District Court
Judge recognized that orphan works remain ``a matter more
suited for Congress than this court.'' As the judge explained,
``the questions of who should be entrusted with guardianship
over orphan books, under what terms, and with what safeguards
are matters more appropriately decided by Congress than through
an agreement among private self-interested parties.''
Ongoing uncertainty regarding how to deal with orphan works
also played a part in a related case brought by the Authors
Guild against HathiTrust where the inability of several
universities to create a procedure that accurately identified
orphan works resulted in suspension of efforts to digitize
these works. This would seem to confirm that orphan works
continue to be a problem in need of a solution, and I look
forward to hearing from our witnesses on what we should do.
To the extent that some of you may feel that congressional
action is not needed, what are other workable options,
particularly in response to judicial requests for congressional
action?
Mass digitization may pose a similar dilemma. Some
stakeholders may take the view that no action is needed, while
others may firmly believe that this issue should be addressed.
There are unquestionable benefits to be gained from mass
digitization in certain circumstances. For example,
digitization allows print-disabled individuals unprecedented
access to books that enables them to compete on equal footing
with their sighted peers. It may also enhance the ability to
collect and preserve fragile or out-of-production works. At the
same time, bulk digitization involves millions of copyrighted
works, some of which are orphan works, and raises complex
questions about protections for creators of these works and
other rights holders.
Congress has afforded libraries and archives special
privileges in the Copyright Act in recognition of the unique
and critical role they play in capturing and preserving the
Nation's rich history. Rules sought and potentially created by
and for these institutions may be appropriate for other users
for uses of copyrighted works. Mass digitization also presents
new and different opportunities and risks related to online
access to copyrighted works that raise critical and complicated
questions that are not presented by analog copies.
These are just a few of the many issues that we will begin
grappling with today. As we do so, we should take note of the
Copyright Office's ongoing review of orphan works and mass
digitization. That process, which started with a Notice of
Inquiry in 2012 and included 2 days of public roundtables just
last month, will provide useful guidance. I look forward to
reviewing the Copyright Office's recommendations.
In the meantime, our witnesses provide a diversity of
perspectives and a wide range of experience, and I look forward
to hearing from them today.
With that, I thank the Chairman again, and I yield back the
balance of my time.
Mr. Coble. I thank the gentleman.
Without objection, opening statements of other Members will
be entered into the record.
I will ask the witnesses, if you will, to please rise and
raise your right hand. We traditionally swear in our witnesses.
[Witnesses sworn.]
Mr. Coble. Thank you. You may be seated.
Let the record show that each of the witnesses responded in
the affirmative.
Ms. Chu, you want to introduce the last witness. Right?
Ms. Chu. Yes.
Mr. Coble. All right.
For the third time, I want to say how distinguished the
panel before us is, and we appreciate your being here.
You will see two clocks on your table. The green light--you
may go full ahead. When the light turns amber, that is your
warning that you are running out of time and you will have 1
minute at that point. If you can wrap up on or about 5 minutes,
that would be appreciated. You will not be severely punished if
you fail to do that, but we try to keep within the 5-minute
range up at this table as well.
Our first witness today is Mr. Gregory Lukow, Chief of the
Audio Visual Conservation Center at the Library of Congress,
located at the Packard Campus in Culpepper, Virginia. Mr. Lukow
has been with the Library of Congress for over a dozen years,
overseeing the development of the Packard Campus and its
preservation programs. Mr. Lukow received his degree in
Broadcast Journalism and English from the University of
Nebraska and his M.A. in Film and Television Study from UCLA.
And I am sure, Mr. Lukow, you are an ardent Husker fan, I
suspect. There was no great risk, I assumed, in saying that.
Our second witness is Mr. Richard Rudick, Co-Chair of the
Section 108 Study Group. Mr. Rudick retired from John Wiley and
Sons, where he served for 26 years, including as senior Vice
President and General Counsel. Mr. Rudick received his J.D.
from the Yale School of Law and is a graduate of Middlebury
College. Mr. Rudick, good to have you with us.
Our third witness is Mr. James Neal, Vice President for
Information Services and University Librarian at Columbia
University. Mr. Neal oversees 22 libraries at Columbia and has
participated in a wide range of professional roles in the
library community, including the Section 108 Study Group. Mr.
Neal received his B.A. in Russian Studies at Rutgers and his
two masters degrees in History and Library Science from
Columbia.
Our fourth witness is Ms. Jan Constantine, General Counsel
of the Authors Guild since 2005. Ms. Constantine is responsible
for representing the interests of the Authors Guild in all
legal matters. Ms. Constantine received a B.A. from Smith
College and is a graduate of George Washington University's
National Law Center.
Our fifth witness is Mr. Michael Donaldson, partner at
Donaldson & Callif, LLP. Mr. Donaldson is the former President
and board member of the International Documentary Association
where he was an advocate for the interests of documentarians.
Mr. Donaldson earned his Bachelor of Science degree from the
University of Florida and his J.D. from the University of
California at Berkeley.
I am now pleased to recognize the distinguished lady from
California who has asked permission to introduce our sixth and
final witness.
Ms. Chu. Thank you, Mr. Chairman.
I have the pleasure of introducing Professor Jeffrey
Sedlik, who is the President and CEO of PLUS Coalition, a
nonprofit that seeks to connect images to rights holders and
rights information. He is also an educator at the Art Center
College of Design in Pasadena, California, and the City of
Pasadena is in my district. In addition, I am delighted to say
that Professor Sedlik is my constituent. Thank you, Professor
Sedlik, for testifying today and representing the voices of
independent visual artists.
Mr. Coble. I thank the gentlelady.
Mr. Nadler. Mr. Chairman?
Mr. Coble. Yes, sir.
Mr. Nadler. Could I simply give a special welcome to Mr.
Neal since he represents Columbia, and I am a proud alumnus of
Columbia, as is my son, and since the last reapportionment, it
is now in my district, so I want to give a special welcome.
Mr. Coble. This has no relevance to today's hearing, but I
will be very brief in sharing it with you.
I was invited to address a group at the Columbia School of
Law some recent years ago, and I had to decline, first, because
there were scheduled votes on the House Floor that night. That
was altered and then the House votes were in fact--I declined
the invitation because we thought there were going to be House
votes. There were House votes. I declined. And the lady said to
me, ``Well, we have already printed the invitations and your
name is on the invitation.'' I said, ``I will miss the vote and
I will be at Columbia,'' which I did.
The next day when I returned to the House Floor, I went to
the Speaker who was in the chair, and I said, ``May I explain
how I would have voted had I been here last evening?'' He says,
``Why were you not here?'' And, in a condescending tone, I
said, ``I was delivering a lecture at the Columbia School of
Law.'' [Laughter.]
He said, ``Have they lost their minds?'' [Laughter.]
So with that, Mr. Lukow, why do you not kick us off?
Mr. Lukow has requested that we show a little over 2
minutes, I think 2 minutes and 15 seconds, of video which I
think is in order, and we will do that now.
[Video shown.]
Mr. Coble. Mr. Lukow, I would like to some day visit the
Culpepper Campus, but we can talk to you about that
subsequently. But thank you for making this available to us.
Prior to hearing from our witnesses, I have noticed that
the Chairman of the Judiciary Committee has arrived, and I am
pleased to recognize the distinguished gentleman from Virginia,
Mr. Goodlatte, for his opening statement.
Chairman Goodlatte. Well, thank you very much, Mr.
Chairman, for holding this hearing and for your forbearance.
This afternoon, the Subcommittee will hear about the
preservation and reuse of copyrighted works. This issue is
becoming a more urgent issue for American culture as
copyrighted works deteriorate with age. Last spring, I visited
the Packard Campus of the Library of Congress in Culpepper,
Virginia and witnessed firsthand not only the depth of our
Nation's great cultural history, but also the preservation
challenges caused by the passage of time. I encourage all the
Members of the Committee--it is not that great a distance out
to Culpepper, and it is a fascinating experience. So, I commend
it to you, and hope Members will get out there, along with the
Chairman.
The head of this facility is testifying this afternoon, and
he has brought with him some examples of the deterioration
caused by age and poor storage conditions.
In the 1976 Copyright Act, Congress included several
provisions in section 108 to address preservation and reuse
issues. However, like many of the 1976 provisions, section 108
is woefully outdated for the digital age.
In 2005, the Library of Congress and the Copyright Office
convened a group of experts to make recommendations on updating
section 108. Two of the participants in the Section 108 Study
Group are testifying today. As they will no doubt highlight,
agreement was reached on some, but not all, potential updates.
Recently some have suggested that instead of updating
section 108 for the digital age, preservation activities should
be covered by the fair use provisions of section 107. While it
is probably true that there are clear-cut cases in which fair
use would apply to preservation activities, fair use is not
always easy to determine, even to those with large legal
budgets. Those with smaller legal budgets or a simple desire to
focus their limited resources on preservation may prefer to
have better statutory guidance than exists today.
Another issue we will look at today is how to best allow
access to works that may have been abandoned. In 2006 and 2008,
this Committee considered orphan works legislation, and the
Senate passed similar legislation in 2008 by a voice vote. In a
sign of how quickly technology and business models advance,
since then a coalition of photographers, visual artists, and
potential orphan works users have worked together to develop a
technology platform to better enable the connection of
copyright owners of potential orphan works with those
interested in using them.
In addition, none of the earlier legislation addressed the
mass digitization issue. At a minimum, Congress needs to ensure
that any legislative activity in this area can accommodate such
rapid progress.
So I look forward to hearing more about these and other
preservation and reuse issues from our witnesses. I welcome all
of you today. And I yield back to the Chairman.
Mr. Coble. I thank the Chairman.
Mr. Lukow, we will start with you. Again, if you all can
keep a sharp lookout on the clocks, we will be appreciative.
You are recognized, sir.
TESTIMONY OF GREGORY LUKOW, CHIEF, PACKARD CAMPUS FOR AUDIO
VISUAL CONSERVATION, LIBRARY OF CONGRESS
Mr. Lukow. Thank you. Thank you, Chairman Goodlatte,
Chairman Coble, Ranking Member Nadler, and the Members of the
Subcommittee. I appreciate very much the opportunity to
participate in today's hearing on preservation and reuse of
copyrighted works.
As Chief of the Library of Congress Packard Campus for
Audio Visual Conservation, this statement will necessarily
focus on challenges facing the Library's audiovisual
collections, and those samples that both Chairman Goodlatte and
Chairman Coble mentioned of deteriorating media are sitting up
there. I think you will appreciate the fact that they are up
there because if we handed them around, they would probably
fall apart in your hands.
However, the issues raised by this timely hearing,
including orphan works, section 108, and mass digitization,
profoundly impact the Library's ongoing attempts to acquire,
preserve, and make available the American cultural record
contained in the 158 million items in all their varied formats
and collections at the Library.
Though we have made great progress in preserving
substantial parts of our collections, thanks to the support of
the U.S. Congress and the American public, we face numerous
formidable impediments in making this content available for
research and scholarship. Copyright law restricts libraries'
abilities both to preserve collections, especially sound
recordings and audiovisual works, and to provide access to
preserved works.
We face a cruel irony. The promising advent of digital
technologies has enabled us to preserve vastly more of this
heritage for the long-term future, but the promise is often not
fully realized because the public cannot access much of this
content beyond the controlled environment of our Washington,
D.C. reference centers. Much of the vast film, television,
radio, and broadcasting and recorded sound materials in our
collections have been out of print for decades and are, in
effect, orphaned works in that the companies that own rights to
these materials do not currently make them available to the
public from lack of commercial incentive to do so, absent of
business models, or other reasons.
Our statement focuses not only on orphan works, whose
status results from ownership questions, but also on what we
call these ``marketplace orphans.'' Although such marketplace
orphans have little or no commercial value to their rights
holders, many are of great historic, cultural, or aesthetic
value to scholars, educators, and the general public. Examples
include films from the silent era and thousands of educational,
independent, avant-garde, and amateur motion pictures, early
television and radio broadcasts, especially local productions,
and sound recordings of all types, including ethnic recordings,
monaural classical music, operatic recordings, poetry, and
other spoken word recordings.
The Library recommends three priorities for statutory
change.
First, modernize section 108 so the libraries and archives
can fulfill their mission to preserve audiovisual and other
materials. Several parts of section 108 do not apply to
audiovisual materials. As a result, these items do not enjoy
the certain valuable preservation and access exceptions
expressly granted to other works. Section 108 needs to be
updated for the digital age with language applicable to all
formats.
In addition, subsection 108(c), which was designed to help
libraries and archives preserve their materials, in reality
only allows these institutions to preserve materials already
damaged or in a state of deterioration. In order to preserve
fragile, at-risk audiovisual materials, the Library must be
able to legally make copies of materials before they are
damaged or deteriorating.
Our second recommendation: expressly address the orphan
works issue in copyright law. Our inability thus far to solve
this issue is a key factor leading to the unavailability of
countless parts of our moving image and recorded sound
heritage. We need a common-sense, compromise legislative
solution to this vexing problem.
And third, and by no means least, federalize pre-1972 sound
recordings. Given the historical development of U.S. copyright
law, these works have never been brought under Federal
copyright protection. This anomaly creates many vexing
preservation, access, and rights issues as the works are
covered by common law or a myriad of disparate State laws. Pre-
1972 sound recordings must be brought under the Federal
copyright regime, a recommendation that was voiced in the U.S.
Copyright Office's 2011 report on this topic.
With that, I will conclude my remarks. I will refer you to
my written testimony for a number of examples of these kinds of
categories of orphan works or marketplace orphans.
And you all, indeed, have a standing invitation to visit
the Packard Campus. I hope you will do so. Thank you very much.
[The prepared statement of Mr. Lukow follows:]
__________
Mr. Coble. Thank you, Mr. Lukow.
Mr. Rudick?
TESTIMONY OF RICHARD S. RUDICK, CO-CHAIR,
SECTION 108 STUDY GROUP
Mr. Rudick. Distinguished Chairman Coble and Goodlatte,
Ranking Member Nadler, and Members, thank you for this
invitation.
As you know already, I address you as Co-Chair of the
Section 108 Study Group convened by the Library of Congress to
recommend changes in that section of the 1976 act which was
enacted when the photocopy machine was the hot, new technology
that challenged copyright. Half of our members came from the
library, archives, and museum community, and half from the
content and creative community.
These two communities are part of a larger community, held
by common bonds, driven in part by common goals, and bedeviled
by similar challenges. In the end, we both serve the public
interest by making accessible art, literature, and science. We
both face serious economic challenges, and we have both had to
redeploy our assets and revise our operations to deal with the
opportunities and challenges presented by new digital
technologies.
We are interdependent. Libraries are important customers of
content providers, and without the work of authors, artists,
publishers, and other media producers fueled by copyright,
libraries could no longer exist. This is a family quarrel.
In spite of these tensions by distinguishing between what
we needed and what we wanted and motivated by a deep-shared
common concern for the need for addressing digital preservation
issues, we were able to agree on a number of recommendations,
including the following: adding museums as eligible
institutions, allowing qualified institutions to copy digital
material for preservation whenever there is risk of loss or
disintegration without waiting for after it occurred, allowing
libraries and archives to preserve, reproduce, and make
available publicly available online content not restricted by
access controls such as websites.
With respect to mass digitization, after some discussion in
2005, we felt the time was not ripe. It is very ripe now in the
wake of HathiTrust and Google. I think we need legislation and
need to promote voluntary programs, including collective
licensing which could facilitate such projects both in the not-
for-profit and for-profit sectors.
The study group considered or discussed whether commercial
availability should be a factor for purposes of section 108, in
effect, providing different rules for works offered in commerce
and those either not intended for commercial use or no longer
available commercially. Since then, this concept has been
utilized or is being considered as a factor for various
purposes, for example, in the Google Books settlement, which
was rejected by the District Court in New York and in the
European Union. Whether in the revision of section 108 or in
possible legislation relating to mass digitization, I think we
should consider this concept carefully.
Libraries have come to rely heavily on fair use under
section 107, in part because of the inadequacies of 108 in the
digital era. But reliance on section 107 for purposes that go
far beyond those originally conceived or imagined invites, as
we have seen, expensive litigation with uncertain results. A
provision so dependent on balancing and analyzing individual
facts and circumstances in specific situations is not well
suited to the major projects typical of mass digitization, and
the doctrine of fair use does not begin to address many of
content owners' serious concerns such as security.
From a practical standpoint, as the study group pointed
out, an updated and balanced section 108 dealing with digital
issues would complement the flexibility of section 107 by
providing straightforward guidance, predictability, and clarity
in specific situations for working librarians and others.
Clarity is the handmaiden of certainty, and an important
function of the law is to provide rules which, if followed,
keep us out of trouble. Oliver Wendell Holmes, Jr. once
observed that, ``Certainty generally is illusion and repose is
not the destiny of man.'' Surely repose is not our destiny, and
it may be that absolute certainty is generally an illusion. But
a level of certainty is a prerequisite for doing business,
whether your business is that of a librarian, a teacher, or a
student, or that of a publisher, a writer, or an artist.
I appreciate the opportunity to speak to you on these
issues. I hope that legislation which facilitates the
preservation and reuse of copyrighted works will be enacted.
And if I have a few more minutes, I have read my good
friend Jim Neal's testimony, and I agree with much of what he
said. But he answers a question which I have been asking, which
is, ``Why do the library associations and the major libraries
not support an updated, all-dancing, and all-singing 108 to
deal with the digital world?'' And I think I see the answer,
which is there have been a number of lower court decisions that
support a very expansive view of fair use. I think that horse
is running well for them. But that is not how we should make
policy. That is Congress' job. And what we should do is
whatever we can to make life easier and better for working
librarians, consistent with the need to enable people who
scribble for a living to survive and thrive, and also
university presses and other publishers. In the end, we have to
do what is right for the American people, and the hell with
what horse is ahead right now.
[The prepared statement of Mr. Rudick follows:]
__________
Mr. Coble. Thank you, Mr. Rudick.
Mr. Neal?
TESTIMONY OF JAMES G. NEAL, VICE PRESIDENT FOR INFORMATION
SERVICES AND UNIVERSITY LIBRARIAN, COLUMBIA UNIVERSITY
Mr. Neal. Chairman Coble, Ranking Member Nadler, Members of
the Subcommittee, thank you for this opportunity to testify
today. I am a working librarian.
I ask that my full statement be included in the record. It
has been endorsed by U.S. library associations.
I will address four issues: first, the importance of
library preservation; second, how the library exceptions in
section 108 of the Copyright Act supplement and do not supplant
the fair use right for important library activities such as
preservation; third, how changes in the legal landscape have
diminished our need for legislation concerning orphan works;
and finally, my perspective on the HathiTrust case.
My 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.
Before diving into copyright law, I would like to make
clear to the Subcommittee that libraries are not seeking a free
ride. U.S. libraries spend over $4 billion a year acquiring
books, films, sound recordings, and a variety of other
materials. Our objective is to maximize the benefit the
American people receive from this enormous investment that they
have made. We want to make sure that this material is
accessible to current and future generations of users.
Libraries think in terms of centuries, not quarterly royalty
reports.
First, the importance of preservation. Libraries engage in
preservation activities to prevent the loss of vital cultural,
historical, and scholarly resources. Much of this material
lacks commercial value and publishers may not have the
interest, the financial incentive, or the technical expertise
to engage in preservation activities.
At Columbia, there are vast collections that demand
preservation which may include shifting formats as technologies
become obsolete.
For example, the 9/11 oral history project focuses on the
aftermath of the destruction of the World Trade Center. This
project captured 900 hours of interviews recorded on digital
media.
Another example is our human rights archive that documents
the condition and progress of human rights around the world.
Columbia is making complete copies on an ongoing basis of more
than 600 websites from around the world. The archive contains
60 million pages, including many short-lived websites from
countries in conflict or with repressive governments.
In short, digital resources are not immortal. They are in
formats that are more likely to cease to exist and must be
transferred to new digital formats repeatedly as technology
evolves. This means that libraries require robust applications
of flexible application exceptions, such as fair use, so that
copyright technicalities do not interfere with our preservation
mission.
Second, section 108 and fair use. Section 108 has proven
essential to the library preservation function. The fact that
section 108 may reflect a pre-digital environment in our view
does not make it obsolete. It provides libraries and archives
with important certainty with respect to the activities it
covers. Like Dick Rudick, I was a member of that study group.
The report did not resolve many important issues such as orphan
works or mass digitization, nor did it propose statutory
language in areas where there was some agreement.
In addition to section 108, libraries rely upon fair use to
perform a wide range of other completely noncontroversial
practices. Libraries make preservation copies of musical works
and motion pictures, categories not covered by 108. School
libraries make multiple copies of appropriate portions of work
for classroom use, not covered under section 108. As Congress
made clear with the savings clause in section 108, it does not
limit the right of fair use.
Third, orphan works. The significant diversity of opinions
expressed to the Copyright Office in a Notice of Inquiry in
2013 and the recent roundtables indicate that it will be
extremely difficult to forge a consensus on best approaches to
resolve orphan works issues. Fortunately, fair use allows
libraries to appropriately preserve orphan works and make them
available appropriately to researchers and the public.
Fourth, the HathiTrust litigation. HathiTrust is a
consortium of libraries that preserves digitized works. There
are several uses of the Hathi database: preservation, searches
to identify where words or phrases appear, and full-text access
only for the print-disabled. I want to emphasize that only the
print-disabled have access to the full text of copyrighted
works in the HathiTrust repository. The central legal issue was
whether the copies made by Hathi were a fair use.
Finally, legislative recommendations. Updating section 108
in my view is not necessary, as is an orphan works amendment,
at least for the work of libraries. Other amendments may be
appropriate with respect to statutory damages, the coverage of
museums, contractual restrictions on copyright exceptions,
which is a fundamental issue for libraries, and broader
exceptions for people with disabilities.
Thank you, Mr. Chairman.
[The prepared statement of Mr. Neal follows:]
__________
Mr. Coble. Thank you, Mr. Neal.
Ms. Constantine?
TESTIMONY OF JAN CONSTANTINE, GENERAL COUNSEL,
THE AUTHORS GUILD, INC.
Ms. Constantine. Thank you, Chairman Coble, Ranking Member
Nadler--I would like equal time. I too am a constituent. So
thank you for all you do in New York--and Members of the
Subcommittee.
My name is Jan Constantine, and I am General Counsel for
the Authors Guild, the largest society of published authors in
the country. We have a 100-year history of contributing to
debates before Congress on the proper scope and function of
copyright law. It is an honor and a privilege to be here today
for the Authors Guild to continue to serve that role before
this Committee.
Mass digitization and orphan works are two issues that I
personally have spent the last 8 years grappling with. We have
two active, major lawsuits addressing these very topics, one
against Google and one against the HathiTrust, a consortium of
university libraries. In these two lawsuits, we are striving to
protect authors' rights to their works against institutions
vastly larger and more powerful than ourselves.
Google's chutzpah in offering libraries free e-books of
other people's property in exchange for access is truly
awesome. And once HathiTrust had possession of these e-book
editions of many of the world's copyrighted literary works, it
was awfully tempting to do something with them. So, HathiTrust
sidestepped Congress and started its own orphan works project.
This is not how it is supposed to be. Copyright is part of
our Constitution. It is vitally important to our culture.
Congress has carefully crafted rules for copying, including
detailed rules for library copying. Ad hoc approaches to things
as momentous as mass digitization of books or the distributing
of so-called orphan books is wildly inappropriate. To me, these
look more like exercises in eminent domain, Google or
HathiTrust versions of eminent domain. But at least with real
eminent domain, the property owner gets paid something.
We do not like suing libraries. We do not even like suing
Google--or maybe a little. [Laughter.]
But we have better things to do and these issues are not
best decided in the courtroom. These are major public policy
issues and Congress, particularly this Committee, should be
setting the rules.
One thing I have learned during these 8 years is that the
orphan works problem is vastly overstated, at least for books.
A book has all of its property owner information printed right
in it. The Copyright Office has all sorts of ownership
information through its registration system.
And HathiTrust's orphan works program quickly showed that
finding rights owners to so-called orphans can be a snap.
HathiTrust had an elaborate protocol for finding rights owners.
It did not work. But, we tried a different approach. We used
Google which, in spite of the chutzpah, is really quite handy,
and we were finding rights owners up, down, and sideways in
moments. People usually do not die without a trace, at least
authors of registered copyrights do not regularly die without
leaving some clue as to their heirs.
Take James Gould Cozzens, the Pulitzer Prize winning
novelist. He was on HathiTrust ``orphan row.'' That is what we
called their list of orphan books that it was getting ready to
distribute to 250,000 or so people. Free e-books, someone
else's property. And who was that someone else? Harvard
University. The Copyright Office says that Harvard was the
owner.
But I am not here to rehash the past. Let us talk
solutions.
We need a way forward that respects all stakeholders,
authors, publishers, libraries, and especially readers. So, we
are asking Congress to allow for the creation of a collective
rights licensing organization to deal with mass digitization
and orphan works. Collective licensing organizations such as
ASCAP and BMI make sense when there is a limited set of rights
to be licensed and it is too costly to ask individuals whether
a use is okay. If you run a radio station and want to broadcast
some music, it is impractical to contact every rights holder
for each day's playlist. So you get licenses from ASCAP and
BMI.
For mass digitization of books, one also needs a simple,
one-stop shopping solution. The benefits would be enormous and
pave the way for a true national digital library. This has to
be done carefully, however. The licensing would have to be
strictly limited in scope. Distributing print books or e-books
would not be part of the package. In-print books would not be
part of the package either. We should not be disrupting the
commercial market.
Instead, this is about displaying out-of-print books, and
there are millions of them in our Nation's libraries. We are
talking displaying, not downloading or distributing, displaying
books on computer screens. This is about providing access to
those books at every college, university, community college,
public school, and public library in the country so those
institutions could provide access to the vital communities they
serve. Every student could have a desktop access to a
collection as large as their State's university. It is a
``level the playing field'' game-changer, and authors would be
compensated for those uses, as they should, rather than being
brushed aside by those who should know better.
There are other important things that would go with
collective licensing. It would have to be non-compulsory. If an
author wants out, the author gets out. It is the author's
literary property after all. The author gets to say ``no.'' And
there would also have to be a referee, someone to go to if the
licensing organization and an institution cannot agree on a
reasonable fee. That is a feature of collective licensing
organizations around the world.
Outside of the U.S., collective licensing solutions for
books in particular have been met with great success.
In closing, I look forward to sitting down at the table
with other stakeholders, libraries, users, creators, and other
media, even Google. What the heck. This can be worked out. The
benefits are just too enormous to pass up. This is about
bringing our great research libraries to the desktops and
laptops of students and library patrons across the country. A
true digital library is within our grasp. We should go for it
now. And I think once we agree on the shape of the table, I am
sure we can get it done.
I would like to thank this Committee for holding this
hearing and inviting us to participate, and I refer you to my
written testimony. Thank you very much.
[The prepared statement of Ms. Constantine follows:]
__________
Mr. Coble. Thank you, Ms. Constantine.
Mr. Donaldson, I recognize Mr. Lukow's football Huskers. I
failed to mention your basketball Gaitors. For that, I want to
make sure that I apologize. I now recognize you.
TESTIMONY OF MICHAEL C. DONALDSON, ESQ.,
PARTNER, DONALDSON & CALLIF, LLP
Mr. Donaldson. My name is Michael Donaldson, representing
documentary filmmakers and independent filmmakers really across
the country.
I know this is not the sexiest thing on your agenda, so I
want to also thank you for just showing up today because this
is an incredibly important issue, particularly to documentary
filmmakers. Our office worked on over 170 documentaries in the
last 12 months. Only half a dozen of them escaped without
facing the frustration of orphan works, something that can
genuinely not be found after a very serious effort.
Take, for instance, William Saunders who is making a
documentary about his 89-year-old grandfather, a seminal
songwriter in the country-western field in the 1960's with
recordings by Dean Martin and Tommy Lee Jones and Johnny Cash.
His songs were sold to publishers. Those publishers are now out
of business. His grandson, with tremendous motive and
tremendous effort, has not been able to find who the rights
holders are on his grandfather's own songs. So his documentary,
which should have richly embraced his grandfather's music, is
having to rely on fair use, which means he can use bits and
pieces but not what he would like to use to make this
documentary about his grandfather be all it could be.
It is also an even bigger problem for feature filmmakers
who do not have a fair use workaround. The UCLA film and
television archive, which is second only to the Library of
Congress in its size, has some 200,000 titles in its archive of
feature films. Of those, over 10,000 are orphans. With all the
facilities of UCLA, they were not able to find the authors,
that is, the copyright owners, of these 10,000 films. So they
are only available for research, which means that these
wonderful stories that somebody thought was worth saving,
collectors and archivists, are not available for the retelling
or for making sequels. These are 10,000 untold stories, and if
you match them up with what is in the Library of Congress, you
easily get into six figures, and maybe seven, but I defer to
the Librarian for that.
It also affects television. A wonderful series a few years
back called Fallen Angels--every episode was based on the
writings of one of those wonderful film noire writers like
Dashiell Hammett or Raymond Chandler or Mickey Spillane, but
also on some lesser known writers. And the producer of that
television series found many, many stories in pulp magazines
and old books that they wanted to make into a television
episode. They could not because there is no fair use
workaround, and if you do not have the underlying rights to
those books and articles, you cannot make a derivative work
from them.
So what is the solution? The path out of this very
frustrating forest of problems for independent filmmakers and
documentarians is a substantial search, and I by that mean a
genuine substantial search which obviously would include a
Google search and a lot of other things. If they make a
substantial search and the owner comes up later, they should
get an immediate payment of a reasonable license fee. If the
search was not substantial, if they did not use Google or some
of the other tools available like PLUS, which is emerging, then
the copyright owner has the full panoply of ability to go after
statutory damages, an injunction, the whole panoply of remedies
that is available currently.
We are opposed for films to have any kind of a collective
bargaining because what happens is what happened in Canada. I
mean, they have collected what, $70,000 in 12 years and nobody
showed up to collect it? So you have this money sort of sitting
there without any real benefit to anybody except the
bureaucracy that set it up.
We are immensely hopeful that this Committee moves forward
with a legislative solution for the orphan works problem.
Thank you again.
[The prepared statement of Mr. Donaldson follows:]
__________
Mr. Coble. Thank you, Mr. Donaldson.
Mr. Sedlik?
TESTIMONY OF JEFFREY SEDLIK, PROFESSOR, PRESIDENT AND CHIEF
EXECUTIVE OFFICER, PLUS COALITION
Mr. Sedlik. Chairman Goodlatte, Chairman Coble, Ranking
Member Nadler, Members of the Subcommittee, thank you for the
opportunity to testify today on the preservation and reuse of
copyrighted works.
Chairman Goodlatte, thank you for referring to PLUS and
praising our efforts in your opening statements.
And, Congresswoman Chu, thank you very much for the
personal introduction.
In addition to my role as President and CEO of the
nonprofit PLUS Coalition, I am a professional photographer with
30 years of experience. I am also an educator, having served
for 20 years as a professor at the Art Center College of Design
in Pasadena, California.
While much of the public discussion and debate on copyright
issues focuses on big business, we must not forget that
copyright is the engine of free expression for independent
visual creators and other authors and that licensing the use
and reuse of their copyrights, as provided under title 17, is
typically the only means by which such creators are able to
support themselves and their families and to afford to create
new works for the ultimate benefit of the public.
Despite the significant ongoing efforts of visual artists
to protect their works by appending identifying information to
each new work prior to distribution, this information is often
lost or removed upon distribution of the works. With
instantaneous worldwide distribution of images occurring upon
first publication, millions of newly orphaned images are
injected into the global ecosystem on a daily basis. As a
result, publishers, museums, libraries, researchers,
documentary filmmakers, and the public dedicate considerable
time and resources to attempts to identify and contact rights
holders in order to seek permission to make use of visual
works, often in significant quantities.
With demand for visual content increasing exponentially,
many organizations now face the daunting challenge of managing
millions of visual works. At that scale, the management of
image rights seems an impossible challenge, but solving this
challenge is entirely possible. In the not too distant past,
there were no bar codes on any product in any store. There were
no ISBN's in any book on any shelf. These and other
standardized, persistent identification systems are now
ubiquitous, providing instantaneous global access to that vital
information and successfully serving as the backbone for
commerce and other activities.
The lack of a similar identification system for visual
works is at the root of many of the most significant challenges
faced by image creators, publishers, the public, and the
cultural heritage community. By employing persistent
identifiers, in combination with image recognition
technologies, in a system of interconnected registries, we can
provide instantaneous automated global access to image rights
information.
At the suggestion of the Copyright Office, the PLUS
Coalition was founded in 2004 as a multi-stakeholder initiative
charged with addressing this challenge. A nonpartisan,
industry-neutral, nonprofit organization, PLUS is operated by
and for all communities engaged in creating, distributing,
using, and preserving images. Members of the coalition include
publishers, museums, libraries, educational institutions,
advertising agencies, design firms, photographers,
illustrators, stock photo libraries, standards bodies, and
other interested parties spanning 117 countries. This diverse
spectrum of stakeholder communities has established common
ground by jointly founding and operating the PLUS Coalition as
a vehicle for intense collaboration on a tightly focused
mission to connect images to rights holders and rights
information on a global scale.
This Committee has consistently reminded and encouraged
stakeholder communities to cooperate in addressing and
resolving the ever-present challenges at the nexus of copyright
and technology. I am glad to report to the Committee that the
PLUS Coalition, after 10 years of success, is a real-world
example of the remarkable progress that can be achieved by
stakeholder cooperation.
Toward that success, the PLUS Coalition first established a
system of standards facilitating the identification of rights
holders and the communication and management of image copyright
information. Essentially, the PLUS standards provide the
equivalent of a UPC or bar code system for visual works.
With the global rights language in place, we are now
developing the PLUS Registry at PLUSregistry.org as a
nonprofit, international hub for image rights information,
connecting all registries in all countries. Using the PLUS
Registry, anyone in any country will be able to instantly
identify the creator, rights holder, and descriptive
information associated with any registered visual work, even in
the event that the work was distributed many years ago and
bears no identifying information.
Museums and libraries and archives will use the PLUS
Registry to facilitate preservation and to maximize public
access. Creators and other image rights holders will use the
PLUS Registry to ensure that they can be easily found and
contacted by anyone seeking information about their visual
works. Publishers and other businesses will use the PLUS
Registry to identify and contact image rights holders and to
manage image rights associated with vast quantities of works.
Search engines will use the PLUS Registry to automate rights
management and to allow individuals and businesses to make
informed decisions about using visual works.
Persistent attribution is not only the key to ensuring the
survival of independent visual artists, but is vital to the
success of all rights holders and distributors engaged in
licensing the use and reuse of visual works. Importantly,
persistent attribution, in combination with fair use and other
exceptions, is also the key to ensuring that museums,
libraries, and archives are best able to preserve visual works
and to maximize public access to our cultural heritage.
Thank you for your time and consideration. I look forward
to taking your questions.
[The prepared statement of Mr. Sedlik follows:]
__________
Mr. Coble. Thank you, Mr. Sedlik. Thanks to each of you.
We try to apply the 5-minute rule to ourselves. So if you
could make your responses as terse or as brief, at the same
time responding to the question, we would appreciate that.
Mr. Lukow, what are the most important changes that need to
be made to update section 108 for purposes of preservation and
reuse of copyrighted works?
Mr. Lukow. Well, we would certainly like all pre-1972 sound
recordings federalized and, therefore, along with other
audiovisual works, brought under all paragraphs of section 108.
We would like section 108 to allow us to provide copies to
researchers for audiovisual and sound recording materials. We
would like it to allow us to preserve materials in order to
save them for future generations before they are visibly
deteriorating. Those three things alone are at the heart of
what we are looking for from section 108.
Mr. Coble. I thank you for that response.
Mr. Neal, is there hope for users and owners to be able to
agree on how orphan works and mass digitization efforts should
be treated under the law?
Mr. Neal. I believe that there are many opportunities for
the user community and the content community to work together.
I want to emphasize that the largest digital collection that
exists in every library in this country is the material that we
license and purchase from publishers and vendors. A very small
percentage of our digital collections represent materials that
we have converted, we have digitized, or that we have captured
as born digital information. I think there are many
opportunities from us to learn from each other, as we did in
the 108 Study Group process, and to build the right
understandings and working relationships that allow me as a
librarian to make content available to my students and my
faculty in responsible and appropriate ways.
Mr. Coble. I thank you, sir.
Mr. Sedlik, I have consistently supported photographers.
How have their business models been altered by digitization for
photographers? Are they flourishing or still adapting to the
digital age?
Mr. Sedlik. Chairman Coble, the photographers are still
adapting to the digital age and making their best efforts to
identify their works. The most challenging aspect of being a
photographer today is ensuring that your works are identifiable
after they leave your hands. If we can achieve that, the
photographers will be able to make a living from their creative
works during their copyright life and society will benefit to
the maximum.
Mr. Coble. Thank you, sir.
Ms. Constantine, should a revision of section 108 include
specific provisions for orphan works or mass digitization, or
should orphan works and mass digitization be covered by
different provisions of law?
Ms. Constantine. We would think that if our solution,
collective licensing, was implemented and that there was money
to be had for the uses, then that would be a solution.
With respect to section 108 and mass digitization, it was,
as my testimony references, not--it was addressed to some
extent with respect to the technology of photocopying way back
in the 1960's at the hearings, and mass digitization was not
taken into account in the current law but it was anticipated,
and I think that 108 covers it adequately now. But I do think
that a collective licensing solution would be the best solution
for both orphan works and for mass digitization.
Mr. Coble. I thank you for that.
Mr. Rudick, I have time for one more question, and you will
be my clean-up hitter. Do you want to add anything generally?
Mr. Rudick. Your question was what?
Mr. Coble. I said I have time for one more question, and I
will call on you to be clean-up hitter. Do you want to add
anything generally?
Mr. Rudick. Yes. With respect to the question that Jan just
answered, section 108 only applies to libraries, archives, and
I hope someday museums. Orphan work issues and mass
digitization issues go beyond libraries. There are for-profit
mass digitization programs. And many of us have orphan work
problems, including authors and publishers, because we are
diligent about clearing rights and sometimes we have trouble
doing that. So I think those should be handled separately from
section 108.
And with respect to the collective licensing, there is an
effective voluntary collective licensing program in the United
States, which is the Copyright Clearance Center. It does not
cover all types of works. It focuses on literary works, and it
is voluntary. But it exists.
Mr. Coble. Thank you, sir.
I see my red light has illuminated.
I recognize the gentleman from New York, Mr. Nadler.
Mr. Nadler. Thank you.
First of all, let me begin by asking unanimous consent to
submit a statement from the Writers Guild of America for the
record and also a statement of the Copyright Alliance, which my
colleague, Representative Chu, wanted to make sure was part of
the record.
Mr. Coble. Without objection.
[The information follows:]
__________
__________
Mr. Coble. And I will remind the witnesses the record will
remain open for 5 days. So nobody is holding a stop watch on
you.
Mr. Nadler?
Mr. Nadler. Thank you.
As a loyal Columbia alumnus, I will start with Mr. Neal.
Mr. Neal, Mr. Rudick and Ms. Constantine suggest exploring the
possibility of some sort of collective licensing agreement. I
think I just heard Mr. Rudick say that that exists already. And
the Copyright Office is currently exploring that.
What is your view of this approach, and might it be worth
exploring for orphan works and for mass digitization?
Mr. Neal. I do not think that a volunteer collective
licensing program is what we want and need.
Mr. Nadler. Because?
Mr. Neal. It would not solve the orphan works problem in my
view because I question whether many of the rights holders
would, in fact, emerge to opt in. I also worry whether
libraries and other users would often end up paying for things
that would be appropriate to use for free under fair use.
Collecting societies sometimes in this country and sometimes
outside the United States have problematic track records, and I
would be concerned.
Mr. Nadler. Ms. Constantine, could you comment on that? The
same question.
Ms. Constantine. I disagree. I think even Mr. Neal and I
could sit around the table and craft something that would be
workable.
The problem is--and we found this in the Google settlement.
I think it is true that if you have something of value to
somebody, they will step forward. So I think an orphan who has
visions of some kind of compensation will be easy to find.
And we have an affiliated organization in our Authors Guild
called the Authors Registry. It was founded in 1995. And we
have paid over $20 million. Last year, we distributed $2.8
million, and we are the payment agent for two foreign rights
organizations from the UK and one from the Netherlands. And we
distribute secondary royalties, royalties for photocopying,
broadcast, library lending, and it works. It has been
successful. And we did a survey and our success rate is better
than 80 percent. So we are able to find orphans. If there is
money, they will come.
Mr. Nadler. Thank you.
Mr. Rudick, do you want to comment on that briefly before
my next question?
Mr. Rudick. It is wrong to think of, I think, collective
licensing as a total solution to anything. It is a tool that
you use----
Mr. Nadler. It could be a partial solution.
Mr. Rudick. Sorry?
Mr. Nadler. It could be a partial solution.
Mr. Rudick. It is a partial solution. It is a tool that
helps.
With respect to orphan works, I have always liked the 2008
Senate bill. I think that answers our needs. I do not think you
need, for orphan works, an elaborate scheme such as collective
licensing.
With respect to mass digitization, again collective
licensing is a tool.
I think what we need is legislation that addresses some of
the issues that the courts are trying to address, and of
course, that are working their way through the courts.
Mr. Nadler. Got it. Thank you.
Mr. Lukow, in your written testimony, you note the desire
to increase offsite access to the Packard Campus' collection.
In discussing offsite access in his written testimony, Mr.
Rudick noted that, ``Without safeguards to ensure that
electronic copies are available only to authorized users,
remote access would amount potentially to broad unauthorized,
uncompensated distribution of copyrighted content.'' And that
is a real concern.
Is it possible to ensure sufficient security?
Mr. Lukow. Yes. The private companies, record companies,
film studios, and online resources of audiovisual material have
mechanisms for making access to these materials available to
consumers. Those technologies are available. We think that they
can be deployed under section 108 for archives and libraries as
well.
Mr. Nadler. Thank you. And to the extent that increased
offsite access is developed through case law under a fair use
approach, would sufficient safeguards develop?
Mr. Lukow. We want fair use and section 108, both
absolutely at our----
Mr. Nadler. So I assume your answer is no without the
section 108.
Mr. Lukow. I am getting a little lost in the question. We
definitely want to continue to rely and revise 108 and fair
use.
Mr. Nadler. And I would ask Mr. Rudick the same question on
the last point. To the extent that increased offsite access
developed through case law under a fair use approach, would
sufficient safeguards develop?
Mr. Rudick. I had a little trouble following the question.
Mr. Nadler. To the extent that increased offsite access is
developed through case law under a fair use approach, will
sufficient safeguards develop?
Mr. Rudick. I think that case law is not a very good way to
address that issue. It is much better and simpler and easier, I
think, to address it through legislation. And in our report, we
noted that for many types of libraries, the question of remote
access could be dealt with. What you look for is a defined user
group. The hardest problem to solve--and it is a hard problem
to solve--is the public library. But I do not think it is
impossible to solve it.
Mr. Nadler. My time has expired. Thank you.
Mr. Coble. I thank the gentleman.
The distinguished gentleman from Pennsylvania, Mr. Marino.
Mr. Marino. Thank you, Chairman.
Good afternoon, lady and gentlemen. Thanks for being here.
I want to get right to an issue here, and I think you
danced around it a little but I did not quite get the gist of
what you were trying to say, or I could be wrong on this
totally. But when you hear my question, you will understand.
How are we going to pay for this? I would like each of you
to respond to that, if you would like to, starting with Mr.
Lukow.
Mr. Lukow. Each of us?
Mr. Marino. Yes. I mean, there is so much in there. We talk
about music. We are talking about films. We are talking about
documents. We are talking about papers. I am sure I am missing
so many other things. And there is no one that does not want to
see these items preserved, preserve our history--we learn from
it. We teach our children and our grandchildren about it. But
how are we going to pay for this restoration? How are we going
to pay for this process? We are $18 trillion in debt.
Mr. Lukow. We are grateful to the Congress and the American
people for having funded the creation of the Packard Campus, in
collaboration with our private sector partner, the Packard
Humanities Institute. It is a preservation factory. It
dramatically increased our preservation capabilities in some
cases by a power of 10. We preserve about 40,000 items every
year at the Packard Campus. So with continued support of annual
appropriations, we have years and years worth of work ahead of
us, but we are doing well.
Mr. Marino. But what if we come up with a way--and I am
asking you for recommendations on it--with a minimal or maybe
no support by the taxpayers? How do we do this? What do the
universities have to say? What do the individual entities have
to say about this, in addition to the Library of Congress? Your
budget is what? About $19 million a year?
Mr. Lukow. Yes, for the Packard Campus.
Mr. Marino. I imagine there are hundreds and hundreds of
millions of dollars worth of work that can be done out there.
Mr. Rudick and then down the line please.
Mr. Rudick. Well, if I understand the question, in terms of
paying for this, I think there is an opportunity for
collaboration between the private sector and the libraries with
respect to preservation. There is no need to do the same thing
twice. Fundamentally, preservation is a core library mission,
and I do not think you can rely on the private sector.
Mr. Marino. The libraries like to--and I agree with them.
They do not like to charge, and it is a public library. So how
are you tying the library into--you say the libraries should
start coming up with some type of fee?
Mr. Rudick. There is nothing in the 108 report that
suggested libraries should start charging for core library
functions. I am not sure I understand that question.
Mr. Marino. You answered it. I got it.
Mr. Neal?
Mr. Neal. Thank you for that question. I think it is
important to recognize that when we preserve through digital
technologies, we have the cost of digitizing the item. We have
the cost of creating the intellectual infrastructure. Let us
call it cataloging. There is the cost of the actual
intellectual cataloging metadata, and we have the long-term
storage of that digital object. We increasingly are allocating
funds out of our operating budget in order to be able to take
care of the resources that we receive, we purchase.
Mr. Marino. At Columbia.
Mr. Neal. At Columbia.
Mr. Marino. Okay. So you are doing that in and of your own
right.
Mr. Neal. Exactly, because we recognize that is a
fundamental part of our responsibility to my current faculty
and students and to future scholars and students who are going
to need that stuff.
Mr. Marino. How can we help, though? Columbia and the
universities are not going to be able to do this on their own
given the fact of the cost of education, the way that that is
going. I need recommendations. I need suggestions. We need
suggestions.
Mr. Neal. Well, I think public-private partnerships are
essential. We work, for example, with a large number of
publishers and vendors who we make these collections available.
They get a number of years in order to commercially make them
available for licensing purposes, and after a certain period of
time, 5 years or 10 years, then it is opened up for public
access and use.
Mr. Marino. I have a minute for three more responses, if
you would break it up.
Ms. Constantine. I just would add this is not my issue,
preservation. It is a creation of compensation for rights
holders. But I have an idea.
Google is reaping massive profits by its mass digitization
efforts. If we tax them for both creator compensation and
preservation efforts, them and others who are taking advantage
of all of the technological advances and content that they are
using and getting advertising revenues, that might be a way of
getting the answers to the libraries' questions.
Mr. Marino. Thank you.
Mr. Donaldson, you have about----
Mr. Donaldson. Of course, this is not my issue either, but
the cost issue is, which is one of the many reasons we are
opposed to setting up some sort of a registration when you plan
to use an orphan work or if you have used an orphan work. All
of these costs money that nobody is willing to come up with. So
we are against all those.
Mr. Marino. Mr. Sedlik, quickly please.
Mr. Sedlik. Congressman Marino, I would also bring up the
fact that there are hundreds of millions of works sitting in
the collections undigitized by individual artists. Illustrators
and painters, in particular, have a problem in digitizing their
works. These works have not yet been seen by the Library or by
any library. These are a record of our time. They are part of
the fabric of our cultural heritage, and the individual artists
are left with the burden of digitization.
Mr. Marino. Thank you.
I yield back.
Mr. Coble. I thank the gentleman.
The distinguished lady from California, I think, is next in
line. Ms. Lofgren?
Ms. Lofgren. Well, thank you very much. This has been a
very interesting session.
At the beginning, everybody introduced witnesses, but I did
not get to mention that David Packard, who was from my neck of
the woods, gave a major gift to the Library of Congress that
actually made the center possible. And so I think it is worth
thanking the Packard family and the Packard Foundation for that
very generous gift that helped make this happen.
You know, I was thinking back. Howard Berman and I decided
a number of years ago that we would solve together the orphan
works problem. And we engaged in discussions and we brought
people together. And what we found was that it was impossible
to do. Everybody was arguing with everyone else, and we could
not get everybody on the same page, even though I think
everybody was working in good faith. You would think it would
be easy to solve, and we found out it was not easy to solve.
And yet, it is still important.
So here is a question I have. Ms. Constantine, what you
have outlined is not exactly what we discussed, but it was
along those lines where you do a search and if you could not
find, then you could use. I mean, if the person owns a
copyright, they own it. So if they want to opt out, that is up
to them. They can make a deal separately. But if you cannot
find the owner, that is something else. You do not want to wall
off from the culture. And visual artists objected to that.
What is your take on Ms. Constantine's proposal, Mr.
Sedlik?
Mr. Sedlik. I think, first of all, PLUS is not an advocacy
organization.
Ms. Lofgren. No. I understand. But I am just interested in
your view.
Mr. Sedlik. I would say that you would find that the visual
artists felt threatened because of the inability to distinguish
between works that were older and works that were created 5
minutes ago. If I, as a photographer, create a work now and
wished to publish it, it is going to be stripped of its
identifying information and end up being circulated and used
and being orphaned.
Ms. Lofgren. It is not really orphaned. It is being
infringed.
Mr. Sedlik. Correct, correct.
And I think that this was the threat that the visual
artists perceived.
A couple of other issues that the visual artists had were
the inability to stop objectionable use. If their works, once
orphaned, were out there being used in a manner that was
counter to the beliefs of the creator and did not fall under
fair use, that was an issue.
Competitive use. Let us say one of my images ended up being
picked up by someone else who found it, did a diligent search,
did not find me, and begins making posters or some products
with my images. And then a violation of more of my exclusive
rights, meaning that--let us say I have an exclusive license
with one of my images to some party, and somebody else picks it
up as an orphan work and begins using it in a manner that
conflicts with my exclusive license.
The issue of being able to get all of my works into a
registry so that I could be found is going to take years,
hundreds of thousands of images per artist being either
digitized or brought into a registry.
The issue of reasonable compensation. Some works are more
rare than others, and this can become an issue.
Ms. Lofgren. I get the drift.
We even talked about eliminating the visual arts from the
orphan work proposal, and there was objection to that as well.
Do you object? If we were able to craft an orphan works scheme
that everybody else agreed to, but we excluded the visual arts,
would there be objection to that?
Mr. Sedlik. The photographer in me would have no objection
to that. However, the PLUS Coalition has the libraries, the
museums, the archives, the educational institutions, and these
works, should they actually be orphaned eventually, have
tremendous value to our society, and I do not know that we can
exclude visual works from the orphan works act. We might have
to treat them in a special manner.
Ms. Lofgren. My time is just about out. Just a couple of
observations.
One, the fair use doctrine is a court-created doctrine. It
always has been. It is not statutory. And I actually think we
are better off with that. It is created because of the First
Amendment. They do not have fair use in places that do not have
a constitution. And I just think our capacity to err greatly is
very high when it comes to that.
I do think there is an opportunity on the orphan works
thing. We have not discussed the issue of the term of copyright
which, of course, we extended dramatically with the Sonny Bono
Copyright Act. So, it is now basically a century and a half,
which is a very long time. And I think that to some extent,
that may be aggravating some of the orphan works issues. Life
of the author plus 70 years is a long time, and it really is
walling off--I mean, I am not suggesting--one of my colleagues
on the Floor told me that he thought we ought to go back to the
term that was in the Constitution. I think that 14 years would
be rather small. But I do think we should have a discussion
about what we have done in terms of walling off whole bodies of
work for a century and a half. It just seems like something
that should be part of this discussion.
With that, my time is up, Mr. Chairman. Thank you very
much.
Mr. Coble. I thank the gentlelady.
The gentleman from Missouri has no questions I am told. The
gentleman from Florida.
Mr. DeSantis. Thank you, Mr. Chairman.
Ms. Constantine, so how did the snippets of books displayed
in these search engines result in economic losses for the
authors? And how do you respond to the argument that that
actually could facilitate more book sales once people get a
snippet of the work?
Ms. Constantine. Well, I will go with the second question
first. It is not proven. There is no evidence of that. And we
believe taking eyeballs from a retailer like Amazon, for
instance, and bringing it into Google where there is a search
facility--you cannot buy anything from Google. You can buy
something from Amazon. So you have a sight of the book from
Amazon. You look at it, and then, ``Oh, this is an interesting
book.'' I can look at a few pages of it. I am going to press
and I am going to buy a book. With Google, it is not the same
thing, and there has been no evidence that it has caused more
sales.
With respect to snippets, there is a very lucrative excerpt
market out there for permissions for scholarly and other
material that is being adversely impacted by snippets, believe
it or not. And there was testimony to that effect at the Google
Books settlement fair use hearing. So there are specific
authors who are losing money because you can get a snippet of
the information that previously they were able to sell a
license in the open market.
But it is not just snippets. What is happening is they are
copying the entire books. Snippets--you can get 78 percent of
the book. They basically blacken 10 percent of every book. So
you can get a large chunk of the book.
And snippets are not defined anywhere in the law or, in
fact, in Google's back offices. They can expand and shrink at
Google's whim. It is a made-up concept and it is a made-up
term. So snippets can become a page or they----
Mr. DeSantis. How does that work with Amazon? Do they have
a limit? Because I know I have shopped----
Ms. Constantine. 20 percent.
Mr. DeSantis. Okay, so like table of contents and you get
to do some of those.
Like the public benefits to having some of these mass
digitization products--how should they be weighed against risk
to authors?
Ms. Constantine. Well, the problem with mass digitization
and what is happening now is that they are very vulnerable to
security breaches. They are online. Once there is a security
breach, you have widespread, flawless copies going out and
distributed anywhere. And then there is the pirate issue.
So the authors who I speak to are very concerned that they
did not give permission to anybody to digitize their works, and
they specifically do not want their works--some of them--
digitized because they are concerned about this total loss of
marketplace if the works get out there into the Ethernet. So it
could be a devastating blow to literary culture.
Mr. DeSantis. Mr. Donaldson, how many projects do not
proceed due to orphan works issues, and what is the economic
impact of those not proceeding? I know just the ball park
estimate from being knowledgeable.
Mr. Donaldson. There are probably thousands. Nobody keeps
those records, and I wish they did. But the potential is huge
because there is so much of that wonderful old material that
could be remade or made into films from books, articles. And in
the documentary field, virtually all documentaries eventually
run into the problem of wanting to use something and not being
able to find the owner. So they have to pull back and try and
use it within fair use or find something that may not be as
good, but it will kind of work in that instance.
Mr. DeSantis. So the economic impact--I mean, it is not
insubstantial.
Mr. Donaldson. That is correct.
Mr. DeSantis. There would be a tangible economic impact.
Okay, great.
Mr. Sedlik, what has changed in the photography world since
the original discussions about orphan works legislation, and
have positions of photographers towards these orphan works
changed, and if so, how?
Mr. Sedlik. The photography organizations have come
together to attempt to reach consensus in the interim. I do not
know that they have reached consensus. However, I believe that
you will find that the photographers and illustrators are very
open to cultural heritage type usages, noncommercial in nature,
of their works. There still remains the concern in
distinguishing between commercial and noncommercial usages of
orphan works.
But I think that you will find that the photography groups
acknowledge that society is the ultimate beneficiary of
copyright law. The issue that they see is that if copyright is
a tree, you do not want to chop the tree down to provide the
public with access to the apples. You want to put a ladder up
and let people get access and keep the tree growing strong and
producing apples indefinitely.
Mr. DeSantis. Great. I am out of time. I yield back to the
Chairman.
Mr. Coble. I thank the gentleman.
This concludes today's hearing. I stand corrected. The
gentleman from Florida.
Mr. Deutch. Thank you, Mr. Chairman, and thank you to the
witnesses for waiting around for me.
I appreciate your holding this hearing today.
I wanted just to go back to something that you said, Mr.
Lukow, in your testimony earlier. You referenced the problems
that are created by the sound recordings produced prior to
1972, which have to rely on State rather than Federal copyright
protections. As an avid music fan myself, I have been troubled
that there is an enormous number of America's music legends,
really real legends, that do not benefit from the basic
protections of sound recordings as our contemporary artists do.
And I applaud Ranking Member Conyers for his attention to
this issue as well.
You told Chairman Coble that legislation correcting this
shortcoming is needed. I absolutely agree.
One issue that you raised, though, that I had not
considered before is the challenges that the pre-1972 loophole,
I would call it for lack of a better word--the challenges that
are created for preservation. And I would like you just to run
through some of those issues as they relate to the issue of
preservation.
Mr. Lukow. Well, the bottom line is that sound recordings,
pre-1972 sound recordings, because they have no Federal
protection, they are not included in any of the clauses of
section 108 which authorize preservation.
So we are doing a lot of preservation under fair use and
recognizing items that are degrading and in need of immediate
preservation.
One of our most public high profile projects was the
Library of Congress National Jukebox where we did receive a
license from Sony Music to digitize tens of thousands of the
earliest recordings from the first 35 years of history. So that
became a major preservation and access project. It is very
successful. We are going to be adding another 10,000 recordings
to the jukebox later this year.
Mr. Deutch. Great. I appreciate that.
Mr. Rudick, I just wanted to turn to you on a different
issue, although judging from your reaction, you may have a
comment on my first question.
Mr. Rudick. Well, I just wanted to point out that among the
recommendations in the section 108 report is a proposal that
would address just the concern that Mr. Lukow raised. So we did
recognize the problem and we did propose just the solution that
is being requested. Sorry.
Mr. Deutch. No. I appreciate that.
I wanted to talk about the orphan films that I think you
had discussed. No, no. Mr. Donaldson?
Mr. Donaldson. Yes, sir.
Mr. Deutch. Sorry about that. That is what I get for
running to another meeting in between.
Of those, I think there were 10,000 of them, 10,000 orphan
films?
Mr. Donaldson. At the UCLA film and television archive
alone.
Mr. Deutch. I am just curious. Again, a process question.
Did UCLA try contacting the director or writer for the films as
an attempt to try to get at this? I imagine that many of them
are still with us or, at a minimum, their heirs would know
where to find the copyright holder.
Mr. Donaldson. I do not know the answer to that question,
but I would say that a substantial search for the copyright
owner of a film, when otherwise not locatable, should include
contacting the director and writer because they talk to each
other and maintain friendships over a lifetime and say, ``Oh, I
know where that guy went.'' To me, a substantial search really
has to be a substantial search. That would include friends of
friends. Bill Saunders has tried all kinds of ways to find out
who owns his grandfather's music.
Mr. Deutch. I appreciate it.
Mr. Chairman, I appreciate your holding this hearing open
long enough for me to ask a couple questions. And I yield back.
Mr. Coble. You are indeed welcome.
Again, we will express our thanks to the distinguished
panel that has joined us today.
This concludes today's hearing. Thanks to all of our
witnesses for attending.
Without objection, as I said previously, all Members will
have 5 legislative days to submit additional written questions
for the witnesses or additional materials for the record.
This hearing is adjourned.
[Whereupon, at 3:41 p.m., the Subcommittee was adjourned.]
A P P E N D I X
----------
Material Submitted for the Hearing Record
Prepared Statement of Marc Maurer, President,
the National Federation of the Blind
Section 108 of the Copyright Act provides a safe harbor for
libraries and archives to make copies of copyrighted works, without
prior authorization, under a very limited set of circumstances. In the
words of the statute, ``[n]othing in this section . . . in any way
affects the right of fair use as provided by section 107.'' \1\ Section
108 could not be any clearer that it does not supplant or otherwise
limit fair use rights. Because fair use is critical to enabling the
blind to access our society's wealth of information, the National
Federation of the Blind (``NFB'') respectfully requests that any
revision to the Copyright Act retain a provision expressly stating that
libraries' right to copy is not limited to the circumstances enumerated
in section 108.
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\1\ 17 U.S.C. Sec. 108(f)(4).
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Making copies of copyrighted works for the blind has long been
considered a paradigmatic example of fair use.\2\ Through the doctrine
of fair use, blind individuals have been able to access copies of works
that would otherwise be unavailable to them given the scant market for
accessible texts. Fair use and section 121 \3\ of the Copyright Act
have worked to vastly increase access to copyrighted works for the
blind. Programs like the Library of Congress National Library Service
for the Blind and Physically Handicapped, Learning Ally, and Bookshare
allow quick access to hundreds of thousands of popular titles to blind
and other print-disabled readers.
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\2\ Copyright Law Revision, H. R. Rep. No. 94-1476 at 73 (1976);
Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 455
n.40 (1984).
\3\ 17 U.S.C. Sec. 121 permits authorized entities to copy and
distribute copyrighted materials to the blind and other print-disabled
individuals in specialized formats.
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With the development of the HathiTrust digital library, a digital
collection of more than ten million works from various university
libraries, equal access to scholarly works for blind students and
scholars has become a reality. Before the HathiTrust, blind university
students would have to wait weeks or months for limited, ad hoc access
to required course reading and had no meaningful opportunity to engage
in library research. The HathiTrust has begun to change this. Blind
students and scholars at participating universities now have access to
millions of texts at their fingertips, with the ability to browse
titles, skim through book chapters, consult tables of contents and
indices, and perform research on par with their sighted peers. The
HathiTrust has been revolutionary for the blind.
If section 108 were to be revised so that it limited, or could be
interpreted as limiting, libraries' rights to make copies for the blind
under sections 107 or 121 of the Copyright Act, all of the progress in
advancing access to information for the blind would be lost. Indeed, in
its lawsuit challenging the legality of the HathiTrust digital library,
the Authors Guild has argued that section 108 requires that the
HathiTrust be shut down.\4\ The crux of the Authors Guild's argument is
that the HathiTrust violates the Copyright Act because it exceeds the
bounds of section 108 by including copies of every work in the
libraries' collections (rather than only those specifically requested
or otherwise authorized under section 108) and by permitting blind
readers to access the digital copies on their home computers outside of
the walls of the library. Given the clear language of section
108(f)(4), the district court rejected the Authors Guild's argument.\5\
Nevertheless, the Authors Guild has continued to argue on appeal that
the libraries are not permitted to copy beyond what is authorized under
section 108.\6\
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\4\ The Authors Guild, Inc. v. Hathitrust, 902 F. Supp. 2d 445, 456
(S.D.N.Y. 2012). The NFB intervened as a defendant in this lawsuit.
\5\ Id. at 457-58.
\6\ The Authors Guild's appeal to the United States Court of
Appeals for Second Circuit is pending. See No. 12-4547-cv (2d Cir.)
---------------------------------------------------------------------------
If the Authors Guild's argument were to prevail, or if section
108(f)(4) were eliminated, the doors of the library would, as a
practical matter, be closed to the blind. If libraries' right to copy
materials were limited to only those rights set forth in section 108,
libraries could make copies for archival purposes, but they could not
create libraries of digital copies for use by the blind because such
copies would not have been made upon the ``request'' of the user, but
in advance of and in anticipation of such requests.\7\ Thus, a student
in need of sources for a research paper would have to wait for library
staff to make an accessible copy of each book that seemed remotely on
point--a process that might take longer than the time in which the
student had to write the paper. Yet sighted students could simply walk
into the library, browse the stacks, and immediately select and begin
reading relevant texts. In a world in which libraries could not engage
in mass digitization to make accessible copies of their collections in
advance of individual requests, there is no way a blind student could
compete with his peers or meaningfully engage in library research. The
only way that blind students and scholars can be assured of timely and
equal access to information is by having large collections of
accessible digital copies ready for use in advance of requests for
specific texts.
---------------------------------------------------------------------------
\7\ 17 U.S.C. Sec. 108(d),(e).
---------------------------------------------------------------------------
The other problem with confining libraries' ability to copy texts
to the confines of section 108 is that it limits digital copies made
for archival purposes from leaving the premises.\8\ A blind Ohio State
University student who had persuaded Bookshare to make him a copy of
his introduction to economics textbook would have to fly to northern
California, where Bookshare's offices are located, each time the
professor assigned new pages.
---------------------------------------------------------------------------
\8\ 17 U.S.C. Sec. 108(b)(2), (c)(2)
---------------------------------------------------------------------------
A revision of the Copyright Act that limited libraries' right to
make accessible copies to only those circumstances enumerated in
section 108 would therefore remove accessible texts from the hands of
blind individuals, effectively excluding the blind from participation
in our increasingly information-driven society. Such an outcome would
run counter to the purpose of the Copyright Act, which is ``to promote
the Progress of Science and useful Arts.'' \9\ The Constitution is
clear that copyright is first and foremost a tool for promoting
learning, not for barring the blind from our collective storehouses of
knowledge. Thus, to fulfill the purposes of copyright and to advance
the tremendous progress that has been made in opening the library doors
to the blind, the rights of libraries to make copies should not be
limited to the circumstances enumerated in section 108, but should
continue to include the rights set forth in section 107 and 121 of the
Copyright Act.
---------------------------------------------------------------------------
\9\ U.S. Const., Art. I, Sec. 8, cl. 8.