ARCHIVED: Joint Library Community Commentsre: Copyright Office Rulemaking Exceptions to the Sonny Bono Copyright Term Extension Act

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

Docket No. 98-13

In the Matter of Notice to Libraries
and Archives of Normal Commercial
Exploitation or Availability at Reasonable Price

COMMENTS OF LIBRARY ASSOCIATIONS
ON NOTICE TO LIBRARIES AND ARCHIVES

On behalf of five national library associations, we submit the following comments in connection with the Interim Regulations and Request for Comments by the Copyright Office concerning implementation of the library and archive exception of the Sonny Bono Copyright Term Extension Act. For purposes of these comments, the five associations, specifically, American Association of Law Libraries, American Library Association, Association of Research Libraries, the Medical Library Association and Special Libraries Association shall collectively be referred to as the "Libraries." The attachment to this filing provides details regarding these particular associations.

A. Background on the Library and Archives Exemption

On October 27, 1998, the Sonny Bono Copyright Term Extension Act (the "Act") took effect. The statute amends the Copyright Act by adding twenty (20) years to the term of copyright protection. An integral part of the extension is an exception that allows nonprofit libraries and archives (and educational institutions acting as such) to reproduce, distribute, display or perform works or portions thereof, for purposes of preservation, scholarship or research if the qualifying entity has first determined on the basis of a reasonable investigation that certain conditions do not apply. These conditions are that (a) the work is subject to normal commercial exploitation and (b) a copy of the work can be obtained at a reasonable price, or (c) the copyright owner or its agent has provided notice pursuant to regulations of the Copyright Office that either of the conditions (a) and (b) applies. 17 U.S.C. Sec. 108(h). The exemption does not apply to unpublished works, because their term has not been extended. Only if a previously unpublished work is published prior to December 31, 2002, will the owner benefit from the extended term; however, in that event, the work will be subject to the provisions of Section 108(h).

With passage of the Act last fall, the Copyright Office issued interim regulations, 37 C.F.R. 201.39, to provide the public guidance with respect to the new rules and to establish a procedure by which a copyright owner can provide the notice referenced above. The Copyright Office is to be commended for the swift and responsible action it has taken with regard to the new law. The library community in particular recognizes the urgent need for guidance if the particular public purposes of the Act are to be realized. Thus, the interim regulations are practical and very helpful tools for satisfying the goals of the statute.

In light of the fact that the works covered by the Act are by definition old and information about them may be hard to locate, data collected and published by the Copyright Office will serve as the single most useful resource for conducting a reasonable investigation as required by the Act. As a result, the Libraries urge that Notices submitted pursuant to these regulations be made readily available to libraries and archives via the Copyright Office's website and public information facilities to ensure that the information is retrievable in the course of such investigation by libraries and archives.

B. Responses to Specific Questions Posed by Copyright Office

The Register has solicited public comment on a series of seven questions. The Libraries provide the following answers:

  1. For how long should the Notice to Libraries and Archives be effective? Should a copyright owner be required to refile the Notice to Libraries and Archives periodically? If so, what is the preferable time period?

    A copyright owner should be required to file the Notice to Libraries and Archives periodically. Due to the nature of a filing - a representation by the copyright owner that the copyrighted work is subject to normal commercial exploitation or a copy may be obtained at a reasonable price - a single notice cannot cover the entire twenty (20) year extended term. Indeed, such information must be updated periodically, as the fact of exploitation or availability, or both, can change rapidly in the fields of publishing and communications.

    As a practical matter, the Libraries believe the copyright owner should file the Notice every two years, rather than every five years as the interim regulations stipulate. The requirement of submitting a Notice every two years would ensure greater fairness and accuracy in implementation of the Act. The core purpose of the exemption is to permit certain access to works in the last twenty years of the new copyright term for important and fundamental public purposes - preservation, scholarship and research. It is understood that a reasonable investigation into normal commercial exploitation practices of copyright owners, as well as the ability to obtain a copy at a reasonable price, can be greatly assisted by the information volunteered to the Register in the Notice.

    Since owners' publishing strategies change frequently, works routinely go out of print and copies of works more than seventy-five years old (or fifty years after the death of an author holding copyright in his or her name) are often hard to locate, requiring the Notice at least every two years assures the most practical and complete access to information that can be vital for preservation, scholarship and research. Filing a Notice once every five years could deny legitimate public use based on outdated information that once filed could remain valid for as long as twenty-five percent of the entire extension period. In the Libraries' opinion, this is too long a time to permit inaccurate information to be circulated. If the works are subject to "normal commercial exploitation," it is not a substantial burden to place on the owners to notify the libraries and archives every few years of that fact in light of the significant economic benefits they secure from the extended term.

  2. Should copyright owners be permitted to file the Notice prior to the commencement of the final 20 years of the copyright term? If so, how long before the commencement of the final 20 years should they be permitted to file the Notice?

    In the Libraries' opinion, the principal advantage of filing the Notice before formal commencement of the final twenty (20) years would be to afford the Register's Office the administrative convenience of reviewing and publishing accurate information as of the date the extended term begins. Thus, the Libraries would have no objection to a filing being made a reasonable period before commencement of the extended term, with the Notice remaining valid for the first two years of the new term (as suggested in response to Question 1). The Copyright Office should determine how much time it needs to review and process Notices and permit the initial filing within that period. However, the early filing period should not exceed six months.

  3. Should the final regulations require that new Notices to Libraries and Archives be filed upon the adoption of the final regulations, or should Notices filed pursuant to the interim regulations remain valid? The answer to this question is likely to depend on whether the final regulations require more information in the Notices than is required by the interim regulations.

    The final regulations should require that new Notices to Libraries and Archives be filed upon the adoption of final regulations. As discussed below in Question 4, final regulations should require more information in the Notice than is required under the interim regulations. Consequently, in order to ensure all Notices are complete, copyright owners should submit new Notices that contain all required information.

  4. Besides the information set forth in Sec. 201.39 (c) of the interim regulation, should a copyright owner provide any additional information in a Notice to Libraries and Archives? Should any of the information required or requested under the interim regulations not be required or requested under the final regulations? Should any of the optional information be required, or any of the required information made optional?

    All of the information that is set forth in Section 201.39 (c) of the interim regulations should be required under the final regulations. Except with respect to information noted below regarding "normal commercial exploitation" and obtaining the work for a reasonable price, the information under Section 201.39(d) that may be listed at the option of the copyright owner should remain optional.

    In addition to the information required in Section 201.39(c), the Final Regulations should require the following:

    1. With respect to each copyrighted work, a declaration that the owner or its agent has a copy of the work and the name, address, phone and fax numbers and e-mail address of the person in control of such copy.

      As a practical matter, if a copyright owner is to declare under penalty of perjury that a work is subject to "normal commercial exploitation" or a copy can be obtained at a reasonable price, then that owner or its agent must have access to such copy or control the party that holds the copy. Thus, it is not a burden to require a declaration to that effect in the Notice. The identity of the individual required by Section 201.39(c)(13) may or may not be the same person in control of the work. If the owner cannot recite the name and address of the person actually in possession of the work or a copy of it, then libraries and archives should be allowed a presumption that neither condition in (a) or (b) of the statute apply. This point is further amplified in response to Question 5 below.

    2. In the case of works that are periodically withdrawn from public distribution as part of a business plan of the owner, that fact should be stated, as well as when the work will be publicly re-released.

      When representatives of the groups interested in the term extension were in negotiations, it was asserted by representatives of motion pictures that "normal commercial exploitation" should be understood to mean that a work could be removed from public distribution periodically, and then released after some limited period of time. For example, it was explained that the Walt Disney Company has a practice of releasing films and videos for some time, and then withdrawing them from direct marketing for several years to reestablish public interest in the work. Thus, if an owner does engage in such practice as part of its normal commercial exploitation with respect to a particular work, such fact should be stated in the Notice. If the work is not being commercially exploited at the time of the filing of the declaration, the owner should state when public exploitation would resume.

    3. In the case of collective works and compilations, if an owner does not hold all rights to all works, in addition to the information contained in Section 201.39(c)(11), the filing should separately identify each individual contribution and, if known, its copyright owner.

      Anyone filing a notice for a compilation or collective work who does not own all rights in all the separate contributions of that work should identify the separate works and, if known, the names and addresses of the copyright owner. As noted below in response to Question 7, collective works pose particularly complex copyright issues and the Notice should elicit the relevant information to help a library and archive resolve legitimate issues of use that may arise.

    4. In the case of all works, the format in which the work is stored and whether the technology needed to access the work is currently available at a reasonable price.

      Many works exist only in outmoded formats, such as dictabelts, eight track tapes, or beta videotapes, for which equipment needed to make the work intelligible may no longer be readily available. Currently popular digital formats, such as Liquid Audio or Real Player, may also become obsolete one day. As in the case of the recently adopted amendment to the library exemption in Section 108, there should be an exception permitting libraries and archives to convert works to more modern and accessible formats without resorting to locating machinery that is not readily available in the marketplace. This issue is further discussed in response to Question 7 below.

  5. Under the final regulations, what information should a copyright owner provide with respect to a work's normal commercial exploitation and/or availability at a reasonable price? Is it sufficient to require (1) a declaration under penalty of perjury by the copyright owner that a work is subject to normal commercial exploitation or availability at a reasonable price; and (2) contact information where libraries and archives may obtain further information on the work's exploitation or availability; and to provide an option for additional information concerning the work's commercial availability?

    The Libraries agree that owners should be required to declare under penalty of perjury that the work is subject to normal commercial exploitation and a copy may be obtained at a reasonable price from the owner. Such a declaration under penalty of law emphasizes the importance of the filing and underscores that certain older works may not be readily available through nonprofit libraries and archives for preservation, scholarship or research purposes. Moreover, it is not sufficient for the regulations to request additional information regarding a work's exploitation or availability be made available on an optional basis. The information discussed above in response to Question 4 should be mandatory.

    Regarding obtaining a copy of the work at a reasonable price, as noted in Item (1) to Question 4, for this provision to have its intended effect, the owner should declare in the Notice that it has access to the work and identify the person to contact in order to obtain a copy. If the owner cannot make a copy of the work available directly by itself or its agent, then libraries and archives should be entitled to a presumption in favor of the exemption. For example, it would be a perversion of the exemption if a copy of a work exists only in a library, but the owner, who does not have physical copy, nevertheless declares it is subject to normal commercial exploitation or can be obtained at a reasonable price. An owner should not be encouraged to assert such a work is outside the exception.

    Further, the fact that a copy might exist in a second-hand bookshop should not affect a library's or archive's use. Under the first sale doctrine, the owner is not entitled to any additional remuneration on the resale of that copy of the work. The market for resale in such a situation does not offer any way to measure "reasonable price." Only if the owner is actually marketing a work it physically possesses, or recently placed sufficient numbers of copies into commerce, could the owner accurately declare that the statutory test has been met.

    With respect to the Notice, the Libraries agree that a $50 filing fee is appropriate. This will be the same charge as the new filing fee for a copyright registration; in light of the benefits obtained and the burdens imposed by the administration of this new provision, such a fee is fair. However, the Libraries believe that the Register should not adopt a "group registration" approach. Under the statute, the Notice applies to specific works. The circumstances of normal commercial exploitation and obtaining a copy are work-specific. The potential for confusion in preparing and interpreting a Notice where multiple titles are grouped together could be substantial. Moreover, when subsequent filings are made after the effective term of the Notice expires, further confusion could be engendered. Rather than adopt a group filing, the Libraries believe each work should have a complete and separate Notice.

  6. If, after filing a Notice to Libraries and Archives, the copyright owner transfers or assigns a work, or transfers and assigns rights in a work, should the new copyright owner or its agent be required to submit a new or amended Notice? Should the regulations otherwise require the filing of an amended Notice in the event of a change in any information reported in the Notice?

    The Libraries believe that a Notice should be updated for any material change, including assignment or transfer of rights in a work in order that the Notice continues to reflect accurate information. If it is not, libraries and archives could be forced to expend time and resources tracking down an owner or could rely on false or misleading information. Preservation of accurate information can be assured by requiring that a change in any material information (i.e. information that affects the accuracy of whether a work is subject to normal commercial exploitation, whether a copy can be obtained at a reasonable price and who is the owner and how to contact him or her), justifies the filing of an amended Notice.

  7. Are there types of works (e.g., individual contributions to a periodical or other collective work that may not have been separately registered) which will present particular issues or problems that must be specifically addressed in the regulations? What are those problems and how should they be addressed? Should any additional information be required with respect to such works?

    Two types of works pose problems that should be addressed in the Notice. First, as noted in the question, individual contributions to collective works or periodicals, as well as compilations of separately owned or created works (referred to as "collective works"), pose complexities for the new regime. By way of example, it may be that some contributions to collective works were independently registered -- or not -- under the Copyright Act of 1909, or their renewal was applied for -- or not. The owner of the collective work may or may not be in a position to represent all the authors of the individual works. To rely upon declarations of owners, who might have held first publication rights only, not distribution or performance rights, could make a Notice covering the individual contributions inaccurate or misleading.

    It is equally true that determining whether individual works owned by persons other than the owner of the collective work are subject to normal commercial exploitation or whether copies may be purchased at a reasonable price, are issues that the owner of the collective work may not be able to answer. Libraries and archives should not be required to purchase a copy of a collective work to enjoy the privileges of using an individual contribution. If an owner does not hold all rights to all contributions in a collective work, his or her Notice should so indicate and a separate Notice should be filed by the owner of each individually contributed work. The Notice of the owner of a collective work should be specific as to the scope of his or her interests.

    Second, if a work was published in a format that is now obsolete, or for which the equipment needed to access it is no longer manufactured, such facts should be made known in the Notice. When Congress adopted amendments to the library exemption, 17 U.S.C. Section 108 (a), in the Digital Millennium Copyright Act, it recognized that obsolete formats should permit library copying, just as readily as lost and stolen works. So, too, with regard to the exception during the extended term, libraries or archives should be allowed to use works whose format is passe and for which equipment is not being made. It stands to reason that if the only accessible copies of a work are in outmoded formats, then the work cannot be considered subject to normal commercial exploitation and unless equipment is being manufactured and sold at fair price, the library or archive will be unable to use the work on a reasonably priced basis.

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C. Conclusion

In sum, the Libraries believe that Interim Regulations are a positive step forward in fair and efficient handling of this important exemption. We look forward to creation and implementation of Final Regulations consistent with the comments submitted herein.

Respectfully Submitted,

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


Arnold P. Lutzker, Esq.

Dated: February 16, 1999

Arnold P. Lutzker, Esq.
Lutzker & Lutzker LLP
1000 Vermont Avenue, N.W.
Washington, D.C. 20005
202-408-7603


ATTACHMENT
LIBRARY ASSOCIATIONS

The American Association of Law Libraries ("AALL") is a nonprofit association founded in 1906 for educational and scientific purposes. Its membership of more than 4,800 institutions and individuals includes 1700 law libraries at both for-profit, governmental, and nonprofit organizations. Virtually every publicly accessible law library in the country is a member of AALL, including every law school library, both public and private, every major law firm library, the White House law library, and corporate law libraries. The AALL exists to provide leadership in the field of legal information, to foster professional growth of law librarians, to develop the profession of law librarianship, and to enhance the value of law libraries to the educational, professional and judicial legal communities and the public.

The American Library Association ("ALA") is a nonprofit educational organization of 58,000 librarians, library educators, information specialists, library trustees, and friends of libraries representing public, school, academic, state, and specialized libraries. ALA is dedicated to the improvement of library and information services and the public's right to a free and open information society. A new five-year initiative, ALA Goal 2000, aims to have ALA and librarianship be as closely associated with the public's right to a free and open information society -- intellectual participation -- as it is with the idea of intellectual freedom.

The Association of Research Libraries ("ARL"), founded in 1932, is a nonprofit association of 121 of the largest and most comprehensive research libraries in the United States and Canada. ARL's members include university libraries; research-oriented public libraries, such as the New York Public Library; and certain government libraries, such as the National Agricultural Library. The mission of ARL is to identify and influence forces affecting the future of research libraries in the processing of scholarly communication. ARL's programs and services promote equitable access to, and effective use of, recorded knowledge in support of teaching, research, scholarship and community services.

The Medical Library Association ("MLA") is a professional organization of more than 5,000 individuals and institutions in the health sciences information field. MLA members serve society by developing new programs for health sciences information professionals and health information delivery systems, fostering educational and research programs for health sciences information professionals, and encouraging an enhanced public awareness of health care issues. Through its programs and publications, MLA encourages professional development in research, education and patient care.

The Special Libraries Association ("SLA") is an international professional association serving more than 14,000 members of the information profession, including special librarians, information managers, brokers, and consultants. SLA has fifty-six regional/state chapters in the U.S., Canada, Europe, and the Arabian Gulf States and twenty-eight divisions representing subject interests or specializations. Special libraries/information centers can be found in organizations with specialized or focused information needs, such as corporations, law firms, news organizations, government agencies, associations, colleges, museums, and hospitals.