An equitable balance between the rights of information users and the rights of copyright owners and licensors is essential to the free flow of information. Copyright laws should support fair use, first sale, and library exemptions that allow law libraries to provide access to copyrighted materials, make, distribute, and preserve copies under specific circumstances, and lend materials. In addition, copyrighted materials should enter the public domain when their copyrights expire. When information is in the public domain, licensing regimes should not impose barriers to the access or use of information.
Libraries rely on the principles of the fair use exception as one safeguard for many common library practices, such as course reserves, routing, interlibrary loan, etc. Under the existing copyright regime in the United States, fair use (codified at § 107 of Title 17 in the United States Code) is an exception to the protection of a content creator’s exclusive right to use, sell and/or license their work product. AALL strongly believes that copyright law should preserve fair use and other user rights promoting the dissemination of information and ideas.
First Sale Doctrine
The first sale doctrine (codified at § 109(a) of the U.S. Copyright Act) creates a secondary market for copyrighted materials without a copyright owner’s permission to dispose of the article. The doctrine, allows the owner of a copy “lawfully under this title” to sell or otherwise dispose of the copy without the copyright owner’s permission.” AALL supports the first sale doctrine because it allows libraries to lend materials to their patrons.
Library Exemption (Section 108)
Section 108 (codified at § 108 of the U.S. Copyright Act) provides important exemptions for libraries and archives to make and distribute copies of works for purposes such as interlibrary loan, patron use, and preservation without the permission of the copyright holder. The purpose of the copying or distribution cannot be for direct or indirect commercial advantage. Section 108 specifies very detailed requirements for making and distributing copies. AALL supports revisions to Section 108 that would update the Copyright Act’s balance between the rights of creators and copyright owners and the needs of libraries in the digital age.
A Section 108 Study Group of copyright experts was convened in 2005 by the Library of Congress and the U.S. Copyright Office. The mission of the Study Group was to prepare findings and to make recommendations for possible updates to the law in response to technological change. The Section 108 Study Group held its final meeting in January 2008 when it delivered a Final Report, which was intended to serve as a basis for recommendations to Congress and as a basis for drafting future legislation. The Final Report’s recommendations included suggestions for extending Section 108 eligibility to museums, making exceptions for web archiving, and expanding libraries permissions for digital preservation of at-risk published works as well as for more secure preservation of digital materials. Section 108 has not been amended since the release of the Study Group’s Final Report.
Copyright Office Modernization
A chief objective of the modernization efforts is to create an enterprise copyright system, a user-friendly, integrated platform that will include online recordation of copyrights and improvements in recording changes in copyright ownership. The Copyright Office is also working to provide comprehensive access to public records, including those housed within legacy systems and historical records that are not easily accessible to the public. As part of this effort, the Office will digitize pre-1978 entries not currently available in its online public catalog.
Other modernization efforts include:
- A limited pilot of its new online recordation system for invited users. A broader pilot is expected to follow.
- Outreach to stakeholders to collect input on eleven registration practices and two issues: how to implement a system that would reflect post-registration amendments to rights and permissions as well as unique identifier information, and the display of a low-resolution or incomplete portion of registered work to enhance the public record. The Copyright Office recently issued a statement of policy and notification of inquiry, 85 FR 12704 (March 3, 2020) on this matter.
Orphan works are materials, including books, photographs, and film, for which the copyright holder is difficult or impossible to identify. Because the copyright term now extends beyond the lifetimes of original creators, copyright for works may pass to unknown persons and require a great deal of research to track down.
Many issues fall under the umbrella of copyright, including digital rights, licensing, and database protection.
ISSUE BRIEFS AND REPORTS
- Issue Brief, Exemptions for Schools and Libraries in the Anti-Circumvention Provisions of the Digital Millennium Copyright Act (May 2020)
- Copyright Committee Poster: Copyright and Non-Humans (July 2018)
- Comments to the U.S. Copyright, In response to the Proposed Rule on Initiation of Procedures and Related Procedures before the Copyright Claims Board (October 20, 2021)
- Comments to the U.S. Copyright Office, In response to the Proposed Rule on Small Claims Procedures for Library and Archives Opt-Outs (September 29, 2021)
- Comments to the U.S. Copyright Office, In response to the Notice of Inquiry on the Copyright Alternative in Small-Claims Enforcement (CASE) Act Regulations (April 23, 2021)
- Comments to Senator Thom Tillis, Regarding the Digital Copyright Act of 2021 Discussion Draft (March 5, 2021)
- Letter to Register of Copyrights Shira Perlmutter, Congratulating her on her appointment as the new Register of Copyrights (October 27, 2020)
- Statement for the House Judiciary Committee hearing record, Copyright and the Internet in 2020: Reactions to the Copyright Office’s Report on the Efficacy of 17 U.S.C. § 512 After Two Decades (September 30, 2020)
- Petition to the U.S. Copyright Office for a New Exemption Under 17 U.S.C. § 1201, Modification of the exemption concerning the accessibility of literary works distributed electronically (September 8, 2020)
- Comments to the Library of Congress, Librarian of Congress Seeks Public Input Regarding the Next Register of Copyrights (March 16, 2020)
- Comments to the United States Patent and Trademark Office, Request for Comments on Intellectual Property Protection for Artificial Intelligence Innovation (84 F.R. 58141, Docket No. PTO-C-2019-0038) (January 7, 2020)
- Comments to the U.S. Copyright Office, Registration Modernization: Notification of Inquiry (January 14, 2019)
- Comments to the United States Government Publishing Office, Copyright Information in GPO Bibliographic Records (August 23, 2018)
Georgia V. Public.Resource.Org Inc.
In 2013, Public.Resource.Org purchased, scanned, and posted online all the current volumes of the print Official Code of Georgia Annotated (OCGA). In 2015, the State of Georgia sued Public.Resource.Org in the U.S. District Court for the Northern District of Georgia and received judgement in the State’s favor, finding that because the annotations formally lack the force of law, they are not in the public domain. Public.Resource.Org appealed to the U.S. Court of Appeals for the Eleventh Circuit. The Eleventh Circuit reversed the judgement, holding that Georgia cannot assert a valid copyright interest in any part of the OCGA. The State of Georgia then appealed to the Supreme Court, and Public.Resource.Org responded, maintaining that the State of Georgia was wrong on the merits but that the Court should grant certiorari to clarify how courts should analyze whether a given work is an uncopyrightable government edict.
The Supreme Court granted cert in June 2019 and heard oral argument on December 2, 2019 (Docket No. 18-1150).
On April 27, 2020, the Supreme Court issued its opinion in the case, finding that the annotations to the Official Code of Georgia Annotated are not eligible for copyright protection.
- Amicus brief, In support of respondent, State of Georgia, et al. v. Public.Resource.Org, Inc. (October 16, 2019)