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Copyright News 2006

December 20, 2006

109th Congress: Year-End Status, December 2006

The 109th Congress considered but did not complete action on the following bills. We anticipate that we will see most of the bills reintroduced in the 110th Congress.

(More information on each of these issues and legislative actions can be found on these Copyright Web pages. Just click on each subject heading to be taken to that issue's page.)

"Digital Media Consumers’ Rights Act of 2005" (DMCRA) (H.R. 1201)
This “fair use” bill was aimed at, among other things, amending Section 1201 of the Digital Millennium Copyright Act (DMCA) to allow bypassing a technological lock that controls access to and use of a copyrighted work - if the circumvention does not result in infringement of the work. 

"Orphan Works"
The House of Representatives’ Orphan Works bill would have amended the Copyright Act to allow use of copyrighted works whose owners are difficult or even impossible to find.  The thrust of the bill is that remedies for infringement of a copyrighted work would be limited if the user (the alleged infringer) had made a reasonably diligent, good faith search to locate the owner of the work but was unable to find the owner.  Libraries are very supportive of legislation to address this problem. 

"Broadcast Flag"
S. 2686, the large and complex Communications Act of 2006, included a “Digital Content Protection Act” to give the FCC authority to reissue its rule to require that all digital electronic devices, such as TV sets and personal computers, include code (known as the "broadcast flag") that accompanies digital TV signals to prevent redistribution of the digital content over the Internet.  There was ambiguous language in the broadcast flag provision about exceptions for educational and other uses along the lines of fair, thus we were not disappointed when the larger bill failed to be acted upon. 

Government Information/Open Access to Research
A Senate bill, S. 2695, the “Federal Research Public Access Act of 2006," would require Internet access to articles reporting on federally funded research.  We expect to see the bill reintroduced in the Senate as well as a House version introduced in the 110th Congress.

December 4, 2006

DMCA Section 1201 Anti-Circumvention Rulemaking

The Librarian of Congress issued a rule on November 27, setting out six classes of copyrighted works that will be subject to exemptions for the next three years from the Digital Millennium Copyright Act’s prohibition against circumvention of technology that controls access to a copyrighted work.  The exemptions will be in effect for the next three years (through October 27, 2009).  One of the new classes of works will allow film and media studies professors to make compilations of film clips for classroom instruction.

Section 1201 of the 1998 DMCA makes it illegal to circumvent a technological protection measure employed to restrict access to or distribution of copyrighted material. Violators of the anti-circumvention provision are subject to civil and criminal penalties.  At the same time, however, the law provides that there can be exemptions from the prohibition for users of "classes of works" who would be "adversely affected by virtue of such prohibition in their ability to make non-infringing uses" of those works. 

The Library Copyright Alliance and the Music Library Association filed comments with the U.S. Copyright Office in December 2005, requesting two new exemptions along the lines of those just issued by the Librarian, plus a renewal of the four exemptions that were granted in 2003 during the previous rulemaking.  For more background on the triennial rulemaking procedure, and on the new rule, go to ALA’s DMCA Section 1201 web page. 

Public Roundtable on January 31, 2007, on Copyright Exceptions for Libraries And Archives

The Library of Congress convened a “Section 108 Study Group,” starting in April 2005, to prepare findings and make recommendations to the Librarian of Congress for possible alterations to the copyright law that reflect current technologies.  The group is named after the section of the U.S. Copyright Act that provides certain exceptions for libraries and archives.  Several representatives of the library community are members of the Study Group. 

The Study Group is reaching out to the library, archives, rights-holder, and creative communities for input on recommendations for revising the current library and archives exceptions.   As part of that process, the Study Group will host an all-day public roundtable – on Wednesday, January 31, 2007, at DePaul University College of Law, Chicago, Illinois - for interested parties to offer suggestions and comments on how best to revise these exceptions for the digital era. 

Requests to participate in person must be made in writing and received by the Section 108 Study Group by 5:00 p.m. E.S.T. on January 12, 2007.  You can also submit written comments.  For additional details on the issues to be discussed and on how to participate in person or in writing, please refer to the Federal Register notice, the Section 108 Study Group website and the ALA Section 108 web page.

September 27, 2006

“Orphan Works”

The “Orphan Works Act of 2006,” H.R. 5439, was introduced in May, as a result of efforts by libraries, publishers, the U.S. Copyright Office and other groups to amend the copyright law to deal with works whose owners are difficult or even impossible to find.   The thrust of the bill is that remedies for infringement of a copyrighted work will be limited if the user (the alleged infringer) had made a reasonably diligent, good faith search to locate the owner of the work but was unable to find the owner. 

The bill was marked up by the House Judiciary Committee’s Subcommittee on Courts, the Internet, and Intellectual Property subcommittee in May and referred to the House Judiciary Committee.   Even though libraries have concerns with some aspects of the bill, we supported it because we believed that, if enacted, H.R. 5439 would substantially alleviate the orphan works problem, particularly for libraries. 

In a disappointing move in late summer, the orphan works bill was combined with two other bills dealing with online music licensing and “enhanced” criminal copyright enforcement to form the larger and more complicated “Copyright Modernization Act of 2006,” H.R. 6052.  Withdrawn three times from scheduled markup by the House Judiciary Committee (most recently on September 27), the bill will not move forward in the current congressional session.  There is no companion Senate bill.  Libraries will work on the reintroduction of an orphan works bill in the new Congress next year.

More information and background about orphan works is available on these copyright pages.

Open Access to Research

On September 26, legislation to provide for a sweeping overhaul of the National Institutes of Health (NIH) - the first of its kind in 13 years - included key report language underscoring Congressional oversight to actively monitor participation rates and overall effectiveness of the NIH's Public Access Policy.  The NIH Reauthorization Bill, authored by House Energy and Commerce Committee Chairman Joe Barton, passed the House of Representatives on Tuesday, September 26. 

The Alliance for Taxpayer Access (ATA), of which ALA is a member, reports that the importance of the public access policy was brought into focus as well at last week's markup of the bill, when Congressman Mike Doyle of Pennsylvania echoed concerns about the meager participation rate - less than five percent - under NIH’s current voluntary policy.  Committee Chairman Joe Barton responded during markup, telling Doyle he shares many of his concerns regarding the function of the public access policy and pledging to work with the Congressman to implement reform measures.

More information and background about open access issues is available on these copyright pages.

July 24, 2006

Libraries Join EFF on Brief in Digital Copyright Case that Puts Linking at Risk

On July 20, the Library Copyright Alliance (LCA) joined with the Electronic Frontier Foundation (EFF) in filing an amici curiae (friends of the court) brief (PDF) in the U.S. Court of Appeals for the Ninth Circuit in a case concerning critical digital copyright issues.  The LCA is a coalition of library groups consisting of the American Association of Law Libraries, the American Library Association, the Association of Research Libraries, the Medical Library Association and the Special Libraries Association.

The suit against the Internet search company Google by the adult entertainment publisher Perfect 10 claims that Google’s Image Search service violates copyright law by indexing Perfect 10 photos posted on unauthorized websites, then making and delivering thumbnail images of those photos in its search results. Perfect 10 also contends that Google should be held liable for any copyright infringement that occurs on sites that Google links to.

The case is on appeal from a lower court ruling issued in February 2006 that ordered Google to remove links to certain websites containing Perfect 10 photographs pending the outcome of the case. Experts, however, widely viewed the ruling as a victory for Google, as the court rejected many of Perfect 10 arguments.

EFF’s Senior Intellectual Property Attorney Fred von Lohmann, who wrote the amici brief, explained: “Perfect 10 wants to hold Google responsible for the misdeeds of the websites it links to. No search engine could survive if that were the rule, nor, for that matter, could most bloggers or other web publishers. If Perfect 10 succeeds in convincing the court that in-line linking and framing of images constitutes a public display or distribution of copyrighted work, then millions of web publishers and bloggers will suddenly be on the wrong side of copyright law -- as well as the millions of web users who may follow a link to a website with infringing content.”

More information and analysis of the case, as well as briefs that have been filed, can be found at EFF. The appellate court is not likely to issue a decision for several months.

ALA Passes Resolution in Support of Open Access Legislation:
Federal Research Public Access Act, S. 2695

Sen. John Cornyn (R-TX) and Sen. Joseph Lieberman (D-CT) introduced the “Federal Research Public Access Act of 2006” in May.  The bill, S. 2695, requires federal agencies that fund over $100 million in annual external research to make electronic manuscripts of peer-reviewed journal articles stemming from their research publicly available via the Internet within six months of publication.

Increased access to federally funded research accelerates the pace of discovery and innovation and fosters economic growth. It is critical that this new research be readily available to physicians, researchers, and members of the public. The public includes those who are not affiliated with or who are working in locations remote from libraries that subscribe to increasingly expensive journals and databases developed from federally funded research.

At its Annual Conference in June 2006, the American Library Association’s Council passed a Resolution (PDF) in support of FRPAA.  As the resolution notes, the federal government invests $55 billion annually in scientific research, with the National Institutes of Health (NIH) portion accounting for one-third of that, resulting in over 65,000 journal articles published annually. During tight budgetary times, this legislation will help ensure all government departments and agencies that invest significant sums in research will achieve a greater return on their and the taxpayers' investment.

For details of the bill, go to  the Alliance for Taxpayer Access, a coalition to which ALA belongs and which supports reforms that will make publicly funded research accessible to the public.

Contrary to some claims, S. 2695 is not a threat to journals and the peer review process. The Federal Research Public Access Act contains two key provisions that protect journals and the peer review process:

• A delay of up to six months in providing access to articles via the public archive (versus immediate access for journal readers).
• Inclusion in the public archive of the author’s final manuscript rather than the publisher’s formatted, paginated version preferred for citation purposes.  

A related bill whose aim is to speed access to biomedical research is S. 2104, the American Center for Cures Act of 2005. (PDF)  Introduced in December 2005 by Senators Joe Lieberman (D-CT) and Thad Cochran (R-MS) to establish the American Center for Cures within the National Institutes of Health (NIH), the bill includes a provision that would help to make taxpayer-funded biomedical research available to all potential users. 

Please go to ALA’s Legislative Action Center to send a message to your Senator, asking him or her to co-sponsor these bills.  After you log in to the site, you will click first on “Federal Issues” and then “All Federal Issues.”

May 25, 2006

“Orphan Works” legislation

On May 22, Rep. Lamar Smith (R-TX), chair of the House Judiciary Committee’s Subcommittee on Courts, the Internet, and Intellectual Property, introduced H.R. 5439, the “Orphan Works Act of 2006.” The bill was marked up by the subcommittee on May 24 and referred to the House Judiciary Committee. The thrust of the bill is that remedies for infringement of a copyrighted work will be limited if the user (the alleged infringer) had made a reasonably diligent, good faith search to locate the owner of the work but was unable to find the owner. See the Library of Conress's THOMAS web site for the text of the bill. There is not yet a Senate version of the Orphan Works Act of 2006.

Open Access to Research

On May 2, Sen. John Cornyn (R-TX) and Sen. Joseph Lieberman (D-CT) introduced the “Federal Research Public Access Act of 2006.”  The bill requires federal agencies that fund over $100 million in annual external research to make electronic manuscripts of peer-reviewed journal articles stemming from their research publicly available via the Internet. The following agencies have extramural budgets in excess of $100 million and under this legislation would be required to make their research publicly accessible: Department of Agriculture, Department of Commerce, Department of Defense, Department of Education, Department of Energy, Department of Health and Human Services, Department of Homeland Security, Department of Transportation, Environmental Protection Agency, National Aeronautics and Space Administration, and the National Science Foundation.

For details of the bill, click here, the web site for the Alliance for Taxpayer Access, a coalition to which ALA belongs and which supports reforms that will make publicly funded research accessible to the public.

U.S. Supreme Court Rules in Patent Case
eBay v. MercExchange

On January 26, 2006, ALA joined in filing an amici curiae (friends of the court) brief in the U.S. Supreme Court in a significant patent case that was appealed from the Federal Circuit Court of Appeals. The case has important implications for copyright law insofar as it raises questions about the nature of intellectual property: is IP just like any other form of property, or does it possess unique characteristics that distinguish it from tangible property? The amici, filing on behalf of eBay, were the Electronic Frontier Foundation (which wrote the brief), the Public Patent Foundation, the American Association of Law Libraries, the Special Libraries Association and ALA.

On May 25, the U.S. Supreme Court ruled in favor of eBay. In a unanimous opinion, the Court held that issuing automatic injunctions in patent cases improperly removed discretion from trial judges to weigh competing factors, including the effect that enforcing the patent would have on the public interest. The ruling underscores that patents (and copyrights) are a unique form of property, designed to achieve a specific public purpose: the promotion of scientific and industrial progress.

April 13, 2006

Deadline extended for Section 108 Study Group comments
Due to a delay in posting the public roundtable transcripts on the Section 108 Study Group website, and because many commenters are busy responding to an Orphan Works legislative deadline, the deadline for submission of written comments on the issues raised in the February 15 Federal Register notice has been extended from Monday, April 17 to Friday, April 28.

The transcripts will be posted on the Section 108 Study Group website this week. The Study Group is charged with preparing findings and makeing recommendations to the Librarian of Congress by Fall 2006 for possible alterations to the copyright law that reflect current technologies.

April 7, 2006

Senate Holds Hearing on Orphan Works

The U.S. Copyright Office submitted its Report on Orphan Works to the Senate Judiciary Committee on January 31, 2006, along with recommended legislative changes. The House Judiciary Committee’s Subcommittee on Courts, the Internet, and Intellectual Property moved quickly to hold a hearing on the issue on March 8, and the Senate Judiciary Committee followed with a hearing on April 6.

The seven witnesses before the Senate included Maria Pallante-Hyun of the Solomon R. Guggenheim Foundation (Guggenheim Museum), who presented testimony on behalf of museums, archives and libraries (including ALA). The statements of Senators Hatch and Leahy and the witnesses are available on the Committee’s Web site.

There is not yet an “orphan works” bill in either house, but we expect to see bills introduced shortly. The starting point for legislative language will likely be something along the lines of the Copyright Office’s recommendations. Those recommended changes to the law, to facilitate the “productive and beneficial use” of orphan works, are fairly close to what the library community proposed:  limiting remedies for infringement for a user who performed a "good faith, reasonably diligent search" to locate the owner of a work, but did not succeed.

Background on the problem of orphan works - copyrighted works whose owners are difficult or even impossible to find - and why a solution is being sought for them can be found on our Orphan Works page.

Copyright Office Section 1201 Rulemaking under the Digital Millennium Copyright Act – public hearings held in March and April 2006

Libraries along with a number of other organizations and individuals filed comments in December 2005 with the U.S. Copyright Office requesting exemptions to the DMCA's Section 1201 prohibition on circumvention of technological measures that control access to copyrighted works. The Copyright Office has just concluded public hearings at which witnesses testified as to whether exemptions should be renewed and/or issued by the Librarian of Congress. Jonathan Band presented testimony for the Library Copyright Alliance (ALA, AALL, ARL, MLA and SLA).

The law allows for exemptions from the prohibition on circumvention for users of "classes of works" who would be "adversely affected by virtue of such prohibition in their ability to make non-infringing uses" of those works. But the exemptions must be determined through a rulemaking process that takes place every three years: the Library of Congress issued Rules in October 2000 and October 2003; the next rule will be issued in October 2006. (Background on the Rulemaking and the issues involved.)

Deadline of April 17 to provide comments on Copyright Exceptions for Libraries And Archives

The Library of Congress last year convened a “Section 108 Study Group” to prepare findings and make recommendations to the Librarian of Congress by mid-2006 for possible alterations to the copyright law that reflect current technologies. The group is named after the section of the U.S. Copyright Act that provides certain exceptions for libraries and archives. Several representatives of the library community are members of the Study Group, which is expected to continue meeting into Fall 2006.

The Study Group is reaching out to the library, archives, rights-holder, and creative communities for input on recommendations for revising the current library and archives exceptions. As part of that process, the Study Group held the two days of roundtables in March for interested parties to offer suggestions and comments on how best to revise these exceptions for the digital era.

Written comments may still be submitted to the Study Group directly via the group’s Web site on or before 5 p.m. E.S.T. on April 17, 2006.

Additional information about the Roundtables – and the issues to be addressed - is available in the Federal Register on February 15, 2006 and on the Section 108 Study Group Website. (Transcripts from the Roundtables should be available very soon.)

We urge you to read the detailed background document in order to obtain a full understanding of the issues surrounding the topics to be discussed and to provide appropriate input through written comments. Other general topics pertaining to Section 108 exceptions – such as making copies upon patron request, interlibrary loan, eReserves and licensing – may be the subject of future public roundtables.

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January 26, 2006

ALA’s Midwinter Meeting in San Antonio concluded on January 25. The materials related to copyright issues that were used at that meeting are posted on the ALA Washington Office Midwinter Web pages.

Database Protection
ALA Council at Midwinter passed a resolution (CD# 20.5) concerning the European Commission‘s recent report on the EC’s Database Directive issued in 1996. That Database Directive (Directive 96/9/EC) gave a novel, unprecedented form of “sui generis” (one of a kind) legal protection to databases even if they are not sufficiently original to be copyrighted. Libraries have fought hard to prevent the passage of similar legislation in this country. (See the Database Protection Legislation Web page.)

In December 2005 the European Commission issued an evaluation of its Database Directive which concludes, among other things, that there is no evidence that the Database Directive has achieved its goal of stimulating the production of databases in Europe; the “sui generis” protection for databases has given rise to legal uncertainty and to significant litigation in European courts and the courts of its member countries; and the “sui generis” protection for databases may harm legitimate business, research and education activities and threaten the fair use of information, including information in the public domain.

The European Commission has invited stakeholders, by March 12, 2006, to submit their views and comments and to provide further evidence on the economic impact of "sui generis" protection in stimulating the production of European databases. The ALA Council urges the European Commission either to repeal its Database Directive or to withdraw the “sui generis” right while maintaining copyright protection for “original” databases.

Section 108 Study Group Roundtable Discussions
ALA hopes that many librarians will participate in the upcoming public roundtable discussions in March sponsored by the Library of Congress “Section 108 Study Group.” The group is named after the section of the U.S. Copyright Act that provides limited exceptions for libraries and archives; the group is charged with preparing findings and making recommendations to the Librarian of Congress by mid-to-late 2006 for possible alterations to the law that reflect current technologies.

The Study Group is reaching out to the library, archives, rights-holder, and creative communities for input on recommendations for revising the current library and archives exceptions. As part of that process, the Study Group will host a series of roundtables in 2006 for interested parties to offer suggestions and comments on how best to revise these exceptions for the digital era.

The roundtables will be held on March 8 in Los Angeles at the University of California-Los Angeles School of Law and on March 16 in Washington, D.C. Information on how to participate will be published in the Federal Register in February 2006 and will be made available on the Section 108 Study Group Web site. Here is a detailed description of the issues to be discussed.

Roundtable topics (PDF)

Senate holds Broadcast Flag Hearing
On Tuesday, Jan. 24, the U.S. Senate Commerce Committee held a hearing on the “broadcast flag.” Jonathan Band testified for the Library Copyright Alliance (ALA, AALL, ARL, MLA and SLA), explaining to the Committee how the broadcast flag would hamper distance education activities by libraries and educational institutions.  (See the Broadcast Flag Web page.)

Go to the Senate Commerce Committee Web site to see the video. 

During the hearing there were references to  a "Digital Content Protection Act of 2006," crafted by Sen. Gordon Smith (R-OR).  This is a "discussion draft" bill that has not yet been introduced. 

ALA Joins Amicus Brief in U.S. Supreme Court
On January 25, ALA joined in filing an amici curiae (friends of the court) brief (PDF) in the U.S. Supreme Court in a significant patent case that has been appealed from the Federal Circuit Court of Appeals. The case, eBay v. MercExchange, has important implications for copyright law insofar as it raises questions about the nature of intellectual property: is IP just like any other form of property, or does it possess unique characteristics that distinguish it from tangible property? The amici, filing on behalf of eBay, are the Electronic Frontier Foundation (which wrote the brief), the Public Patent Foundation, the American Association of Law Libraries, the Special Libraries Association and ALA. More about the brief can be found at Copyright Court Cases.

More about the brief can be found at Copyright Court Cases.

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