Copyhype

The US Patent and Trademark Office (USPTO) held a public meeting on April 1 to discuss how the federal government could facilitate the development of the online licensing environment for copyrighted works. Specifically, the USPTO was interested in hearing how the government could encourage “development and use of standard identifiers for all types of works of authorship, interoperability among databases and systems used to identify owners of rights and terms of use, and a possible portal for linking to such databases and to licensing platforms”—a portal possibly modeled after the United Kingdom’s Copyright Hub, launched nearly two years ago. In other words, how can we make online licensing easier?

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 the 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 it seemed—you know, it was a very technical conversation in talking about standard definitions, it talked about interoperability, very focused obviously on the specific problems of the music industry in this country and all the complexity of the way it’s structured. And, so, I felt okay.  I felt this is not really threatening the interests of libraries and their users.

And then we had this afternoon’s conversation, which I frankly have found quite alarming. And what I found very alarming is in the presentation about the Copyright Hub that it seemed—you know, the examples were about educational uses or personal uses and that those were the kinds of uses that should be licensed. And then, you know, when [USPTO Chief Policy Officer and Director for International Affairs] Shira [Perlmutter] was sort of introducing this panel, talking about low-value uses, and I say, okay, I get in the morning when we were talking about, you know, commercial works and commercial uses, you know, that makes sense, I get that.

But when you start talking about low-value uses, I say, okay, they’re talking about me, you know, they’re talking about what my people are doing. And, so, you know, I know there’s been a few references to fair use during the course of this panel, but, you know, my ultimate point here is that we’re very worried that this discussion sort of leads to a place where fair use is undermined. I mean, we’re comfortable where fair use in this country is now. I know some of you on the panel are not, and …Â= the fact that you like all this makes’is also alarming to me. But, you know, the bottom line is, you know, you have to—you know, there’s a lot of skepticism in the library community about where this could end up.

In short, “We should not make online licensing easier.”

The “licensing undermines fair use” talking point was expected, and several panelists rebutted Band’s hand-wringing. But what was not entirely expected was what occurred several minutes later when another audience member stood up, and said,

I am Janice Pilch, Copyright and Licensing Librarian at Rutgers University Libraries. And I want to say that I didn’t find anything said this afternoon to be alarming. I don’t think that any ideas expressed this afternoon or the idea of the Hub is incompatible with copyright limitations and exceptions. We don’t—it doesnt mean that we would cut them out of the picture; it doesnt mean that they would go away.

Pilch added, “On the other hand, as [Songwriters Guild of America President] Rick Carnes said this morning, it all starts with creators. And if we cut creators out of the picture, we’re not helping anything. And that should be the primary thing that we think about in using works.” I couldn’t have said it better myself.

The public dissent from Band by a librarian suggests that not all in that community accept the view that 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? 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. Some 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 “ancillary” and “incidental.” 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 “anti-fair use” 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 amended § 107 to add that “The 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.” This expansion of fair use was aided by lobbying from 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 Circuit’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, 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 also draws focus from other mechanisms in the copyright framework that can balance the plurality of interests, such as licensing. 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, Daniel Kelly, The Right to Include, 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 Group’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.