Copyright Office Identifies Libraries, Mass Digitization as Priority In Copyright Policy

Maria A. Pallante, the Registrar of Copyrights, released a report last week identifying the legislative priorities for October 2011 through October 2013.  These are, as the proverb goes, interesting times for copyright law, what with every interested party staking out conflicting positions, extreme or otherwise.  Take a look, for example, at this commentary from The Awl, which contains author Ursula Le Guin’s take on the best outcome of the Google Book case, as she would like it:

"Their [Google’s] agreement, or a ruling requiring them, to immediately stop digitalising copyrighted books without obtaining permission from the copyright owner. With a reminder to the libraries that have been facilitating this illegal activity that it is piracy, and they should not have agreed to it."

I believe under that scenario the publishers would be free to follow in the footsteps of the music labels and pursue those who share illegal copies of digitized books:  snaring a few high profile (and high expense) cases and at the same time deterring practically no one.  Google and the libraries would theoretically live in peace and harmony.  Le Guin doesn’t state whether she favors changes in the law that would facilitate mass digitization of books.  The Copyright Office, however, at least identifies the issue from the perspective that it needs to be addressed going forward:

Mass Digitization

The Copyright Office has undertaken a preliminary analysis identifying the issues related to mass book digitization—developments the Office analyzed in connection with the U.S. Statements of Interest filed in the Google Book Search litigation, as well as in testimony on the subject provided by former Register Marybeth Peters in the House of Representatives. The analysis addresses the current landscape and marketplace; possible methods to facilitate digitization projects, including voluntary, extended, and statutory collective licensing; and the implications for prior studies and proposals to address orphan works (www.copyright.gov/orphan) and section 108 library and archive exceptions in the digital age (www.section108.gov). The Office will use the analysis as the basis for future research and policy discussions in the United States. Publication date: October 2011.  www.copyright.gov/docs/massdigitization

Here are related statements with respect to orphan works and libraries:

Orphan Works

One issue that has been very widely discussed in recent years is how to create a legal framework to facilitate the authorized use of so-called “orphan works.” Orphan works are defined, in this context, as works for which authors cannot be identified and located by prospective users in situations that would otherwise require permission and licenses.  In 2006, the Copyright Office delivered a major study to Congress on this issue: Report on Orphan Works (www.copyright.gov/orphan). The Office agreed with many in the copyright community that millions of works that could be available to the public (e.g., for research, education, or use in mainstream books or documentary films), are barred from use because of the inability to find rightsholders. The Office proposed limiting the remedies a copyright owner might obtain against one who has failed to identify or locate the copyright owner after conducting a reasonable, diligent search (details of which were later defined in draft legislation to incorporate best practices and technological tools).  The House and Senate worked extensively on orphan works legislation in the 109th and 110th Congresses. The topic then stalled after the parties to litigation involving the Google Book Search program announced a proposed settlement agreement in part because it had implications for orphan books. However, in 2011 the court rejected an amended version of the settlement, expressly ruling that the disposition of orphan works belongs with Congress, not the courts. See Authors Guild v. Google Inc., 770 F. Supp. 2d 666, 677–78 (S.D.N.Y. 2011). Foreign countries, including members of the European Union, are also renewing their focus on the orphan works problem. The Copyright Office will continue to provide analysis and support to Congress on this important issue.

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Copyright Exceptions For Libraries

In 2008, the Copyright Office received the Section 108 Report (www.section108.gov) which details concerns with the current copyright exceptions for libraries and archives (and discusses expanding the section 108 exceptions to museums). The independent study group included a mix of copyright owners and copyright users; its work was cosponsored by the Librarian of Congress and the Register of Copyrights. In sum, the 2008 report concluded that section 108 fails to meet the needs of libraries and archives (and other entities, such as museums) dealing with born-digital works, digital preservation and conversion issues, as well as numerous types of uses and lending of works by patrons of these institutions. Because some of the issues were implicated in the Google Book Search litigation (including issues related to providing access to copyrighted works), some stakeholders were wary of proceeding too quickly with legislative discussions. However, because many of the issues are critical for libraries, in 2012 the Office will formulate a discussion document and preliminary recommendations on these issues.

I’ve said many times that I would like to see the underlying litigation in the Google Book case and the HathiTrust case go to a final court decision as at least we’d know what the Courts believe to be fair use under the current copyright laws.  I believe the libraries have a better chance here than with legislation as the Courts tend not to be persuaded by campaign contributions when it comes to interpreting legislation (or making it).  How would Le Guin feel if the courts ruled mass digitization projects are fair use?  Would that still make it piracy?  [MG]