UPDATE: Just after this post was published, the U.S. Copyright Office released the long-awaited Discussion Document that was referenced below in this post. In this document the Copyright Office affirms a commitment to retaining the Fair Use Savings clause.
Libraries rely on exceptions to copyright law and provisions for fair use to provide services. Any changes to those rules have big implications to services we provide. With potential changes coming in an uncertain political climate, I would like to take a look at what we know, what we don’t know, and how it’s all related. Each piece as it currently stands works in relation to the others, and a change to any one of them changes the overall situation for libraries. We need to understand how everything relates, so that when we approach lawmakers or create policies we think holistically.
The International Situation
A few months back at the ALA Annual Conference in Chicago, I attended a panel called “Another Report from the Swamp,” which was a copyright policy specific session put on by the ALA Office of Information Technology Policy (OITP) featuring copyright experts Carrie Russell (OITP), Stephen Wyber (IFLA), Krista Cox (the Association of Research Libraries [ARL]). This panel addressed international issues in copyright in addition to those in the United States, which was a helpful perspective. They covered a number of topics, but I will focus on the Marrakesh Treaty and potential changes to US Code Title 17, Section 108 (Reproduction by libraries and archives).
Stephen Wyber and Krista Cox covered the WIPO Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled (aka the Marrakesh Treaty), which the US is a signatory to, but has not yet been ratified by the US Senate (see Barack Obama’s statement in February 2016). According to them, in much of the developing world only 1% of published work is available for those with print disabilities. This was first raised as issue in 1980, and 33 years later debates at WIPO began to address the situation. This treaty was ratified last year, and permits authorized parties (including libraries) to make accessible copies of any work in a medium that is appropriate for the disabled individual. In the United States, this is generally understood to be permitted by Title 17 sections Fair Use (Section 107) and Section 121 (aka the Chaffee amendment), though this is still legally murky 1. This is not the case internationally. Stephen Wyber pointed out that IFLA must engage at the European level with the European Commission for negotiations at WIPO, and there is no international or cross-border provision for libraries, archives, or museums.
According to Krista Cox, a reason for the delay in ratification was that the Senate Committee on Foreign Relations wouldn’t move it to ratification unless it was a non-controversial treaty with no changes required for US law (and it should not have required changes). The American Association of Publishers (AAP) wanted to include recordkeeping requirements, which disability and library advocates argued would be onerous. (A good summary of the issues is available from the ALA Committee on Legislation). During the session, a staff attorney from the AAP stood up and made the point that their position was that it would be helpful for libraries to track what accessible versions of material they had made. While not covered in the session explicitly, a problem with this approach is that it would create a list of potentially sensitive information about patron activities. Even if no names were attached, the relatively few people making use of the service would make it possible to identify individual users. In any event, the 114th Congress took no action, and it is unclear when this issue will be taken up again. For this reason, we have to continue to rely on existing provisions of the US Code.
Along those lines, the panel gave a short update on potential changes to Section 108 of the Copyright Act, which have been under discussion for many years. Last year, the Copyright Office invited stakeholders to set up meetings to discussion revisions. The library associations met with them last July, and generally while the beneficiaries of Section 108 find revisions controversial and oppose reform, the Copyright Office is continuing work on this. One fear with revisions is that the Fair Use exception clause (17 § 108 (F)(4)) would be removed. Krista Cox reported that at the Copyright Society of the USA meeting in early June 2017, the Copyright Office reported that they were working on a report with proposed legislation, but no one has seen this report [NOTE: the report is now available.].
Implications for Revisions to Title 17
Moving beyond the panel, let’s look at the larger implications for revisions to Title 17. There are some excellent reasons to revise Section 108 and others–just as the changes in 1976 reflected changes in photocopying technology 2, changes in digital technology and the services of libraries require additional help. In 2008, the Library of Congress Section 108 Study Group released a lengthy report with a set of recommendations for revisions, which can be boiled down into extending permissions for preservation activities (though that is a gross oversimplification). In 2015 Maria A. Pallante testified to the Committee on the Judiciary of the House of Representatives on a wide variety of changes to the Copyright Act (not just for libraries), which incorporated the themes from that 2008 report, in addition to other later discussions. Essentially, she says that changes in technology and culture in the past 20 years made much of the act unclear and required application of loopholes and workarounds that were legally unclear. For instance, libraries rely heavily on Section 107, which covers fair use, to perform their daily functions. This report points out that those activities should be explicitly permitted rather than relying on potentially ambiguous language in Section 107, since the ambiguity means some institutions are unwilling to perform activities that may be permitted due to fear. On the other hand, that ambiguous language opens up more possibilities that adventurous projects such as HathiTrust have used to push on boundaries and expand the nature of fair use and customary practice. The ARL has a Code of Best Practices in Fair Use that details what is currently considered customary practice. With revisions, there enters the possibility that what is allowed will be dictated by, for instance, the publishing lobby, and that what libraries can do will be overly circumscribed. Remember, too, that one reason for not ratifying the Marrakesh Treaty is that allowances for reproductions for the disabled are covered by Fair Use and the Chaffee amendment.
Orphan works are another issue. While the Pallante report suggests that it would be in everyone’s interest to have clear guidance on what a good faith effort to identify a copyright holder actually meant, in many ways we would rather have general practice mandate this. Speaking as someone who spends a good portion of my time clearing permissions for material and frequently running into unresponsive or unknown copyright holders, I feel more comfortable pushing the envelope if I have clearly documented and consistently followed procedures based on practices that I know other institutions follow as well (see the Statement of Best Practices). This way I have been able to make useful scholarship more widely available despite the legal gray area. But there is a calculated risk, and many institutions choose to never make such works available due to the legal uncertainty. Last year the Harvard Office of Scholarly Communication released a report on legal strategies for orphan work digitization to give some guidance in this area. To summarize over 100 pages, there are a variety of legal strategies libraries can take to either minimize the risk of a dispute or reduce negative consequences of a copyright dispute–which remains largely hypothetical when it comes to orphan works and libraries anyway.
There is one other important wrinkle in all this. The Copyright Office’s future is politically uncertain. It could be removed from the purview of the Library of Congress, and the Register of Copyrights be made a political appointment. This was passed by the House in April and introduced in the Senate in May, and was seen as a rebuke to Carla Haydenn. Karyn Temple Claggett is the acting Registrar, replacing Maria Pallante who resigned last year after Carla Hayden became the new Librarian of Congress and appointed (some say demoted) her to the post of Senior Advisor for Digital Strategy. Maria Pallante is now CEO of–you guessed it–the American Association of Publishers. The story is full of intrigue and clashing opinions–one only has to see the “possibly not neutral” banner on Pallante’s Wikipedia page to see that no one will agree on the reasons for Pallante’s move from Register of Copyrights (it may have been related to wasteful spending), but libraries do not see the removal of copyright from the Library of Congress as a good thing. More on this is available at the recent ALA report “Lessons From History: The Copyright Office Belongs in the Library of Congress.”
Given that we do not know what will happen to the Copyright Office, nor exactly what their report will recommend, it is critical that we pay attention to what is happening with copyright. While more explicit provisions to allow more would be excellent news, as the panel at ALA pointed out, lawmakers are more exposed to Hollywood and the content creator organizations such as AAP, RIAA and MPAA and so may be more likely to see arguments from their point of view. We should continue to take advantage of provisions we currently have for fair use and providing access to orphan works, since exercising this right is one way we keep it.
- “Briefing: Accessibility, the Chafee Amendment, and Fair Use. ” (2012). Association of Research Libraries. http://www.arl.org/focus-areas/copyright-ip/fair-use/code-of-best-practices/2445-briefing-accessibility-the-chafee-amendment-and-fair-use#.WbadWMiGNPY ↩
- Federal Register Vol. 81, No. 109 https://www.federalregister.gov/d/2016-13426/p-8 ↩