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Thoughts on the Copyright Office’s Priorities for 2011-2013

Last Updated on October 26, 2011, 8:28 pm ET

The Copyright Office (CO) announced its priorities for the next two years yesterday, including several items of interest to research libraries. This blog post will walk through some of the highlights; the full document is here.

Report on Mass Digitization Coming (Very) Soon

Of all the goals outlined in the CO’s report, the one with the shortest time horizon is a preliminary analysis of the issues surrounding large-scale book digitization. The CO indicates that its analysis will be posted sometime in October 2011 (i.e., in the next few days).

As the CO’s mass digitization site‘s current contents show, this work is an outgrowth of the Google Books litigation, in which the CO was a highly visible participant. Then-Register Marybeth Peters may have coined the most oft-repeated phrase in the oral arguments when she described the proposed “opt-out” settlement as “turning copyright on its head.” Peters has continued her work in support of “opt-in” solutions in her retirement, taking a position on the Board of Directors of the Copyright Clearance Center.

Mass digitization presents a host of unique problems that have not been addressed in previous efforts to sort out smaller-scale uses of library materials, especially orphan works. The one-at-a-time diligence that past orphan proposals have envisioned simply do not scale to the thousand- or million-volume level.

The CO says its analysis will include an evaluation of various solutions based in collective licensing (voluntary, collective, extended, and statutory). Recent conflicts in Canada, a close look at Norway’s regime, proposals in Europe, and a look at our own statutory licensing regimes for satellite TV all suggest that these types of solution can have significant disadvantages for libraries. It will be interesting to see what the CO makes of these issues.

Section 108, again.

In 2008, a study group comprised of representatives from the rights holder communities as well as libraries, archives, museums and other user groups issued a Report on the many shortcomings of the current specific exception for libraries and archives. While the Report expressed a consensus that Section 108 had not kept pace with the changing needs of beneficiary institutions (e.g., it does not deal adequately with needs associated with ‘born-digital’ works), the consensus did not reach many specific recommendations for changing the statute. Parties simply could not agree. The CO suggests that the Google Books litigation was also a factor.

The CO says it will “formulate a discussion document and preliminary recommendations” on the issues raised by the 108 Report. Given the failure of the stakeholders to come to consensus, we should watch closely to see how the CO resolves the tensions surrounding this important issue.

Orphans, still.

Another issue raised by the Google litigation, and by the new lawsuit against HathiTrust and its library partners, is the fate of ‘orphan works.’ ARL has worked with other stakeholders, including the CO, to find an acceptable legislative solution to this issue, but those negotiations left off in Congress at the very limit of what would be feasible for libraries. It is not clear that revisiting this issue in the legislative arena will give libraries a solution that is preferable to the strong fair use arguments already available to support library projects. Indeed, members of the Legal Issues workstream of the Digital Public Library of America reported at last week’s plenary that even its ambitious plans don’t include pushing for legislative change, as it makes more sense to work with what we have than to gamble that Congress will improve things.

The CO has already issued a comprehensive report on this issue, and legislative language already exists, so the CO is wise to refrain from announcing any specific work product on this question. Instead, they will “continue to provide analysis and support to Congress.”

Other issues

  • The CO is in the midst of its triennial DMCA rulemaking, in which it considers classes of works that should be exempt from the digital locks provisions of the Digital Millennium Copyright Act. In the past, these exceptions have focused on uses in academic settings, and ARL will continue to work to support useful rules in this area.
  • The CO will be issuing its report on Pre-1972 Sound Recordings in December. In our comments on this issue, ARL has asked the CO to highlight fair use.
  • The CO mentions that it has weighed in on the issue of “Rogue Websites,” without specifically endorsing the approaches that have been taken by the bills introduced on the issue. There are significant free speech concerns associated with those bills.
  • The CO highlights its work to digitize and make accessible its records of copyright registrations. This is an important corollary to the orphan works and mass digitization problems, as it would make it much easier for libraries to determine whether and when copyright terms might have expired.