September 16, 1998
Hon. Orrin G. Hatch, Chairman United States Senate
Committee on the Judiciary
224 Dirksen Office Building
Washington, D.C. 20510
Re: Opposition to Sections 414 and 417 of H.R. 2281
Dear Mr. Chairman:
The four undersigned national library associations, on behalf of our seventy-five thousand collective members, have played an active role in this Congress consideration of the World Intellectual Property Organization treaties and their associated implementing legislation. We write today to ask that, two undebated, unexplained and unhelpful provisions of H.R. 2281 added to the bill on the day of its passage in the House be stricken when the House and Senate attempt to reconcile their respective versions of the Digital Millennium Copyright Act. Neither provision, we note, is implicated by or substantively related to the WIPO treaties themselves in any way.
Specifically, Section 414 of H.R. 2281 would strike language from the portion of the current Copyright Act that codifies the Fair Use Doctrine (Sec. 107) which has proved neither confusing nor contentious in the courts in the more than 20 years since Congress first crafted it. Libraries did not seek this late clarification and do not consider it to be helpful. Indeed, we are deeply concerned that courts could interpret the proposed statutory change to narrow this critical portion of the Copyright Act.
Similarly, Section 417 of H.R. 2281 would alter another pillar of American copyright law, the First Sale Doctrine, by amending Sec. 109 of the Copyright Act. The apparent intent of the proposed change is to overturn the Supreme Courts recent ruling in Quality King v. L'anza, thus curtailing or eliminating the parallel importation of many consumer products. By modifying the First Sale Doctrine, however, this second wholly undebated provision also may undermine the present legal basis of inter-library and patron lending of copyrighted materials.
More detailed comment on each of these extraneous provisions of the Digital Millennium Copyright Act is attached, Mr. Chairman. We would be pleased to provide any additional information that may assist you and the Senate's other conferees on H.R. 2281 to reject their inclusion in the final form of the bill.
Thank you for your assistance.
Duane E. Webster
Executive Director, Association of Research Libraries for
American Association of Law Libraries
American Library Association
Association of Research Libraries
Special Libraries Association
Hon. Patrick J. Leahy
Hon. Strom Thurmond
Section 414 of H.R. 2281: A Confusing Change to the Fair Use Doctrine
This provision makes what ostensibly is only a clarifying change to Section 107 of the Copyright Act. In fact, the effect of the change could be to gut the protections for educators and consumers that were built into the statutory formulation of the "fair use" doctrine back in 1976. The House Report (No. 941465) accompanying the 1976 Copyright Act states that "the reference to fair use 'by reproduction in copies or phonorecords or by any other means' is mainly intended to make clear that the doctrine has as much application to photocopying or taping as to older forms of use . . . " In deleting the referenced phrase, H.R. 2281 would confuse rather than clarify the law relating to the scope of this important doctrine. As a result, copyright owners would be given new legal tools to use against libraries and schools engaging in educational photocopying and against both individuals who tape broadcast programs for personal use and companies which supply hardware for noncommercial home taping.
This potentially drastic revision to the "fair use" doctrine has not previously been considered by the Senate. Nor, to our knowledge, has it been the subject of any hearings in the House of Representatives. It appeared for the first time as part of the final version of H.R. 2281 submitted to the House for action on the suspension calendar, and even on that occasion no reference was made to it in any of the floor statements of the legislation's sponsors. We urge you to reject this controversial provision.
Section 417 of H.R. 2281: Drastic Change to the First Sale Doctrine
In the process of changing Section 109 of the Copyright Act, Section 417 of H.R. 2281 overturns a recent unanimous Supreme Court decision, Quality King v. Lanza, in which the Court held that the prohibitions relating to importation of copyrighted works found in 602(a) of the Copyright Act were subject to the limitations embodied in Section 109(a) of the Act, the First Sale doctrine. The First Sale doctrine provides that the copyright owners right to control distribution of copies only extends to the first-sale. It is the basis for standard practices such as used book markets, library lending, and exchanges of copyrighted works between friends and family.
The primary purpose of Section 417 of H.R. 2281 may be to overturn the Lanza decision and grant U.S. copyright holders a limited right to control commercial importation and re-sale of works that have been manufactured in the U.S. but sold overseas. While this step alone is controversial and has had no Congressional hearings, Section 417 does much more than provide control over parallel importation of works. If Section 417 is adopted, distribution of a book or other copyrighted work within the U.S. through sale, lending, lease, or gift without permission of the copyright holder might constitute an infringement of copyright, unless the work had originally been distributed in the United States. Section 417 includes no exceptions to this rule.
Unfortunately, there is no easy way to know which works were originally distributed within the United States! Therefore, under a strict statutory interpretation this rule could immediately expose libraries to claims of infringement for continuing standard practices of inter-library exchange and lending to patrons. Whether a court would interpret the statute in this way is not clear. Although the Lanza case was decided strictly by interpretation of the Copyright statute, there is some Constitutional basis for the First-Sale doctrine and a court may find a way to limit the negative consequences.
Nevertheless, we think it unwise to set the stage for a Constitutional battle in the courts. The change sought by Section 417 is not a clarification as presented in the text of H.R. 2281. It is a fundamental change to copyright law. At the very least such a change should not occur without detailed analysis of its impact, public debate to bring it to the attention of potentially affected constituencies, and careful consideration of whether this is the best way to achieve the goals of Congress on this issue, whatever they may be.