A Joint Statement from Several Libraries
 

A Joint Statement From Several Libraries

Statement on Behalf of

The American Association of Law Libraries,
The American Library Association,
The Association of Research Libraries,
The Medical Library Association,
The Special Libraries Association,

H.R. 2441

NII Copyright Protection Act of 1995

Before the Subcommittee on Courts and Intellectual Property
of the House Committee on the Judiciary
104th Congress, 2d Session

February 8, 2020

Statement on behalf of The Nation's Libraries

H.R. 2441

NII Copyright Protection Act of 1995

Before the Subcommittee on Courts and Intellectual Property
of the House Committee on the Judiciary
104th Congress, 2d Session

February 8, 2020



As organizations representing the nation's libraries and librarians, the American Association of Law Libraries, the American Library Association, the Association of Research Libraries, the Medical Library Association, and the Special Libraries Association are pleased to comment on H.R. 2441, the "NII Copyright Protection Act of 1995." Taken together, we represent thousands of libraries and millions of library users throughout the nation, and we speak directly for our 80,000 library association members.

Librarians throughout the United States are keenly aware of the growth and development of the National Information Infrastructure. In fact, many libraries have taken the lead and worked hard to make the vision of the NII a reality by providing the means to make it available and accessible to their communities. As organizations dedicated to providing access to information in all formats, libraries understand well the importance of insuring that creators and information providers have an appropriate incentive to make their works available over the Network. But librarians also believe that as we move into the electronic environment, it is vitally important to maintain in the Copyright Act the carefully crafted balance between the rights of creators and the rights of information users that has served us so well in the traditional paper environment.

We recognize the need for updating selected provisions of the Copyright Act. Librarians are concerned, however, that if enacted as introduced, the pending legislation would have significant negative consequences for the future of education, research, and scholarship in the United States. Specifically, the bill gives a high level of control over electronic information to copyright proprietors, without similarly protecting and advancing the needs of information users in the electronic environment. As a result, we believe that H.R. 2441 would shift the historic balance to favor copyright owners over consumers and users.

In the current rapidly changing information environment, we are pleased that Congress is developing a digital update to the Copyright Act and beginning the discussion about how to meet the challenges of the digital age. At the same time, we look to Congress to preserve the balance that has promoted education, research, and creativity throughout the nation. In this statement we will: (1) explain why we believe the legislation, as it stands now, will dramatically shift the balance between creators and users and is likely to have significant unintended consequences, (2) discuss the need for a parallel digital update to the fair use provision and the library section of the Act, and (3) discuss the importance of resolving the issue of online provider liability, at least where the provider had no involvement in or knowledge of the allegedly infringing activity.

We understand that Congress is anxious to move forward on this legislation this term, and we would be pleased to work with Congress to develop solutions to these issues. As we move forward into the digital era, appropriate incentives must be provided for the creation of new works, while the needs of the public at large, students, scholars, and other researchers are also accommodated. One set of adjustments to the Copyright Act need not and should not be made without the other.

The proposed legislation will greatly strengthen the rights of copyright proprietors in the electronic environment, providing them with near total control over the reproduction, distribution, and use of their works. This level of control is far beyond what they enjoy today and will substantially raise the cost and reduce the flow of information that has fueled growth in research, education, and creativity in American society.

The genius of United States copyright law is that it balances the intellectual property rights of authors, publishers, and other copyright owners with society's need for the free exchange of ideas. The first sale doctrine, for example, allows libraries to share their resources with many individuals by lending items they have purchased or otherwise lawfully acquired. The American tradition of free circulating libraries is an important element of American democracy because it ensures that anyone may gain access to information regardless of ability to pay.

In contrast, the current legislative proposal places undue emphasis on the commercial exploitation of individual works by giving the owners of those works complete control over their electronic distribution. While owners now have exclusive control over the initial distribution of their work (See Harper &Row Publishers v. Nation Enterprises, 471 U.S. 539, 551 (1985).), once they do decide to make their works available, their rights are circumscribed by other elements of the law. These elements include the first sale doctrine in Section 109 of the Act, the fair use doctrine codified in Section 107, and the limited exemptions granted to libraries and educators under Section 108, among others. The expansion of the distribution right to include transmissions, coupled with the development of systems for the encryption and licensing of electronic works, essentially eliminates the limitations on the rights of copyright owners and gives them complete control, not only of the original decision to distribute, but of all subsequent distributions as well. This change sets the stage for a complete reversal of the library model of shared resources and moves us toward a completely commercial model. This will mean that a publisher may charge for every use of even the smallest element of a work, including even looking up a word in a dictionary. This model, if codified, will have important social implications that must be considered as the legislation is crafted.

Although the expansion of the distribution right to explicitly include transmissions may seem to some to be a modest change, its incorporation into the statute is likely to have unintended consequences, especially as technology continues to evolve. It is said that the inclusion of this change is merely a clarification of existing law because those courts that have considered the issue have correctly found certain transmissions to be infringing, even without specific language in the Act. But if the case law is developing in this way, then it may not be necessary to make the Act more explicit. If Congress does wish to clarify the law in this way, then it must ensure that it does not even unintentionally reduce the rights of educators, librarians, and other information users.

An example of an unintended consequence relates to Section 110 of the Act. That section exempts certain performances from liability, including among others, performances related to the instructional activities of educational institutions where a transmission is made primarily for reception in classrooms or where students cannot be present in a classroom because of disabilities or other special circumstances. Notably, this section exempts such transmissions from violating the performance right of the copyright owner. But if the copyright owners' transmission right is part of the distribution right instead of the performance right, then activities permitted now under Section 110 might well be found to violate the distribution right, even though they are explicitly exempted from violating the performance right. Such a change would have serious consequences for all of the activities covered by Section 110. It would be particularly devastating for a vital sector of education today -- distance learning -- a movement that is particularly important in the many states with large rural areas that are now being served by such programs.

There are other parts of the statute where we believe there would be similar unintended consequences. In the paper environment, for example, the first sale doctrine has been essential to the most basic activities of libraries -- the circulation of books. If Congress passes a digital update to the Copyright Act, we believe it should also update Section 109 of the Act as well. Although we are not submitting proposed language for that section at this time, we are working with the Digital Future Coalition and other organizations to craft an appropriate amendment. We would be pleased to forward such language to you shortly, and to discuss its implications for libraries at that time.

Beyond unintended consequences, the rights of copyright owners are significantly expanded in the proposed legislation through the bill's support of copyright management systems, including systems for the encryption and licensing of works. When implemented and enforced by the proposed criminal sanctions in the current bill, such systems will give copyright owners total control over all transmissions and other electronic distributions of their works, without regard to any other policies in the Act. With such high level control mechanisms in place, licensing will be the online equivalent of a subscription, substituting contract law for the balance of rights so carefully crafted by this Congress. Fair use will disappear. No one will be able to browse through an electronic work. No one will be able to share an interesting item with a friend. No one will be able to make a copy of a work or a portion of work to support their research or scholarship unless that person complies with the terms required by the proprietor. This is not a minor change. It will radically change the way our information delivery systems work and raise the cost of information for everyone, including school children, teachers, researchers and scholars.

With Congressional endorsement of encryption systems as a technological check on unlicensed use, whatever other policies are included in the Copyright Act will become essentially irrelevant because the licensing and encryption scheme will override them. The bill, for example, does not now require that such systems be built with the possibility of a fair use override. Without any restrictions imposed upon them, copyright owners will be able to dictate who may use a work and on what terms. That is something they have never been able to do before. The terms of the owner will almost certainly include some form of payment for every use of a protected work. Such a result will take us a very long way towards becoming a nation of information haves and information have-nots. Those who can afford to pay will get the information they need; those who cannot pay will have to do without.

Encryption systems also raise serious questions of privacy, an issue about which the American public is likely to be concerned. These systems will require the development of a mechanism for the tracking of every use of a particular work, together with a system for charging individual readers for whatever they use. Such a system will require a database that tracks the reading habits of every American. Many Americans will be troubled by the existence of such a database, considering it -- as they should -- an unwarranted intrusion on their privacy that has a chilling effect on what they choose to read.

In developing a digital update to the Copyright Act, the existing balance should be maintained by coupling provisions that benefit copyright owners with similar provisions for the benefit of information users. From the Library perspective, the need for this balance is particularly acute in the Fair Use (Section 107) and Library provisions of the Act (Section 108).

Fair use and other related provisions of the Act are the essential means by which teachers teach, students learn, and researchers advance knowledge. As Justice Sandra Day O'Connor noted in Feist v. Rural Telephone Service Co:

The primary objective of copyright is not to reward the labor of authors, but "[t]o promote the progress of science and useful arts." To this end, copyright assures authors the right to their original expression, but encourages others to build freely upon the ideas and information conveyed by a work. The result is neither unfair nor unfortunate. It is the means by which copyright advances the progress of science and art.

Each year, millions of researchers, students, and members of the public benefit from access to library collections. This access is supported by fair use, the right of libraries to reproduce materials under certain circumstances, and other related provisions of the copyright law. These provisions are currently limitations on the rights of copyright owners. Our concern is that they may become irrelevant in a regime where licensing and encryption substitute for purchases and subscriptions. The loss of these provisions in the emerging information infrastructure will greatly harm scholarship, teaching and the operations of a free society. Fair use, the library exemption, and other relevant provisions of the Act must be preserved. Copyright must not become an absolute monopoly over the distribution of, and access to, copyrighted information. In the age of information, a diminished scope of public rights will lead to an increasingly polarized society of information haves and have-nots.

Over the last year, our organizations have participated actively in the Conference on Fair Use, convened by the Working Group on Intellectual Property to see if interested parties could agree on electronic fair use guidelines similar to those that were agreed to at the time the Copyright Act was passed. Regrettably, some of those efforts now appear to have failed. Since the Working Group-sponsored meetings have failed to produce an agreement on electronic fair use guidelines, we believe that Congress must ensure that robust fair use in the electronic environment is an integral part of the proposed revision of the Act.

As Congress is now considering a digital update to the rights of copyright owners, it is essential to also consider a similar update to protect the rights of users. With regard to fair use and the library exemptions, these changes are not difficult. Just as the distribution right is being amended to include transmissions, we strongly urge that the Section 107 provision on fair use be similarly amended. Specifically, we recommend that "transmission" be added to the introductory sentence, as follows:

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phono records, by transmission, or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research is not an infringement of copyright. (New language underlined.)

This simple change will help assure that the universally endorsed goal of preserving and protecting fair use will carry forward -- in policy and practice -- into the electronic environment.

It has been suggested that the notion of fair use will somehow automatically expand to include the new technologies. But, it has also been argued that fair use and other statutory exemptions were premised on the technology of a certain time. We have never accepted that suggestion; the Act is, with perhaps only one exception -- for preservation of library materials -- technology neutral. Nonetheless, just as the copyright owners have suggested that ambiguity as to the transmission right necessitates its inclusion in the law, so too we suggest that the law should make it explicit that electronic uses that meet the other criteria of the Act might be found to be fair use. It was reassuring that Richard Robinson, testifying on behalf of the AAP, stated that fair use applied to both analog and digital formats. We assume, therefore, that they will have no objection to our clarifying proposal.

As the proposed legislation now stands, it will strengthen the rights of copyright proprietors in the electronic environment far beyond what they have today in the print environment. It will provide them with nearly total control over the reproduction, distribution, and use of their works. This level of control will substantially raise the cost and reduce the flow of information that has fueled growth in research, education, and creativity in American society. It is essential that before the bill is passed, it restore the previously existing balance through an amendment to Section 107 such as the one we have proposed that will carry fair use forward into the electronic age.

The library community agrees with the conclusion of the White Paper and the sponsors of the legislation that a digital update to Section 108 of the Act -- the section exempting certain library activities -- is needed. The White Paper concluded:

The Working Group believes that the law must preserve the role of libraries and archives in the digital era.

To achieve that objective, minor amendments to Section 108 are needed. We are pleased that the drafters have tried to accommodate the needs of libraries, particularly for the purpose of preservation of historical material. The preservation problem is nothing short of a national intellectual and historical crisis. The life expectancy of paper made since 1820 is only 50 to 75 years. In many cases, the copyright laws protect works longer than the physical objects are likely to survive. Libraries are working to meet this challenge through the use of microform and digital techniques to make three copies of historic works: an archival copy, a master from which other copies might be made, and a use copy. The intent of the proposed amendments is to make these activities permissible under the Copyright Act.

We believe, however, that the pending legislation, as drafted, will not actually achieve its intended purposes. The bill accommodates the needs of libraries to make three copies of a work for preservation purposes. We believe, however, that the reference to three copies should be placed in sections (b) and (c) only, not in Section (a) as currently proposed. On the other hand, the drafters have accommodated the need to use digital techniques by adding the word "digital" only to the two preservation sections, (b) and (c). Such a change will perpetuate the anomalous situation of having the preservation sections refer to specific formats. One of the goals of the 1976 Act was to make it format neutral, and the preservation sections are one of the few places where that goal was not achieved. The result is that an amendment is now needed. Congress should now make these sections technology neutral by simply striking the words ("in facsimile form") from sections (b) and (c) rather than adding the word "digital". These changes would make the sections read as follows:

(a) Except as otherwise provided, notwithstanding the provisions of section 106, it is not an infringement of copyright for a library or archives, or any of its employees acting within the scope of their employment, to reproduce no more than one copy or phono record of a work, or to distribute such copy or phono-record, under the conditions specified by this section, if--

[Subsections (1) and (2) remain unchanged]; (3) the reproduction or distribution of the work includes a notice of copyright if such notice appears on the copy or phono record that is reproduced under the provisions of this section.

(b) The rights of reproduction and distribution under this section apply to one copy three copies or phono records of an unpublished work duplicated in facsimile form solely for purposes of preservation and security or for deposit for research use in another library or archives of the type described by clause (2) of subsection (a), if the copy or phono record reproduced is currently in the collections of the library or archives.

(c ) The right of reproduction under this section applies to one copy three copies or phono records of a published work duplicated in facsimile form solely for the purpose of replacement of a copy or phono record that is damaged, deteriorating, lost, or stolen, or if the existing format within which the work is stored has become obsolete, if the library or archives has, after a reasonable effort, determined that an unused replacement cannot be obtained at a fair price.

These changes will allow libraries to meet the preservation challenge and to use any available format to carry out the activities authorized by the section. Such a digital update is essential to "preserve the role of libraries in the digital era."

Congress should resolve the issue of online service provider liability by amending the law to provide that such providers are not liable for the acts of their users, where they have no actual knowledge of an alleged infringement.

Increasingly, libraries throughout America are providing their communities with access to digital information through the use of the National Information Infrastructure. It is virtually impossible, however, for a library or any other provider to know that everything passing through its system, or even that everything loaded onto its system by a user, is in the public domain or has been placed there with permission.

Libraries have repeatedly stated that they support the basic goals of the copyright system, and that they desire to comply with it. But the content of the Internet changes hourly. It is simply not possible to review the content of every site with which one might be connected on a minute-by-minute basis. Similarly, if a library or educational institution provides the ability for their users to post information to the Internet, they cannot review each and every posting for content. That would be akin to opening every letter that passed through the post office. It is not only impossible; most would find such a review unethical.

This is not to say that there should be no liability for the distribution of infringing material over the National Information Infrastructure. We do believe, however, that the party who should be liable is not the innocent library through whose computer the information may have passed. This would shift the burden of discovering an infringement from the copyright owner, where it has traditionally rested, to a library or other neutral carrier, which might have no involvement with the infringing activity at all. Rather, we believe that liability should rest exclusively on the person who copied and placed the infringing material on the NII in the first place.

This is a critical time in the development of the National Information infrastructure. Imposition of liability on innocent information providers will have a devastating effect on the future development of the Network. Congress should resolve this issue now by removing liability from the innocent carrier and placing it on the culpable party.

* * *

The Library community is pleased to have had the opportunity to present this statement to the Committee. We hope to be able to work with you to further consider these issues and to identify or refine the proposed solutions.

Addendum

Library Recommendations for a Digital Update to the Copyright Act

Proposed Amendment to Section 107:

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phono records, by transmission, or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research is not an infringement of copyright.

[The remainder of Section 107 would be unchanged.]

Proposed Amendment to Section 108:

(a) Except as otherwise provided, notwithstanding the provisions of section 106, it is not an infringement of copyright for a library or archives, or any of its employees acting within the scope of their employment, to reproduce no more than one copy or phono record of a work, or to distribute such copy or phono-record, under the conditions specified by this section, if --

[Subsections 1 and 2 remain unchanged]; (3) the reproduction or distribution of the work includes a notice of copyright if such notice appears on the copy or phono record that is reproduced under the provisions of this section.

(b) The rights of reproduction and distribution under this section apply to one copy three copies or phono records of an unpublished work duplicated in facsimile form solely for purposes of preservation and security or for deposit for research use in another library or archives of the type described by clause (2) of subsection (a), if the copy or phono record reproduced is currently in the collections of the library or archives.

 

(c) The right of reproduction under this section applies to one copy three copies or phono records of a published work duplicated in facsimile form solely for the purpose of replacement of a copy or phono record that is damaged, deteriorating, lost, or stolen, or if the existing format within which the work is stored has become obsolete, if the library or archives has, after a reasonable effort, determined that an unused replacement cannot be obtained at a fair price.

The organizations endorsing this statement include:

The American Association of Law Libraries is an organization with over 5,000 members who respond to the legal and government information needs of lawyers and judges, law students and faculty, courts and legislatures, and members of the general public.

The American Library Association is a non-profit educational organization of 57,000 librarians, library educators, library trustees, and other friends of libraries from public, school, academic and research, state, and specialized libraries, and schools of library and information science.

The Association of Research Libraries is a not-for-profit organization representing 119 research libraries in the United States and Canada. Its mission is to identify and influence forces affecting the future of research libraries in the process of scholarly communication. ARL programs and services promote equitable access to and effective use of recorded knowledge in support of teaching, research, scholarship, and community service.

The Medical Library Association was founded in 1898 and is a professional organization of more than 5,000 individuals and institutions in the health sciences information field. MLA members serve society by developing new health information delivery systems, fostering educational and research programs for health sciences information professionals, and encouraging an enhanced public awareness of health care issues. Through its programs and publications, MLA encourages professional development of its membership, whose fore most concern is dissemination of health science information for those in research, education and patient care.

The Special Libraries Association is an international professional association serving nearly 15,000 members of the information profession, including special librarians, information managers, brokers, and consultants. The Association has 56 regional/state chapters in the U.S., Canada, Europe, and the Arabian Gulf States and 27 divisions representing subject interests or specializations. Special libraries/information centers can be found in organizations with specialized or focused information needs, such as corporations, law firms, news organizations, government agencies, associations, colleges, museums, and hospitals.

 

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