During the audience comment period of the meeting, Jonathan Band, here representing the Library Copyright Alliance, 1The Library Copyright Alliance is an advocacy organization whose members include theÂ American Library Association, the Association of Research Libraries, and the Association of College and Research Libraries. Band also represents the CCIA, a “membership organization for a wide range of companies in the computer, Internet, information technology, and telecommunications industries”, whose members include Amazon, Google, and Pandora. stood up to say,
In the morning, I felt pretty good, because itÂ seemedâ€”you know, it was a very technical conversationÂ in talking about standard definitions, it talked about interoperability, very focused obviously on the specificÂ problems of the music industry in this country and all theÂ complexity of the way itâ€™s structured.Â And, so, I feltÂ okay.Â I felt this is not really threatening the interestsÂ of libraries and their users.
And then we had this afternoonâ€™s conversation,Â which I frankly have found quite alarming. And what IÂ found very alarming is in the presentation about theÂ Copyright Hub that it seemedâ€”you know, the examplesÂ were about educational uses or personal uses and thatÂ those were the kinds of uses that should be licensed. AndÂ then, you know, when [USPTO Chief Policy Officer and Director for International Affairs] Shira [Perlmutter] was sort of introducing thisÂ panel, talking about low-value uses, and I say, okay, IÂ get in the morning when we were talking about, you know,Â commercial works and commercial uses, you know, that makesÂ sense, I get that.
But when you start talking about low-value uses,Â I say, okay, theyâ€™re talking about me, you know, theyâ€™reÂ talking about what my people are doing. And, so, youÂ know, I know thereâ€™s been a few references to fair useÂ during the course of this panel, but, you know, myÂ ultimate point here is that weâ€™re very worried that thisÂ discussion sort of leads to a place where fair use isÂ undermined. I mean, weâ€™re comfortable where fair use inÂ this country is now. I know some of you on the panel areÂ not, and …Â the fact that you like allÂ this makesâ€”is also alarming to me. But, you know, theÂ bottom line is, you know, you have toâ€”you know, thereâ€™sÂ a lot of skepticism in the library community about whereÂ this could end up.
In short, “We should not make online licensing easier.”
The “licensing undermines fair use” talking point was expected, and severalÂ panelists rebutted Band’s hand-wringing. But what was not entirely expected was what occurred several minutes later when another audience member stood up,Â and said,
I am Janice Pilch, CopyrightÂ and Licensing Librarian at Rutgers University Libraries.Â And I want to say that I didnâ€™t find anything said thisÂ afternoon to be alarming. I donâ€™t think that any ideas expressed this afternoon or the idea of the Hub isÂ incompatible with copyright limitations and exceptions.Â We donâ€™tâ€”it doesnâ€™t mean that we would cut them out ofÂ the picture; it doesnâ€™t mean that they would go away.
Pilch added, “On the other hand, as [Songwriters Guild of America President] Rick Carnes said thisÂ morning, it all starts with creators. And if we cutÂ creators out of the picture, weâ€™re not helping anything.Â And that should be the primary thing that we think aboutÂ in using works.” I couldn’t have said it better myself.
The publicÂ dissent from Band by a librarian suggests that not all in that community accept the view thatÂ user rights can only come at the sacrifice of author rights. The public interest might instead be served by recognizing both have interests, and these interests are mutually reinforcing. What librarian, after all, doesn’t hold books and authors in high regard? And what author wouldn’t cite libraries as playing a role in inciting their interest in writing?Â The suggestion that authors and publishers would want to undermine uses of their works outside their exclusive rights secured by copyright law is alien to those authors and publishers.
Nevertheless, it’s true that rhetoric as heated up in recent decades in the copyright arena. SomeÂ of this rhetoric has centered around the fair use doctrine. As Justin Hughes noted in a recent address, fair use has become “a principal arena in the struggle between proponents and opponents of IP.” This is not unexpected, the open-ended and vague nature of the doctrine practically invites struggle. It is also an antagonistic doctrine: someone wins, someone loses. Either a copyright owner loses all right to a use, or a copyright user faces full legal liability for infringement.
Band’s remarks illustrate one particular view that has emerged from this stuggle: the idea that fair use is under attack, and is the only thing standing between purely private interests and a broader public interest. This view is unfounded.
At this year’s Fordham IP conference former US Copyright Office General Counsel and retired Proskauer Rose partner Jon Baumgarten reiterated the important point that while there may be concern over expansive directions the fair use doctrine has taken in recent years, that does not translate into opposition to fair use itself from authors and copyright owners. Said Baumgarten,
My first concern is that the fair use doctrine is apparently moving far away from the objective of ancillary or incidental furthering of independent authorship. I deliberately used the terms â€œancillaryâ€ and â€œincidental.â€ I do not mean unimportant, I do not mean not valuable; I just mean occasional and ancillary to the creation of a new work of authorship.
I think fair use is indeed quite important. I represented publishers of biographies, histories, historical fiction, newspapers and documentaries for many years. We had to believe in and exercise fair use or we could not survive. So I am not â€œanti-fair useâ€ by any means.
This support for traditional fair use is not merely lip service. The only statutory change to fair use since the 1976 Copyright Act came in 1992, when Congress amendedÂ Â§ 107 to add thatÂ â€œThe fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.â€ This expansion of fair use was aided by lobbying fromÂ authors and publishers. 2See, e.g., William Patry, Copyright Law and Practice, Amendments to the 1976 Act (2000) (“The legislation was introduced out of misplaced concerns by some publishers and authors that the Second Circuitâ€™s decisions in Salinger v. Random House, Inc. and New Era Publications International ApS v. Henry Holt & Co. would make the publication of biographies and history using unpublished material more difficult by allegedly erecting a per se rule against fair use of unpublished works.”); Accord Statement of Floyd Abrams, Hearing: Fair Use and Unpublished Works,Â Joint Hearing on S.2370 and H.R.4263, pg 186 (July 11, 1990) (Expressing support of legislation on behalf of, inter alia, Authors Guild and Association of American Publishers).
This rhetoric alsoÂ draws focus from other mechanisms in the copyright framework that can balance the plurality of interests, such as licensing.Â Too often forgotten are the benefits that licensing offers. Since licensing agreements are the result of negotiations, they approach mutually beneficial ends. On a more general note, they encourage goodwill and collaboration. The absense of formal inclusion mechanisms like licensing invites antagonism and opportunism. 3See, generally, DanielÂ Kelly, The Right to Include,Â 63 Emory Law Journal, 857 (2014). Licensing also provides certainty and reduces exposure to risk.
That’s not to say licensing can solve all problems; there are certainly legitimate concerns on both sides that can raise challenges. Libraries want to make sure that licensing of digital works does not unduly impede their circulation and archival missions. Authors and publishers want to make sure they can continue to recoup their investment in creation and dissemination of new works.
Statutory exceptions play an important role as well. Though not as flexible as fair use, they provide far greater certainty since they spell out exactly what is permitted. At the House Judiciary Committee’s final copyright review hearing last month, US Register of Copyrights Maria Pallante identified a number of issues ripe for legislative action. Among these issues was updating the Section 108 library exceptions. Pallante said, “The Office agrees that the provisions should be comprehensible and should relate logically to one another, and we are currently preparing a discussion draft. This draft will also introduce several substantive changes, in part based upon the recommendations of the Study Groupâ€™s 2008 report. It will address museums, preservation exceptions and the importance of ‘web harvesting’ activities.”
Obviously, the details will be determinative, but the principle behind the recommendation is a good one, and no cause for alarm.
|↑1||The Library Copyright Alliance is an advocacy organization whose members include theÂ American Library Association, the Association of Research Libraries, and the Association of College and Research Libraries. Band also represents the CCIA, a “membership organization for a wide range of companies in the computer, Internet, information technology, and telecommunications industries”, whose members include Amazon, Google, and Pandora.|
|↑2||See, e.g., William Patry, Copyright Law and Practice, Amendments to the 1976 Act (2000) (“The legislation was introduced out of misplaced concerns by some publishers and authors that the Second Circuitâ€™s decisions in Salinger v. Random House, Inc. and New Era Publications International ApS v. Henry Holt & Co. would make the publication of biographies and history using unpublished material more difficult by allegedly erecting a per se rule against fair use of unpublished works.”); Accord Statement of Floyd Abrams, Hearing: Fair Use and Unpublished Works,Â Joint Hearing on S.2370 and H.R.4263, pg 186 (July 11, 1990) (Expressing support of legislation on behalf of, inter alia, Authors Guild and Association of American Publishers).|
|↑3||See, generally, DanielÂ Kelly, The Right to Include,Â 63 Emory Law Journal, 857 (2014).|