ARCHIVED: Reply Comments of Library Associations on the Comments on Notice to Libraries and Archives

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Before the Copyright Office
Library of Congress
Washington, D.C.

In the Matter of Notice to Libraries
and Archives of Normal Commercial
Exploitation or Availability at a
Reasonable Price
Docket No. 98-13


On behalf of American Association of Law Libraries, American Library Association, Association of Research Libraries, Medical Library Association, and Special Library Association, collectively referred to as the "Libraries", we submit these reply comments in connection with regulations proposed by the Copyright Office to implement the library and archive exception of the Sonny Bono Copyright Term Extension Act and the established Notice to Libraries and Archives (the "Notice") under the Copyright Act, 17 U.S.C. Section 108(h).

The Libraries' Reply Comments will address filings submitted by Motion Picture Association of America ("MPAA"), American Society of Composers, Authors and Publishers ("ASCAP"), National Music Publishers' Association ("NMPA") and Association of American Publishers ("AAP"), collectively the "Content Parties" and North Carolina State University Libraries ("NCSUL") and The State Education Department, The University of the State of New York ("NYSED").

  1. Content Parties Understate Importance of Information in Notices
    1. Notice Is Central to Libraries and Archives Exercising Their Right to Exception with Regard to Particular Work

      Content Parties urge that the Copyright Office should scale back the proposed Notice and, in particular, that it should require less information and eliminate signing on penalty of perjury. Reflecting a common theme, AAP believes that the "Interim Regulation makes the Act's 'notice' option so complicated and burdensome for copyright owners and their agents that, contrary to the clear intention of the statutory provision, few notices will be filed with the Copyright Office'." AAP at 1.

      By contrast, the Libraries, as well as NSCUL and NYSED, believe certain additional information should be provided, for example, where a copy of a work may be obtained, its format, and, in the case of untitled works, a photograph to allow more accurate identification. Under the statute, the Notice serves a central function. As described by one of the principal Content Parties, ASCAP:

      The Notice provision is not merely a mechanism for protecting a copyright owner's rights; it serves as a benefit to libraries and archives by saving them the time and expense of a reasonable investigation since, presumably, if a copyright owner's representations (under penalties of perjury) about a work's commercial viability are correct, there will be not need for further inquiry. ASCAP at 4.

      The Libraries agree with that perspective. See also, NMPA at 4 ("it is in the best interests of both copyright owners and libraries and archives for Notices to be filed"). The purpose of the Notice is quite simple: it serves as an alternative basis by which qualifying libraries and archives can know whether a copyrighted work is within or without the exemption in Section 108(h). In effect, it establishes the factual basis to conclude that the works identified in the Notice are commercially exploited or subject to availability at a reasonable price. In applying the statutory exception, libraries and archives must take an owner's statement at face value. It is reasonable that since the Notice trumps any investigation, it should come with requirements of clarity, accuracy, and the filer of the Notice should understand the seriousness of the submission. In the Libraries' view, the Copyright Office's proposed Notice is appropriate to the task.

      As to those Content Parties who complain that the information required in the Notice is too extensive, the Libraries believe they greatly overstate their case. The essential information in the Notice -- name of author and owner, title and edition of work, year of publication and registration, contact persons and whether others holds rights -- hardly constitutes "burdensome" details. The Libraries submit that if an owner cannot provide this information, it would be hard-pressed to establish exploitation and availability.

      Even more to the point, as the Copyright Office knows, it is these very same Content Parties that pressed for creation of the Copyright Management Information ("CMI") in the Digital Millennium Copyright Act ("DMCA"). With passage of DMCA, the Copyright Act now protects CMI with civil and criminal sanctions. Much of the information in the Notice overlaps with CMI. It is, therefore, disingenuous for Content Parties to complain that the Notice, which will assist libraries and archives in determining their right to use works under the new exemption, is so complicated and burdensome for copyright owners, after having led the charge for CMI in the last Congress.

    2. "Normal Commercial Exploitation" and "Availability at Reasonable Price" Not Readily Apparent

      Another common theme asserted by MPAA and ASCAP is that the necessary facts are readily available in the marketplace without resort to the Notice. However, the Libraries know that, even for skilled researchers, it can be time consuming simply to identify the owner of a copyrighted work, not to mention whether a particular work is subject to "normal commercial exploitation" and is "available at a reasonable price." Since covered works include not just familiar books and films (for which Notice may not be needed), but also tens of millions of forgotten works, such as anonymous correspondence, publications decades out of print, fragments of 16 mm film, individually authored manuscripts and untitled photographs, it is sophistry to suggest that the identity and location of a vast majority of any category of works is "easily determined."

      What is clear is that an adequate Notice is a very valuable resource tool, which will help facilitate an understanding of the legal status of a work. Absent a Notice, a library or archives is left to its own resources to conduct a "reasonable investigation." The Libraries will not prejudge what is required to make such a determination in any particular case; however, if a reasonable investigation fails to disclose that a work is subject to normal commercial exploitation or available at a reasonable price, then libraries and archives are allowed to make use of it without risk of penalty. As ASCAP and NMPA make clear, it is in the interests of owners as well as libraries and archives that copyright proprietors file properly prepared Notices.

    3. Section 108(h) is Important Public Policy

      MPAA would have the Copyright Office actively discourage the filing of Notices:

      In fact, the Copyright Office should very prominently highlight its expectation, and the expectation of the Congress that notices need not, and will not, be filed for all works in their extended term. Copyright owners should be discouraged from filing notices unless there is a real questions as to whether libraries and archives can determine on the basis of reasonable investigation that a work is being exploited or is available at a reasonable price. MPAA at 5.

      MPAA would vigorously downplay the importance of the Notice. The issue is not whether Notice is required or not -- clearly it is not. It is a voluntary submission intended, again in ASCAP's and NMPA's words, to help both owners and libraries and archives. However, if it is sufficiently informative and prepared under conditions spelled out by the Copyright Office's regulation that make the filer understand the significance of its action, then it should obviate the need for the statutory "reasonable investigation." Thus, rather than being a legislative afterthought, the Notice is vital to effective use of the exemption. Like MPAA, the Libraries were active participants throughout the legislative process on the term extension act, and from their perspective the exemption is crucial to the compromise that forged the justification for expanding the copyright term. It reflects a policy determination of the U.S. Congress that certain copyrighted works covered by the term extension should be available to libraries and archives for stated public purposes.

      Bringing that perspective to the analysis of the proposed Notice, the Libraries agree with the original format and design of the Copyright Office's regulations: reasonable details are essential to assure that the works covered are indeed outside the exemption. If an owner believes the Notice requirement is too strict, because information respecting its work is readily accessible to a reasonable investigation, then no filing is required. However, if the relevant information is not "easily determinable," then the Notice will be useful for all concerned. The Copyright Office should encourage the filing of Notices, but at the same time insist that the Notices be accurate and submitted with appreciation of their importance.

    4. Requiring that the Notice be Signed on "Penalty of Perjury" is Appropriate

      Those Content Parties who suggest that "penalty of perjury" is too severe need to understand -- as ASCAP acknowledges -- the importance of the requirement: "presumably, if a copyright owner's representations (under penalties of perjury) about the work's commercial viability are correct, there will be no need for further inquiry." ASCAP at 4 (emphasis supplied). That is the crucial point. Since the Notice prevents the exemption from taking effect, it should be submitted only with full awareness of its import. Penalties should attach to those who mislead the Copyright Office and the public with regard to a statutory exemption. If an owner cannot make the assertion under the terms set forth in the regulations, then it should not file any Notice. Put another way, if the copyright owner cannot vouch with knowing confidence about the facts in the Notice, who can?

  2. Mere Availability of Work for License Does Not Meet Test of "Normal Commercial Exploitation"

    In commenting on why they believe Notices need not be filed for many works, ASCAP points out that its website and source books list works "available for license." In its view, merely listing of such works suffice as "normal commercial exploitation" for purposes of this exemption. The Libraries disagree. While relevant to a "reasonable investigation," unless an owner (or its licensing agent) can identify where a copy of a work may be acquired, there should be no presumption that the requirement of the statute has been met.

    As the Libraries at 5-6, NYSED at 1 and NCSUL at 2 stated in their comments, the Copyright Office's final Notice should require filers to provide "access" information. As stated by the Libraries in their original comments, it would be a perversion of the exemption to urge that "normal commercial exploitation" occurs for purposes of this special and narrow exemption if a copy exists only in a library and the owner does not even know how to locate it.

  3. Regulations Should Recognize "Safe Harbor" for Use of Work after Reasonable Investigation

    The Libraries concur with the suggestion of NCSUL that any determination made based on a reasonable investigation that none of the conditions in Section 108(h) apply should have a minimal period of protection. However, the Libraries would modify NCSUL's suggested solution because they believe that protected period should be at least one year after actual notification by an owner to the library or archive that the work is in fact subject to normal commercial exploitation or is available at a reasonable price. The statute does not impose upon the library or archive any obligation to continue its investigative research or to periodically research the filing of Notices. Once the statutory investigation is complete, the library or archive may then invest its resources to use the work. That investment should be respected, and absent actual notification that the use impinges on the commercial exploitation of the owner, no immediate obligation to "undo" the use is imposed. A reasonable period of use protected against infringement claims should obtain.

  4. Notice Provision and Other Requirements Do Not Violate Berne Convention

    NMPA cautions that the Notice and related requirements may be forbidden "formalities" under Article 5(2) of the Berne Convention. The Libraries disagree. Filing the Notice is purely a voluntary act that simply provides information to qualified institutions on the commercial exploitation and availability of a work. It is not a formality to the enjoyment of copyright rights. Those who do not file enjoy the full copyright term, just as those who do file. Further, the fact that Congress determined that a limited exception should apply to certain uses by libraries and archives is no greater an imposition on Berne obligations than other statutory exemptions, including fair use, library preservation and educational uses. NMPA cites no authority in U.S. or international law that would suggest the contrary.

  5. Miscellaneous Matters

    Regarding ASCAP and NMPA suggestions that an agent should be allowed to substitute for an owner in the filing, the Libraries do not object to that proposal; provided that, if someone has power of authority to execute agreements for exploitation of rights, then that person should be entitled to represent the owner in filing the Notice. However, all the terms of the Notice and related regulations, including the limitations on group filings, should apply. Use of an agent should not be an excuse for aggregating works differently than as set forth in the interim regulations. Moreover, if an agent files the Notice, then that person should affirmatively state the basis upon which authority to file exists and do so under penalty of perjury. The latter requirement is particularly important the further removed one is from the actual owner.

    As to the filing fee, in light of the Copyright Office's determination that the filing fee for registration should be $30 (rather than $50 as originally proposed), the Libraries believe that the filing fee for the Notice should also be $30.

  6. Conclusion

    The statutory exemption in Section 108(h) of the Copyright Act is essential to the balance that was struck by Congress in adopting the term extension legislation. The Copyright Office has properly interpreted the importance of the Notice provision to the legislation and establishes for all interested parties -- libraries, archives and owners -- a reliable system of information about the works. The Libraries urge the limited changes they proposed in their initial comments and those of others endorsed in this reply should be included in the final regulations.

In sum, for the reasons spelled out in these reply comments, the Libraries believe that the criticisms of the Content Parties should not deter the Copyright Office from establishing an accurate, effective and reliable notification system under the statute.

Respectfully submitted,

American Association of Law Libraries
American Library Association
Association of Research Libraries
Medical Library Association
Special Libraries Association

By Arnold P. Lutzker, Esq.

Dated: April 1, 1999

Arnold P. Lutzker, Esq.
Lutzker & Lutzker LLP
1000 Vermont Avenue, N.W.
Washington, D.C. 20005