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By Anandashankar Mazumdar
The ongoing dispute between Google Inc. and copyright owners regarding Google's mass digitization of books shows that the time is right for policymakers to take up the questions prompted by mass digitization, according to a report released Oct. 31 by the Copyright Office.
The hefty document—“Legal Issues in Mass Digitization: A Preliminary Analysis and Discussion Document,” provides an analysis of several issues related to mass digitization, including the rights of libraries and archives, fair use rights, use of orphaned works, and licensing.
The release of this document represented the third major action within a week on items listed in the Copyright Office's Oct. 25 two-year strategic plan(208 PTD, 10/27/11). Action against rogue websites was the first legislative priority identified in the plan and on Oct. 26, a bipartisan group of members of the House Judiciary Committee introduced the Stop Online Piracy Act (209 PTD, 10/28/11). Then, on Oct. 27, the Copyright Office issued a notice of inquiry regarding proposals to address the question of “small copyright claims,” another one of the items listed in the strategic plan.
Legal, legislative, and policy questions surrounding mass digitization were also addressed in the Copyright Office's Oct. 25 strategic plan document.
According to the analysis issued by the Copyright Office, the Google Book Search dispute has “sparked a public debate on the risks and opportunities that mass book digitization may create for authors, publishers, libraries, technology companies, the general public, and the corresponding legal framework.”
Although the Google dispute and other similar disputes have not been resolved, the report said that “there is sufficient information to undertake an intense public discussion about the broader policy implications of mass book digitization.”
The document began by reviewing the rejection of a proposed settlement of the Google Book Search dispute, which a federal district court found to go beyond the subject of the original class action for infringement and to interfere with the intellectual property rights of many authors not represented in the proceeding (56 PTD, 3/23/11).
The Copyright Office noted the court's acknowledgement “that the digitization of books and the creation of a universal digital library could be beneficial for copyright owners and users alike.” The document described the Copyright Office's “great interest” in the subject and its role in commenting on the settlements proposed in the Google Books case.
Indeed, Librarian of Congress James H. Billington and (then acting) Register of Copyrights Maria A. Pallante sent a letter dated April 1 to members of the Senate Judiciary Committee encouraging Congress to look into the issues surrounding mass digitization.
The Oct. 31 Copyright Office report's more comprehensive digitization suggested that it is important first to take a look at the practical experience of entities such as Google that have already made forays into the realm of mass digitization.
The document also offered a rundown of the stakeholders whose interests are implicated in any mass digitization project:
These parties include copyright owners, such as authors, publishers, photographers, and other visual artists, libraries of all types (public, private, nonprofit, for-profit, academic, and lending), archives, museums, technology companies, educators, other users or consumers of copyrighted works, and the general public.
An appendix to the document further described the affected parties as authors and visual artists, book publishers, libraries, archives, museums, collective management organizations, commercial entities including digitizers and aggregators, civil society groups, and subscription database providers.
A range of entities are currently involved in mass digitization projects at some stage of the process, whether planning, developing, or executing. Many of these projects will require cooperation of multiple stakeholders, the Copyright Office noted. Furthermore, there is no dearth of cooperation between not-for-profit entities and commercial entities in pursuing such goals, the report said.
For example, the Google Books project was based on partnerships with several of the world's most prestigious universities. Also, the Internet Archive worked with the Library of Congress and other government agencies to conduct its digitization project of public domain works.
“Congress may want to consider whether the nation's federal cultural institutions—the Library of Congress, the Smithsonian Institution, and the National Archives—should have a specific role in developing a national framework for mass book digitization projects,” the document suggested. Each of these entities is responsible for a considerable range of preservation of works that it would like to make more accessible to the public and have considerable experience in the field, the agency said.
Experience with ongoing digitization projects of all kinds has prompted numerous questions, the document noted:
To the extent that a digitization project captures [copyrighted works], Congress may want to consider whether the purposes and objectives of these projects or possible future projects are sufficiently important to the nation to warrant possible changes to the copyright law. In other words, is there a reason for Congress to encourage the digitization of copyrighted books by users groups, or should these activities be left to the marketplace and the copyright law as it currently exists?
Additional questions involve various digitization projects and stakeholder collaborations that implicate copyright owners' exclusive rights. For example, when should digitization require copyright [owners'] consent? Should the copyright law distinguish between nonprofit institutions or public agencies and private for-profit entities? If so, what limitations, if any, should be placed on the scanning and use of digitized content that results from nonprofit-commercial or public-private partnerships?
Furthermore, according to the report, it may be important to decide how works that are created in digital form in the first place (“born digital”) fit into the overall picture.
The report reviewed the various ways in which current law has an effect on mass digitization projects:
• Libraries and archives have an exemption from certain restrictions under 17 U.S.C. §108. However, the report notes that this exception “does not contemplate mass digitization.” Congress must consider to what extent Section 108 is implicated and any legitimate Section 108 activities should not be overridden. Similar legal provisions in other countries have led to projects in which governmental entities—such as the European Digital Library—are charged with the creation of digital libraries.
• The fair use doctrine, 17 U.S.C. §107, was asserted by Google as the justification for moving forward with its project without the authorization of copyright holders. This specific issue might not be decided on the merits in the context of that proceeding, the Copyright Office said. Other court decisions add up to the conclusion that it is uncertain exactly how the fair use doctrine applies to mass digitization, the agency said. Furthermore, this doctrine does not apply outside the United States.
• The legal status of orphan works also has a significant impact, the paper said. The Copyright Office noted recent efforts to get orphan works legislation through Congress and its own advocacy of such legislation. “If adopted, the proposed legislation on orphan works would greatly improve access to copyrighted works,” the agency said. However, at the time the legislation on the table was developed, inadequate consideration had been given to mass digitization. The paper suggested that Congress reconsider this legislation in the light of mass digitization.
• The report also reviewed the several types of licensing approaches that might be considered for mass digitization, such as direct licensing, voluntary and extended collective licensing, and statutory licensing.
The report concluded by noting that libraries, for-profit entities, and other entities are moving forward with mass digitization projects and that works covered by copyright protection are often included in such projects.
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