Statement of Marybeth Peters
The Register of Copyrights
before the
Subcommittee on Courts and Intellectual Property
Committee on the Judiciary
United States House of Representatives
104th Congress, 1st Session
November 15, 1995
National Information Infrastructure Copyright Protection Act (H.R. 2441,
and S. 1284)
Thank you for the opportunity to testify on this important
piece of legislation, H.R. 2441, the "NII Copyright Protection Act of 1995," and S. 1284, the "National
Information Infrastructure Copyright Protection Act."
The Copyright Office supports the goals and basic substance of all of the proposed
changes to the Copyright Act. This statement explains the reasons for our support,
and also sets forth suggestions for further consideration of the specific language
of some of the bills' provisions.
Introduction
The Copyright Office had some involvement in the work of
the Administration's Information Infrastructure Task Force that led to the
recommendation of the proposed legislation by the Working Group on Intellectual
Property Rights in its report, "Intellectual Property and the National Information Infrastructure"
(the "White Paper"). The Office participated in Working Group discussions,
and had the opportunity to comment on drafts of the White Paper in progress.
The Office also submitted written comments on the preliminary version of
the report, known as the Green Paper. We appreciate the fact that a number
of our comments were taken into account in the final report. Our statement
today incorporates some of our prior comments on the Green Paper, but differs
in some respects, reflecting our consideration of the changes made in the
ultimate proposals of the White Paper.
The Copyright Office's written submission to the Committee
and Subcommittee will be in two parts. In this part, we will address only the
specific changes in the law that are proposed by the pending bills. In early
1996, we intend to submit a more in-depth analysis of issues raised by the application
of the Copyright Act to the NII. Among other things, we will address some of
the content of the White Paper that is not dealt with in the limited proposals
presented here. The White Paper sets out a comprehensive summary and analysis
of U.S. copyright law and its application in the digital environment, as well
as a discussion of the international context. Its conclusions call for a mix
of action and inaction, recommending that some areas of the law be changed,
but others left untouched despite calls for change. The areas left untouched
may be equally as significant as the proposed amendments, and our second submission
will address them as well.
General Comments
The Copyright Office strongly endorses the purpose and
general approach of the proposed legislation. In the context of the digital
networked environment, it is critical to ensure adequate and effective protection
of copyright, while maintaining the balance of interests that has made U.S.
copyright law so successful in promoting and disseminating creativity. Unless
this is accomplished, the NII will not achieve its full potential as a comprehensive
source of entertainment and information, and more fundamentally, the public
will be deprived of the maximum possible level of enrichment of culture and
knowledge.
We agree
with the Working Group that the general concepts of the copyright law as it
has evolved over the past two centuries can be applied to the activities taking
place today in the NII, and that only limited amendment is necessary to adapt
the law to current digital technologies. We therefore support the principles
behind the proposed amendments as well as most of their language. If enacted,
the amendments will not significantly shift the balance struck by current law
between owners and users of copyrighted works; rather, the clarifications that
they entail will enhance certainty and predictability, enabling rights to be
exercised and works to be used with greater assurance. The only aspects of the
bills that may shift the balance would do so by expanding the exemptions from
liability offered to libraries and to the visually impaired--furthering valid
and laudable goals. The remaining provisions in new Chapter 12 promise to make
a positive contribution in ensuring that rights will remain capable of effective
enforcement in the digital environment; they do not go to the substance of the
rights and should not affect the basic balance.
We do, however, have a
few concerns about certain specific aspects of some of the bills' provisions.
These concerns are essentially technical in nature, relating to how best to
accomplish the provisions' underlying goals without causing unintended negative
consequences, and should be able to be accommodated with relatively minor drafting
changes. We would be pleased to work with Congress, the Administration, and
the affected groups to find constructive solutions.
As the White Paper
points out, the process begun by the introduction of these bills has international
implications. The National Information Infrastructure cannot be contained within
U.S. borders; inevitably, it will be part of an extensive global network. Similar
issues arising from developing digital technologies are on the agenda in many
other countries, as well as in the forum of multilateral treaty negotiations.
Through the work of the Working Group, and the initiative of this Congress,
the United States is at the forefront of legal analysis in this area. This gives
us an invaluable opportunity to serve as a leader in helping to set the international
agenda, and providing an example to other nations in structuring their responses
to the digital challenge.
Finally, the Copyright Office notes that the
U.S. is at only a preliminary stage of legislative analysis. We believe that
the bills' limited proposals adequately address the current state of technology,
and that the Working Group did an excellent job in assessing the areas of immediate
need. Nevertheless, the proposals may offer only a short-term solution to the
challenges posed by the digital world. Within the next few years, a more fundamental
rethinking of the premises and structure of the Copyright Act may be necessary
in order to craft a statute flexible and capacious enough to accommodate technology
as it continues to evolve at the threshold of the twenty-first century. Although
the basic concepts of copyright will in our view remain valid and appropriate,
assumptions as to their manner of implementation may no longer fit.
The
1976 Copyright Act is based on the state of technology as of the mid-1970s--a
technology involving hard copy and radio and television broadcasting as the
essential means of dissemination. The drafters of the statute sought to be technology-neutral
and forward-looking in their choice of terms and definitions. For nearly 20
years, they were successful. Toward the end of this century, however, the pace
of change has accelerated, to the point where it may overtake their foresight.
No one can predict with certainty today the paths that technology will take
in the decades to come.
Over the next year or two, the Copyright Office
therefore plans to explore the likely directions of new technologies of fixation,
storage and dissemination, and to examine the question of how control may
be maintained over the primary forms of exploitation in the future in order
to assure the continued existence of a meaningful market for copyrighted
works. In particular, we are concerned about maintaining the essential balance
of the copyright system by preserving its most fundamental values: the ability
to choose when and how to provide access to works; the availability of a
smoothly functioning market for the licensing of uses, with appropriate exceptions
to further public policy; and an appropriate understanding of the distinction
between public and private use. In the long run we may need a law that focuses
more on substance and less on form--a more "intangible" copyright law.
Statutory Proposals
The bills propose four areas of change in the copyright law:
(1) several related amendments ensuring that the transmission of copies of a
work is within the scope of the copyright owner's exclusive rights; (2) an amendment
expanding the scope of the library exemption, primarily to allow the making
of digital copies; (3) a new exemption for the visually impaired; and (4) a
new Chapter 12, providing legal protection for the technology of copyright protection
systems and for copyright management information. We will address each of these
four areas in turn.
A. Amendments Relating to Transmission of Copies
Section 2 of the bill would make four separate but related
amendments to the Copyright Act. First, the distribution right in section
106(3) would be amended to add the phrase "or by transmission" to the list of methods
by which copies of a work can be distributed. Second, the definitions of "publication"
and "transmit" in section 101 would both be amended. The phrase "or by transmission"
would again be added to the end of the definition of publication. A new sentence
would be added to the end of the definition of "transmit," reading: "To 'transmit'
a reproduction is to distribute it by any device or process whereby a copy or
phonorecord of the work is fixed beyond the place from which it was sent." Finally,
section 602 would be amended to specify that the rules governing importation
into the United States apply to any importation "whether by carriage of tangible
goods or by transmission."
The Copyright Office supports all of these amendments
in their entirety. In our view, they represent a helpful clarification of existing
law at a time of rapid technological change.
1. Amendment to distribution right
The Copyright Office agrees with the Working Group that
the transmission of a work over a communications network should be included
within the scope of the copyright owner's exclusive rights. At this point
in time, it appears likely that transmission may soon become the primary
method of exploitation for works of authorship. If authors are to continue
to have meaningful and adequate incentives for creation, it is therefore
critical that they be able to control such uses of their works.
We believe that the Copyright Act in its present
form can and should be read to encompass within the author's exclusive rights
the right to transmit the work electronically to individual members of the public.
The handful of courts that have addressed the issue so far have come to that
conclusion. Such a use of a work has been held to involve the creation of a
copy of more than transitory duration in the recipient's computer, implicating
the reproduction right. If such copies are sent to members of the public, it
will implicate the distribution right. And if the work is made visible or audible
on the recipients' computers, it may implicate the rights of public display
or public performance.
Nevertheless, there are some who have proposed different
interpretations of the law. Since it may take years for the courts to establish
a definitive position on this issue, and since the development of the NII is
already well underway, it would be beneficial to clarify the law in order to
remove any possible uncertainty. The proposed amendment certainly should not
have any negative impact, as it does not create a new right but simply clarifies
existing rights.
This solution is one that may need to be revisited in
the near future. As technology evolves, in order to preserve adequate incentives
for creation, Congress must ensure that the copyright owner will continue
to control the basic means of exploitation of works of authorship--whatever
they may be at a given point in time. We therefore need to develop concepts,
and frame them in appropriate language, that will cover shifts in means of
exploitation without the need for constant legislative updating. Thus, for
example, if technology develops in such a way that transmissions of works
may be made without the creation of a reproduction in the receiving computer's
memory, the amended definition of "distribution" may no longer be sufficient
to cover this important form of exploitation.
We are aware that some dissatisfaction has been expressed
with the choice to clarify the law through the distribution right. In particular,
some argue that all transmissions effect public performances of works; others
take the position that every transmission results in a reproduction and should
be addressed solely through that right. Any choice of a place to incorporate
the concept of transmission, however, will be vulnerable to criticism in a world
where separate markets have developed for the licensing of different rights.
Some disruption of market structures is inevitable in circumstances of technological
change. The bills represent a reasonable solution, minimizing market disruption
to the extent possible. By amending the distribution right, rather than creating
a new right, they clarify that transmission is one way of making copies of a
work available to members of the public. In the course of any given transmission,
other rights may also be implicated, making it necessary to obtain authorization
from the appropriate licensing source or sources.
Since the amendment does
not change existing law, it should not create any new liability, or shift the
locus of responsibility for any infringing transmission.\1\
\1\ I since transmission in itself is not defined as an exclusive right, an intermediary in the trans-mission process would not thereby become directly liable. Only those who by means of the transmission engage in the act of distributing copies of the work to the public are direct infringers. (Depending on the circumstances, the intermediary might be subject to indirect liability through the doctrines of contributory infringement or vicarious liability.)
Rather, the amendment avoids the possibility that liability will be lessened by
an overly restrictive interpretation of the statute. The right remains "distribution to the public";
the possibility of accomplishing that distribution through a transmission
is now made explicit, so that courts will not erroneously perceive a gap
in the law.
There may also be other areas of concern that will have to be addressed in
the future. As discussed above, under current interpretations of the Copyright
Act, and based on current technology, every transmission of a work over a network
will result in the creation of a reproduction of that work, and therefore constitute
an act of prima facie infringement. Arguments have been made that some
of these reproductions should be privileged, particularly where they are incidental
and transient. In addition, online service providers are greatly concerned that
they are potentially liable for every infringing transmission made through their
services, no matter how responsibly they may act. These issues raise important
policy considerations that deserve careful attention. They could entail changes
in the law that significantly shift the balance between owners and users, which
should not be made lightly, and require further study. In the interim, these
issues should not delay the immediate clarification and updating of current
law through enactment of the limited proposals in the pending legislation.
2. Amendment to definition of "publication"
The Copyright Office also endorses the addition of "transmission" to the definition
of "publication," as a means of distribution to the public. First, assuming
that a digital transmission creates a copy in the recipient's computer, then
copies clearly can be made available to the public through transmission, and
the amendment simply confirms that reality. Second, the definition of "publication" was
written to parallel the language of the distribution right in section 106.
If the latter is amended, the former should be amended identically, or the
two concepts will no longer be coextensive. Third, including transmission
as a means of publication is appropriate from a policy perspective . The
key to publication should be whether or not copies or phonorecords of the
work have been made available to the public, in whatever form is desired.
When members of the public have received copies of the work through digital
networks, the work has been published to the same extent as if physical disks
had been purchased at a store.
In fact, the amended definition of publication is consistent with the Copyright
Office's interpretation of existing law, and with our own internal practices.
Since the early 1980s, we have accepted for registration as published works
those works whose owners have made copies available through online networks.
Amending the definition of publication may have a number of ramifications for
particular works, since application of many of the provisions of the Copyright
Act varies depending on whether a work is considered published or not. In general,
as the White Paper points out, copyright owners have more obligations and narrower
rights when their works are published. Most notably, published works are more
vulnerable to the defense of fair use, and fall within more of the Copyright
Act's specific exemptions. See, e.g., section 118(b). At this point,
however, we do not see any situation where treating a work transmitted online
as published would be inappropriate. The rationale for differing treatment of
published and unpublished works continues to apply in this context, since the
copyright owner has chosen to disseminate the work to the public.\2\
\2\ For just this reason, some courts have treated works that are technically unpublished but have been disseminated to the public through performance or display as subject to fair use to the same extent as published works. CITE.
Indeed, this clarification may assist the Library of Congress
by making more works clearly subject to the mandatory deposit requirement
for published works, thereby enriching the Library's collections and benefiting
the public.
Nor should the amended definition of publication create
international difficulties. Most importantly, we do not believe it would violate any of the United States' international treaty obligations.\3\
\3\The one potential problem in the international arena may be the definition
of "published works" in Article 3 (3) of the Berne Convention for the Protection of Literary and Artistic Works, which concludes with the statement that "the communication by wire or the broadcasting of literary or artistic works . . . shall not constitute publication." In the context of the entire definition, however, it is clear that this exclusion is meant to exclude from the definition of "publication" activities equivalent to the right of public performance under U.S. law, and to limit the definition to activities involving reproduction. Throughout the Berne Convention, the concept of "communication by wire" is
coupled with broadcasting or other public performance, and treated as a
subset of performance rights. See Art. 10bis; Art. llbis(l); Art. 14 (l). The concept does not appear to cover digital delivery of copies. Accordingly, we do not believe that the amended definition would conflict with Berne.
Although fewer foreign works might be subject to protection in this country,
since if published, they must fall within certain conditions for national eligibility
(see section 104), this result seems unlikely to cause problems.
3. Amendment to definition of "transmit"
The proposed amendments to the distribution right and the
definition of "publication" both involve the use of the term "transmission."
"Transmit" is a defined term in section 101 of the Copyright Act. Accordingly,
the definition should be made to fit the new contexts in which the term will
be used, and the legislation therefore proposes a conforming change.
The
current definition of "transmit" is limited to explaining what it means to
transmit a performance or display. It is not surprising that only performances
and displays are covered, since the technology in existence at the time the
definition was drafted was radio and television broadcasting. With the development
of electronic digital transmission, it has become possible to transmit works
in ways that may not involve a performance or display, either during the
transmission process or at the end point of the user's computer terminal.
It is therefore important that the definition explain the meaning of transmittal
of a reproduction as well.
Under the amended definition, a given transmission may implicate
the reproduction right as well as the rights of public performance or display.
It may be argued that this complicates the question of licensing, making it
less clear what person or organization may be the appropriate source of rights.
In our view, however, these same rights may all be implicated under current
law, and the proposed change to the definition only clarifies the situation.
4. Amendment to importation right
Finally, the legislation would amend the importation right
contained in section 602 of the Copyright Act to make clear that a work may
be imported by transmission as well as by carriage of tangible goods. Again,
the Copyright Office supports this amendment.
The marketplace for copyrighted
works is becoming increasingly global. Through the technology of digital transmission,
copies of works may be sent from abroad to recipients in the U.S. even more
easily than tangible goods may be carried across the border. If the copyright
owner does not wish to have his work made available in this country, or wishes
to impose different terms and conditions on its availability here in order to
satisfy economic goals or legal concerns, he should retain that option after
the work has been digitized. That option is provided by current law to the extent
that the transmission involves a reproduction of the work; the amendment would
remove any ambiguity on this point.
It is true that, as the White Paper
recognizes, the importation right will be difficult to enforce in the digital
context as a practical matter. Customs cannot seize a transmission at the border.
But if the act itself is clearly prohibited, the copyright owner has the ability
to pursue the importer even if none of his other exclusive rights have been
violated.\4\
\4\ We recognize that the implementation of an importation right in this context may raise privacy concerns. Those concerns can and should be dealt with directly on their own merits, by regulating as appropriate the ability of the government or private litigants to monitor private networks communications.
B. Exemption for Libraries
The legislation also proposes a broadening of section 108,
commonly referred to as the library photocopying exemption. The White Paper
states that the purposes of the proposed changes are 1) to accommodate the
reality of the computerized library by allowing the preparation of three
copies of a work in digital form, with no more than one copy in use at any
time (while the others are archived); 2) to recognize that the use of a copyright
notice on a work is no longer mandatory; and 3) to authorize the making of
digital copies for purposes of preservation.
The Copyright Office commends the Working Group and the committees for responding
to the concerns of libraries in adapting to the digital environment. We support
the inclusion of such an amendment to section 108, but believe that the proposed
language requires some fine tuning.
In making any change to section 108,
its history must be kept in mind. The evolution of section 108 was a difficult
process; the Register of Copyrights in 1983 characterized it as "turbulent." See
Report of Register of Copyrights on Library Reproduction of Copyrighted Works
12 (1983). The section represents the culmination of a hard-fought battle,
and reflects Congress's intended balancing of the rights of creators and
the needs of library users of copyrighted works. Changes to section 108 must
be considered in light of that careful balance.
This is a separate question from whether the right represents good copyright
policy.
1. Copies in digital form
The most far-reaching change in Section 108 is the inclusion
of the word "digital."
The amendment would allow libraries to make three digital copies for the purposes
of preservation of an unpublished work or replacement of a published work, if
certain conditions are met. Present law limits such activity to facsimile copies,
and the legislative history clearly shows that Congress in 1976 did not intend
to include reproduction of a work "in 'machine readable' language for storage
in an information system." Rather, the exemption was intended to apply only
to reproduction "by microfilm or electrostatic process." H.R. Rep. No. 1476,
94th Cong., 2d Sess. 75 (1976).
The Copyright Office endorses the expansion
of section 108 to cover digital copies, if their use is appropriately limited.
Similar concerns have been raised in the past. During the process of preparing
the Register's 1983 Report on Library Photocopying, the National Library
of Medicine proposed amending 108(c) to create a broad privilege for libraries
permitting preservation of published works, and to broaden the scope of the
phrase "facsimile form" to include a different medium. In the Report, the
Register stated that libraries should be able to employ new preservation
techniques, provided that the legislation incorporated adequate copyright
controls, with respect to both the preservation copying and the information
supplying functions of libraries. 1983 Report at 340. He recommended a thorough
review of these issues by library, user, author and publishing communities,
with a view to developing a common legislative position.
To date, these communities have not pointed
to any inadequacy in existing section 108's copyright controls. Certainly the
restriction in subsection (b), which limits to facsimile rather than digital
form any copy that is distributed to another library, is one source of such
control.
2. Three copies
One of the most important limitations in section 108 is
that all copying must consist of the preparation of "no more than one copy or phonorecord" at
a time. Since 1978, that has been the simple, across-the-board rule. As the
1983 Report of the Register noted, some multiple copying may be excused as
fair use; but multiple copies are not exempted by section 108.
We understand
that the increase to three exempted copies has been proposed in response
to librarians' expressed concerns about their preservation activities. In
the area of library preservation, as a matter of practice, three copies are
normally made. One copy is made available to the public; one is a back-up
copy; and the third is the "doomsday" copy stored in an off site, secure
location. The preferred preservation technology at this point is microform;
digital technology has not been used extensively for preservation activities.
That situation is changing, however, in part because of the searching capabilities
associated with digital archives, which make access to information easier.
Although standards have not been agreed on, we are told that preservation
in digital form would also require three digital copies, which would be allocated
the same way as the microform versions.
Since the purpose of increasing the exemption to three copies
relates only to preservation activities, it would be preferable not to change
the number of copies specified in section 108(a), which governs all types of
library reproduction, but to tie the three copies directly to preservation.
This would involve subsection (b), which deals with preservation of unpublished
works, and subsection (c), which deals with replacement copies for published
works. We note for the record that subsection (c) is not a general preservation
provision; only where the library's copy of the work is deteriorating would
the activity be considered preservation.
We would be pleased to assist
in redrafting subsections (a), (b) and (c) to accomplish this clarification.
3. Copyright notice
The Copyright Office understands the purpose of the proposed
change to subsection (a) allowing libraries to omit the notice of copyright
if it does not appear on the copy or phonorecord reproduced, and does not
oppose it. We would prefer, however, that the present language be retained,
or, in the alternative, that the proposed language be broadened to reflect
the current library practice of including on the reproduction at least a
legend concerning copyright.
In the past, there was some disagreement between librarians
and publishers as to what was required by section 108(a)(3). Did "a notice of
copyright" mean the statutory copyright notice described in sections 401-403,
or did it have a more general meaning? In the 1983 Library Photocopying Report,
the Register noted that the legislative history was ambiguous, and that "the
law itself gives some support to both positions."
The practice in most
libraries today with respect to the section 108 notice requirement is to
include the following legend: "NOTICE: THIS MATERIAL MAY BE PROTECTED BY COPYRIGHT LAW
(TITLE 17 U.S. CODE)." In light of this practice, the Copyright Office did
not recommend changing section 108(a)(3) when the general requirement of
notice was eliminated in the Berne Convention Implementation Act.
Many works published
today continue to bear copyright notices. However, much of the material reproduced
under section 108 consists of articles published in periodicals. The usual practice
in a periodical is to include a single notice for the periodical as a whole;
most individual contributions do not bear their own notice. Moreover, often
only portions of a work may be reproduced, and the notice may not appear on
those portions. If a reproduction of a copyrighted work bears a statutory notice
of copyright, that notice should be reproduced; however, for those reproductions
that do not contain a notice, we believe it is helpful to have libraries continue
their present practice of including the legend, as a reminder to users that
the work may be protected by copyright.
C. Exemption for the Visually Impaired
The proposed new section 108A would provide an exemption
for the visually impaired, allowing non-profit organizations to reproduce
and distribute to them, at cost, "a Braille, large type, audio or other edition of a previously
published literary work in a form intended to be perceived by the visually impaired," if
the owner of the U.S. distribution right has not entered the market for such
editions within one year after the work's first publication. The exemption
would go well beyond the special treatment provided for the blind and physically
handicapped under existing law, which establishes forms and procedures, in
connection with an application for copyright registration for certain nondramatic
literary works, for the voluntary granting of a license to the Library of
Congress to reproduce and distribute the work in Braille or similar tactile
symbols, or in a phonorecord. See 17 U.S.C. section 710; C.F.R. section 201.15.\5\
\5\ Another section of the Copyright Act exempts certain nonprofit performances
of nondramatic literary works "by or in the
course of a transmission specifically designed for and primarily
directed to blind or other handicapped persons who are unable to read normal printed material as a result of their handicap." 17
U.S.C. Section 110(8).
The goal of the new exemption is to permit this audience meaningful access to copyrighted works, including copies in digital format to be read with the aid of software and computer equipment. The Copyright Office fully endorses this goal. We recommend, however, that the language of the proposed section 108A be refined, in consultation with the affected groups, to ensure that it provides only what is needed to accomplish the goal, while preserving essential protections for copyright owners.
1. Background
New technology provides expanding opportunities for visually
impaired readers who are computer-literate and computer-equipped to have
greater access to information and published works. Blind or partially sighted
readers can use technology-assisted reading tools such as speech synthesizers
and stand alone reading machines, refreshable braille displays, enlarged
screen displays, braille embossers and braille printers for creating braille
and print on the same page, and portable electronic note takers.
During the past few years,
national organizations serving blind and visually handicapped readers, including
Recording for the Blind (RFB) and the American Printing House for the Blind
(APH), have been negotiating with publishers to secure nonexclusive blanket
licenses for reproduction of new publications in various alternate formats,
particularly for textbooks adopted by state education departments. The formats
under consideration include braille, recorded and electronic formats (to be
used in braille printing and for use with personal computers), together with
equipment for refreshable braille, paper braille, screen character enlargement
and synthetic speech.
Additional responsibilities have recently been imposed
on school textbook publishers by newly enacted state braille bills. Approximately
thirty states have adopted various versions of these bills, which require publishers
to provide electronic versions of adopted textbooks in disk form to state education
departments in order to make these materials available in a computer-accessible
format capable of braille reproduction. These state laws place considerable
burdens on publishers because of the lack of standardized criteria.
2. Issues to be addressed
The Copyright Office perceives several problems in the
proposed new Section 108A. They involve: a lack of clarity of coverage for
works in digital format; the definition of the audience to be served as the "visually impaired";
the one-year waiting period; the inclusion of large type books; and the choice
of the term "non-profit organization" to identify the recipients of the exemption.
a. digitized format
The proposed amendment does
not clearly grant access to digitized versions of works as needed by blind
and visually handicapped readers. While the wording "other editions of previously
published literary works in forms intended to be perceived by the visually impaired" may
be interpreted to include versions of works that are distributed in an electronic
digital form accessible through adaptive equipment, as well as in other forms
not yet developed, the language is ambiguous. In order to avoid excluding
this audience from the benefits of computer-assisted technology, it would
be helpful to provide clarification in either the statutory language or the
legislative history.
At the same time, any statutory language added to the Copyright
Act to provide digitized versions of published works for eligible users must
be circumscribed appropriately to ensure that publishers' legitimate interests
are protected. In particular, digitized versions made accessible under this
provision must not be able to be retransmitted to noneligible users so as to
impact on existing markets. Representatives of visually handicapped readers
and publishers should work together to draft language that establishes a satisfactory
balance between access and protection.
We also note that it may be advantageous
to create a uniform national system for deposits in a digital repository for
such electronic text versions for use by visually handicapped users. Creation
of such a repository is under discussion by publishers and representatives of
the blind community, and could also entail creation of a national centralized
database listing all such digitized works.
b. "visually impaired"
There is a definitional
problem caused by the statutory language labeling the targeted audience as "visually
impaired." Other federal laws providing access to works for this audience, as
well as section 710 of the Copyright Act, utilize a different term, "blind and
physically handicapped," to define the class eligible for benefits. These
laws include the Pratt-Smoot Act, as amended, and the statutes authorizing
services provided by the National Library Service for the Blind and Physically
Handicapped (NLS/BPH) of the Library of Congress since 1931. See 2 U.S.C.
section 135a, as amended by P.L. 89-522.
Through the National Library Service, there
is already in place an extensive nationwide system for certification of eligible
readers, administered through a network of state and local libraries and
other agencies. Service is provided only to those "blind and physically handicapped"
readers who have been certified under federal regulations administered by NLS
as "unable to read standard printed materials" by reason of visual or physical
limitation. This broader class of eligible readers, going beyond the "visually
impaired," achieves the goals of the proposed legislation in a more inclusive
way. Those organizations currently producing reading materials and library
services for blind individuals also serve physically handicapped persons
unable to use standard print, with approximately 10% of NLS/PBH Library of
Congress eligible readers falling into the latter category.
In order to take advantage of
existing administrative structures and interpretations, and to avoid any confusion
with overlapping services, the Copyright Office urges that any changes enacted
in the copyright law to benefit the same community of readers reflect the same
definitional terms and criteria as the NLS program, rather than establishing
a separate class of eligible users.
c. one-year waiting period
The bills would grant
the exemption only after a waiting period of one year following first publication
of the work. This waiting period significantly reduces the value of the exemption.
Blind and physically handicapped readers have a legitimate need for prompt and
timely access as soon as possible after works become available to the general
reading public, and interest is likely to have declined substantially by a year
later. For many works, access would be provided too late to be of real benefit
to eligible readers. Textbook materials in particular are commonly out of date
within one to two years, superseded by new editions. In fact, the actual time
elapsed will be considerably longer: the one-year waiting period to ensure that
the publisher will not enter the market, plus the six to twelve month production
period that may be required to produce the work in special format. To insure
a more timely release of the work in alternative format, NLS and other agencies
producing reading materials for eligible blind and physically handicapped readers
may be forced to forego the benefits of new section 108A, and to continue their
present costly and time-consuming policy of requesting permissions from copyright
holders.
Moreover, for most of the formats covered by the exemption, eliminating
the one-year waiting period should not cause significant harm to copyright owners.
Given the economics of the blind and physically handicapped community (according
to some estimates, 80% of this community is unemployed and not current users
of commercially available copyrighted works), copyright owners do not now produce
editions for use by blind and physically handicapped readers; the market is
occupied by non-profit agencies.
In particular, there is no viable commercial
market for braille books in the United States, and production of virtually all
such publications is subsidized by the U.S. government.
As to audio books,
although there is a large and growing sector of publishers producing and distributing
audio books for the commercial marketplace, few, if any, of those commercially
produced audio books would meet the national standards required for reproduction
and distribution to the eligible readers of NLS/BPH.\6\
\6\ Audio books produced for the commercial marketplace are generally not suitable for use by blind and physically handicapped readers. Commercially produced audio books are often either condensations or dramatizations with sound effects, rather than faithful complete narrations of the printed originals. Furthermore, books narrated for the general audio book market lack the detailed verbal descriptions of all pagination and graphical materials, including tables, charts, illustrations and diagrams, which need to be described and represented in narrative form for the blind and physically handicapped.
Moreover, audio books recorded by NLS and other organizations serving blind and physically handicapped readers are now recorded at speeds slower than commercial recording speeds, requiring the use of special playback equipment available only to certified eligible readers. The works included in the special recorded versions are therefore not accessible to the general public, ruling out any competition with commercially recorded versions made available simultaneously by publishers. The year-long delay therefore seems unnecessary for these formats.
d. large type books
On the other hand, there is a large and growing
commercial market for books published in large print format for a general readership,
available through traditional publication distribution channels and widely purchased
by public libraries. And virtually none of the major government and non-profit
producers of alternative versions for blind and physically handicapped readers
prepare materials in large print. For these reasons, the Copyright Office recommends
excluding large type books from the exemption.
e. "non-profit organization"
Proposed section 108A makes the exemption
from liability available to "non-profit organizations" only. This term may
be both too broad and too narrow. It might be preferable to limit the non-profit
organizations covered by the exemption to those that specifically provide
reading and library services to blind and physically handicapped readers.
On the other side, more than 95% of the reading materials produced for blind
and physically handicapped readers in the U.S. is issued by federal, state
and local governmental units. We therefore recommend ensuring that appropriate
government agencies are covered, either explicitly in statutory language
or by a clarifying statement in the legislative history.
D. New Chapter 12: Copyright Protection Systems and Copyright Management
Information
1. Circumvention of copyright protection systems
The bills propose a new section 1201, which reads:
No person shall import, manufacture or distribute any device, product, or component incorporated into a device or product, or offer or perform any service, the primary purpose or effect of which is to avoid, bypass, remove, deactivate, or otherwise circumvent, without the authority of the copyright owner or the law, any process, treatment, mechanism, or system which prevents or inhibits the violation of any of the exclusive rights of the copyright owner under section 106.
The Copyright Office supports the concept of outlawing devices or services that defeat copyright protection systems. One of the most serious challenges to effective enforcement of copyright in the digital environment is the ease, speed and accuracy of copying at multiple, anonymous locations. In order to meet this challenge, copyright owners must rely on technology to protect their works against widespread infringement. But every technological device that can be devised for this purpose can in turn be defeated by someone else's ingenuity. Meaningful protection for copyrighted works must therefore proceed on two fronts: the property rights themselves, supplemented by legal assurances that those rights can be technologically safeguarded.
/7/ Current law does establish some liability for the sale of devices
that are used by others to infringe copyrights, under the doctrine of contributory
infringement. The standards developed by the courts are quite liberal from
the manufacturer's point of view, allowing the freedom to manufacture and
sell any device that "is widely used for legitimate, unobjectionable purposes
. . . [and is] capable of substantial noninfringing uses." Sony Corp. v. Universal City Studios, Inc., 464 U.S. 417, 442 (1984). Very few devices will be so narrow in potential application that their sale will support a finding of contributory infringement. Compare Vault Corp. v. Ouaid Software Ltd., 847 F.2d 255 (5th Cir. 1988) (no liability where copy protection defeating program could be used to enable purchaser to make lawful archival copies as well as infringing copies), with Sega Enterprises Ltd. v. MAPHIA,
857 F. Supp. 679 (N.D. Cal. 1994) (preliminary injunction issued against
vendor of special copiers, the "only substantial use" of which was to copy
copyrighted video games).
Conceivably the sale of a copyright protection defeating
device might qualify as "induc[ing], caus[ing] or materially contributing
to the infringing conduct of another." Gershwin Publishing Corp. v. Columbia Artists Management, Inc., 443 F.2d 1159, 1162 (2d Cir. 1971). Because this interpretation of contributory infringement may reach beyond current law, and because of the restrictive application of the doctrine in the context of equipment manufacture and sale, this body of law does not satisfactorily address the problem of copyright protection defeating devices.
We do, however, have some concern about the breadth of the
language of section 1202 as drafted. First is the reference to the forbidden
device's "primary purpose." "Purpose" is often difficult to prove, and which of several potential purposes is "primary" may not be evident. Second is the alternative standard, "or [primary] effect." It is possible that a device intended for entirely legitimate purposes may be put to use primarily to defeat copyright protection technology, or that some unrelated function of a device might unintentionally interfere with such technology. This latter danger is exacerbated by the fact that the technology protected is not only that which "prevents" infringement but also that which "inhibits" it. As a result, even a process which is not intended to prevent infringement but happens incidentally to make infringement more difficult to accomplish cannot be interfered with. Although the legislation includes an "innocent violation" defense
allowing the court to reduce or remit damages, it would be preferable to
define the offense so as not to potentially sweep within its scope legitimate
business behavior.
Another question raised by the provision is who has standing
to sue for a violation. In section 1203(a), the statute specifies that "any person injured" may
bring a civil action. Clearly this language could include others besides
the copyright owner. Even if the language were read restrictively to cover
only copyright owners, the result could be a multiplicity of suits, where
different rights in a work are owned by different parties or where the same
device can be used to defeat copyright protection systems used in connection
with an infinite number of copyrighted works.
Some have criticized this provision on the ground that it prohibits devices that make it possible for users to engage in lawful copying for legitimate purposes. They point out that a copy protection system may sometimes be circumvented in order to engage in an unauthorized exercise of rights that qualifies as fair use, such as decompilation in appropriate circumstances, or to gain access to material in the public domain. We understand these concerns, but do not believe that they undermine the justification for section 1201. It has always been a fundamental principle of copyright law that the copyright owner has no obligation to make his work available to the public. See Harper Row Publishers, Inc. v. Nation Enterprises, 471 U.S. 539 (1985). He may choose to keep it locked in his office, or to provide access only upon certain terms. Regardless of this choice, the law can make it illegal to break into his office, even if the ultimate object is to make a fair use of the work./8/
/8/ Section 1201 does include language intended to provide leeway for
devices that make possible such legally privileged copying. The phrase "without
the authority of the copyright owner or the law,il as explained in the
White Paper, is meant to indicate that there is no liability if the law
would authorizes the ultimate object of the circumvention. In other words,
if the primary object is permissible copying, either because of the operation
of an exception to the copyright owner's rights or because the work is
not protected by copyright, the sale of the device would also be lawful.
We have some doubt as to whether this language achieves the objective,
since as drafted, it appears to refer to the law authorizing the circumvention
itself, rather than the exercise of copyright rights. In any event, for
the reasons given above, we do not believe such an exception is necessary.
To some extent, these issues may be addressed through proper interpretations of the statute, guided by legislative history. Nevertheless, there is some risk that the uncertainties involved in the provision as drafted may chill developing markets. We therefore recommend that the language be narrowed in order to provide more certainty. A broad range of industries and user groups may be affected, and we urge that they work together to develop specific language that will avoid the pitfalls while accomplishing the legislation's goal. If the coverage can be properly calibrated, section 1201 should be a major step toward achieving a fully functional NII.
2. Integrity of copyright management information
The Copyright Office believes that the easy availability of information about the authorship, ownership and licensing terms of works will also be critical to the success of the NII. Such information will make it possible for the public to gain access to and enjoy works while respecting the rights of authors and other owners. If obtaining such information is difficult, people are more likely to forego the NII's benefits or resort to unauthorized uses. For these reasons, the Office is developing an electronic registration and recordation system with a rights management component that will allow such information to be collected and disseminated electronically.
We agree with the Working Group that legal protection for such information is necessary in order to ensure its accuracy. It is in everyone's interest, both owners and users of copyrighted material, to be able to rely on the information provided to facilitate identification and licensing. The proposed new section 1202 represents a reasonable approach to this goal: it does not mandate the provision of any particular item of information, but guarantees the integrity of whatever items are in fact provided.
The Copyright Act already contains a provision forbidding the alteration or provision of false information about a copyrighted work. This protection, however, is limited in scope, applying only to notices of copyright and to statements made in applications for registration. Accordingly, under current law, other types of information about a copyrighted work could be modified or deleted without liability. The proposed legislation would remedy this state of affairs.
We nevertheless have a few questions about section 1202,
primarily relating to its interaction with provisions of existing law. First,
the prohibited acts overlap with the criminal offenses set forth in section
506 of the Copyright Act, which share the same general goal of protecting
the integrity of copyright information. Section 506(a) makes it unlawful
for any person to, "with fraudulent intent, place[] on any article a notice of copyright or words of the same purport that such person knows to be false," or to publicly distribute or import for distribution, with fraudulent intent, any article bearing such false notice or words. Section 506(b) imposes criminal liability on "[a]ny person who, with fraudulent intent, removes or alters any notice of copyright appearing on a copy of a copyrighted work." To some extent, these sections would be superseded by the broader prohibitions of section 1202. Section 506 goes beyond section 1202 in at least two respects: it deals specifically with copyright notices, which include important publication dates; it also applies to representations made in applications for registration. One possibility would be to broaden the definition of "copyright management information" in
section 1202 to cover notices and applications, and to delete section 506.
In addition, the remedies provided for violation of section 1202 are disproportional
with those for violation of section 506; monetary penalties are considerably
higher, and prison terms are possible. Whatever policy judgments are made,
these provisions should be harmonized.
It also seems inconsistent to provide criminal penalties for violation of the integrity of copyright management information but not for the circumvention of copyright protection systems. If anything, it is the latter that appears to pose a greater potential threat to the economic interests of copyright owners.
Finally, we question whether the coverage of this provision is somewhat overbroad. Given the potential for substantial liability, and even felony criminal penalties, perhaps some exceptions should be provided. De minimis alteration, for example, or clarification or supplementation of the information provided by the copyright owner, arguably should not give rise to damages. Similarly, in a dispute over authorship or ownership, such as often occurs in the context of joint works or works made for hire, it may be inappropriate to impose liability when someone acting in the good faith belief that she has a valid legal claim alters copyright management information by adding or substituting her own name as author or owner.
Conclusion
The proposed amendments are a positive step in equipping the Copyright Act
to deal with current digital technology. The Copyright Office supports each
of the bills' provisions, with the caveats discussed above. We look forward
to working with you to resolve the issues that have been raised, in order to
move forward expeditiously with this important legislation.
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