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Libraries and Copyright: Big Wins in 2014 and Big Challenges Ahead for 2015

Libraries and Copyright: Big Wins in 2014 and Big Challenges Ahead for 2015
Posted by DPLA on January 21, 2015 in Guest Posts, News & Blog, Open Calls and tagged , , , .
A guest post from DPLA Legal Committee member, Dave Hansen, UNC Chapel Hill Law

In terms of copyright, 2014 was a big year for libraries. The highlights were the release of decisions in two major copyright cases on appeal, largely in favor of library uses and affirming the applicability of fair use to certain aspects of digitization. Other developments, such as the release of a new code of best practices in fair use of collections containing orphan works, have created opportunities for libraries and other memory institutions to make further progress on addressing copyright obstacles to digital access to their collections.

Before the first open committee call of the year for the DPLA Legal Committee (which is later today at 2:00pm Eastern), now is a good time for a short recap what we’ve seen over the last year and what we can expect in 2015.

To register for today’s open Legal Committee call at 2:00 PM Eastern, click here.

The first and maybe the most important development of 2014 comes in Authors Guild v. HathiTrust, a major copyright case before the Second Circuit Court of Appeals that was decided in June in favor of the HathiTrust Digital Library (a DPLA content hub with over 13 million digitized volumes). The suit was filed by the Authors Guild in 2011, largely in response to HathiTrust’s efforts to make it’s collections of orphan works more accessible. In its complaint, the Authors Guild objected to HathiTrust’s digitization project for that and several other reasons.

As it turned out, orphan works were not much of an issue in that case. The courts concluded that those claims were not ripe for adjudication because HathiTrust stopped its orphan works program and has no plans to continue it. Instead, most of the lawsuit focused on other uses of the HathiTrust collection, such as creating an indexed search of the contents of digitized books (and related research uses), full-text access for the blind and print-disabled, and preservation in digital formats.

HathiTrust initially prevailed in the suit before the district court for Southern District of New York, with that court finding that all contested uses qualified as “fair use” under the Copyright Act. In June 2014 HathiTrust won an even bigger victory when the Second Circuit Court of Appeals largely affirmed the ruling of the lower court.

While the HathiTrust case addressed only a subset of the copyright issues raised by library mass digitization, it still represents a major positive development for digital libraries like those that contribute to DPLA to enhance access to their collections. The case makes clear that library digitization for purposes of enhanced search and for full-text use by the blind are acceptable under fair use. While this short summary can’t do justice to the importance of the case, the Association of Research Libraries has done a great job explaining it. One of the best resources is a seven-page document prepared by Jonathan Band (ARL counsel) titled “What Does the HathiTrust Decision Mean for Libraries?”

The second major decision of 2014 came in Cambridge University Press v. Becker, which was decided by the Eleventh Circuit Court of Appeals. That case began in 2008 when Cambridge University Press, Oxford University Press and Sage Publications sued Georgia State University over faculty use of book excerpts scanned for use in electronic course reserves. After a lengthy trial, the district court in that case issues a painstaking, 300+ page opinion detailing why, in the vast majority of instances, Georgia State e-reserves practices fell within the bounds of Copyright’s fair use doctrine. While not everything in the district court decision represented a positive development for libraries, it was still an important victory, especially on more generally-applicable issues of the weight and importance of the nonprofit, educational use of the work in the fair use analysis, and the weight that the court placed on whether a digital licensed copy was made available by the publishers (if no license was offered, the court generally found that that favored Georgia State’s fair use assertion).

The publishers in that case appealed to the Eleventh Circuit Court of Appeals, and in November that court issued its decision. Formally, the Eleventh Circuit reversed the district court. But in the Eleventh Circuit’s reasoning for the reversal, it was clear that the vast majority of the principles contained within the district court’s analysis–for example, the importance of the nonprofit, educational purpose of the use–were preserved. Like HathiTrust, this decision has a lot to unpack that would be impossible to review here. The best summary and analysis I have seen comes from University of Minnesota Copyright Librarian Nancy Sims. You should know that this case is still active; the Eleventh Circuit recently rejected a petition to rehear the case, but it remains possible for either side to petition the U.S. Supreme Court to review the case.

Beyond litigation, one major development worth noting is the release of a new Statement of Best Practices in Fair Use of Collections Containing Orphan Works for Libraries, Archives, and Other Memory Institutions (disclaimer: I was on the team that helped draft this document). That document, endorsed by DPLA and several of its hubs, along with many other leading national libraries, archives, and other memory institutions, takes aim at helping libraries and archives address the longstanding issue of what to do with orphan works–i.e., works for which copyright owners are difficult or impossible to locate–especially when they are embedded in larger collations that libraries seek to digitize.

The Best Practices was released in December 2014 and discussed in an ALA-sponsored webinar. In February during Fair Use Week (February 23-27), the team that helped draft these best practices from American University and UC Berkeley will be hosting an event in Washington, D.C. (also webcast live) explaining the document, discussing situations in which it might be most useful, and fielding questions via a panel of experts about its application on the ground. More details to come on that.

While 2014 was a big year for library copyright issues in the courts, it also contained the beginnings of several important discussions about legislative efforts to revise copyright law. Over the course of the year the House Subcommittee on Courts, Intellectual Property & the Internet held a series of hearings on the Copyright Act with an eye toward possible revision. Among other topics, the subcommittee addressed the scope of fair use, and preservation and reuse of copyrighted works. In addition, the U.S. Copyright Office and the U.S. Patent & Trademark Office both held roundtable meetings addressing possible areas of legislative revision. More broadly, a major conference hosted by UC Berkeley’s Center for Law and Technology, titled “The Next Great Copyright Act,” addressed an even wider range of potential Copyright Act revisions.

If I had to pick the biggest challenge for the upcoming year for libraries in this area, it would be continuing library engagement with legislative and administrative efforts to propose changes to text of the Copyright Act itself. Similar hearings and other studies are likely to continue throughout 2015. Add on top of that efforts ramping up to create a library and archive copyright exceptions treaty through the World Intellectual Property Organization, and it will be a busy and difficult year in which librarians must make concerted efforts to have their voices heard on how legislation should be crafted to ensure better online access to library collections.  My hope is that the DPLA, along with many of the other organizations such as ALA and ARL, can continue to help keep us informed about issues like this on which librarians should speak up and present a positive agenda for reform.