Statement of Robert L. Oakley on behalf of the American Association of Law Libraries and Several Other Library Organizations before the Working Group on Intellectual Property Rights of the Information Infrastructure Task Force September 22, 1994 Washington, D.C. Good afternoon. My name is Robert Oakley. I am the Director of the Law Library and Professor of Law at the Georgetown University Law Center. I am here today to testify on behalf of the American Association of Law Libraries. However, the major points in my remarks have been endorsed by several other library associations, including the American Library Association, the Association of Academic Health Science Library Directors, the Association of Research Libraries, the Medical Library Association, and the Special Libraries Association, as well as by the National Humanities Alliance and the Commission on Preservation and Access. The American Association of Law Libraries is an organization with over 5,000 members who respond to the legal and government information needs of lawyers and judges, law students and faculty, courts and legislatures, and members of the general public. We believe that the Copyright Act promotes a healthy creative environment -- and the progress of science and art -- by balancing the rights of copyright owners with the rights of researchers and other subsequent users. Information about the other organizations that have endorsed this statement is attached at the end of the statement. At the outset, the American Association of Law Libraries would like to commend Commissioner Lehman and the Working Group for their willingness to confront some of the most difficult issues involved in the creation of a robust national information infrastructure. As the Draft Report so aptly notes, "the world will not create a successful NII, if there is not content". [Emphasis in original.] A satisfactory resolution of some of the issues raised by the Draft Report will increase the availability of proprietary material on the network and will at the same time protect both the rights of owners to fair compensation and the rights of users to reasonable and equitable access to information. Such a balance has long been a part of the American copyright system, and we believe that it must be maintained in the electronic environment. We believe that the Working Group has taken an important first step in the resolution of the issues by identifying a number of areas of concern and by providing various fora around the country in which the issues may be discussed. In the balance of my comments, I will address three areas raised by the Draft Report: first, the proposal to expand the right reserved to copyright owners to disseminate a work to include dissemination by means of transmission, second, the issues related to access to information by users and libraries, and third, issues of licensing. First, we have not been persuaded by the Draft Report that an expansion of the distribution right to include transmissions is needed. If, however, such a right is created, we believe that it must be balanced by appropriate limitations to ensure access to information by information users and libraries. Expansion of the exclusive rights of copyright owners should only be undertaken with great care and when the need has been demonstrated clearly. An expansion of rights on one side necessarily changes the existing balance because it almost certainly means limiting rights somewhere else, and the full implications of such a change may not be seen at the time of enactment. The draft report proposes to amend the distribution right to specifically include the distribution of copies by transmission. It is said that this change is necessary because "it is not clear under the current law that a transmission can constitute a distribution of copies." But other parts of the report make clear that such a change is not needed for protection. For example, on pages 36 and 37, the report argues (without citing any authority) that "[i]t has long been clear under U.S. law that the placement of a work into a computer's memory amounts to a reproduction of that work." The report then sets out several allegedly infringing examples (including uploading, downloading, and transfers over the network) and concludes that in such cases "there is an infringement of the reproduction right." Moreover, on page 44 the report argues that most works on the NII are protected by the public display right. The report maintains that the display right is "clearly" implicated in the case of a bulletin board operator who distributes protected material. It concludes that "when any NII user visually 'browses' through copies of works ... a public display occurs .... virtually all NII uses would appear to fall within the law's current comprehension of 'public display.'" Finally, the report points out that one court construed the downloading of digitized images from a BBS as implicating the distribution right, even without the proposed expansion. The court in Playboy apparently relied on the distribution right and the public display right because they were uncomfortable finding the defendant guilty of violating the reproduction right when the material was uploaded by one person and downloaded by another, neither of whom was the BBS operator. Taken altogether, we believe that the Working Group has not made a clear and convincing case of the need to expand the distribution right to include transmissions. As the Draft Report itself shows, such allegedly infringing activities as may be conducted by means of transmissions are already protected under the reproduction right, the public display right and/or the distribution right. Under the circumstances, we can see no justification for adding to the exclusive rights of copyright owners. If, despite these concerns, the Working Group still wishes to pursue adding a new right to distribute a work by transmission, we believe that the new right must be balanced with appropriate limitations to ensure adequate access to information by library users. For example, the library community has consistently argued that with the exception of the preservation sections of Section 108, that part of the statute authorizing certain other library activities is neutral as to format. In our view, an interlibrary lending transaction that is otherwise lawful is not rendered unlawful merely because the delivery mechanism is electronic rather than paper. Representatives of the publishing industry do not agree with this analysis. If a new right is added now to give copyright owners the right to control distribution by transmission, it will be critically important for the future of libraries and those they serve to define how the legitimate functions of libraries fit into the new right. If copyright owners are granted new, explicitly electronic rights, then the library community will have to insist that it not be left behind, bound forever to a paper based system, while the rest of the world moves onto the electronic superhighway. Our second concern is that the report should include a more explicit discussion of the needs and rights of information users and libraries. Libraries are essential to the kind of democratic society we have known in America, where education and learning are available to all, not just to an elite aristocracy that can afford to pay. This idea -- that anyone in America can get the information they need simply by going into a library -- is threatened by the kind of technological controls over information now being developed and discussed at length in the Draft Report from page 108 to page 116. If implemented, these controls can potentially give copyright owners a complete monopoly, allowing them to dictate who will have access to information, and on what terms. Gone will be any notion of fair use. Gone will be libraries serving the community. Gone will be a society without an information elite. In its place we will have a society where users who can afford to pay will pay by the screenful. Everyone else will have to do without. These systems are poised to ensure the construction of a society of information haves and have nots, based solely on the ability to pay. As the new electronic systems develop, we believe it is essential to use the law to gain control over these technological systems and to reaffirm in the strongest possible terms the rights of information users to the fair use of information on the NII and the rights of libraries to meet the needs of their users. To that end, we commend the working group for its recognition on page 51 of the Draft Report that fair use will continue to exist in the context of the NII. We further commend the Working Group for its ringing statement that "it is critical that researchers, students and other members of the public have opportunities online equivalent to their current opportunities off-line to browse through copyrighted works in their schools and public libraries." But fair use is more than browsing. That is simply the floor below which fair use cannot fall. Further, we must disagree with the implication in the Draft Report that changing technology may create new mechanisms for payment and thereby reduce the amount that may be used within the bounds of fair use. Such is the precise danger of the new technological controls alluded to before. Nowhere in the four criteria for fair use is mentioned the nature of the payment mechanism. It should not be written in now. We do recognize the difficulty and complexity of defining fair use in a new and emerging electronic environment. Because of the difficulty of the task, we were disappointed that the issue was originally relegated to a one day conference. We had envisioned something more like CONTU, where a diverse group met for an extended period to discuss the issues and develop recommendations. We were pleased, therefore, to learn that the Fair Use Conference is now intended to have several meetings. We believe that it is critical to take the time necessary to ensure a reasoned approach to this difficult problem. If the issue cannot be brought to a conclusion under the auspices of the meetings of the Working Group, we recommend the formal creation of a CONTU-2 to address the problem. A second CONTU would come with a mandate from Congress, would have a budget to support its work over an extended period, and would have a relatively clear deliberative process specified with an anticipated outcome intended to be fed into the legislative process. Beyond fair use, we believe that the Working Group should go much further than it has to address the issues concerning the legitimate activities of libraries under Section 108 of the Act. In my testimony before you last year, I explained that the limitation of the preservation sections of 108 to single copies in facsimile form was seriously hindering the progress of library preservation efforts. The preservation problem is nothing short of a national intellectual and historical crisis. Virtually everything printed or written on paper since about the 1820's is deteriorating because of an acidic wash used in the manufacture of the paper. The life expectancy of such paper is substantially less than the duration of copyright, ranging from 50 to 75 years. It is quite literally true that in many cases the copyright laws are protecting works longer than the physical objects are likely to survive. National preservation standards require a minimum of three copies: an archival master, a use master, and a use copy. Plainly, these widely accepted standards exceed what is permitted under Section 108 of the Copyright Act. Moreover, the development of technology is increasingly moving away from microfilm and toward digital technology as an accepted means of preservation. As a result, sections 108 (b) and (c) have become basically irrelevant to meeting the massive problem of preserving the historical record on the shelves of our nation's libraries. These sections of the Act must be amended and strengthened to allow libraries to proceed lawfully with this important work. Finally, as stated before, the rest of Section 108 is neutral on its face as to format. We must, therefore, disagree with the conclusion of the Working Group that "Section 108 does not permit libraries to convert printed works to a digital format without the authority of the copyright owners." The Draft Report cites no authority for this conclusion. Section 108 itself speaks only in terms of "copies". Except in (b) and (c) it does not say "copies in facsimile form". It does not say "copies, but not electronic copies". We believe the section is clear on its face. So long as the library is operating within the limits authorized by the statute, the library may make the copies in any format. We must urge the Working Group to change this section of the Report to more accurately reflect the actual text of the statute. Third, we agree with the Working Group that licensing will be an important means for resolving many of the issues concerning the use of proprietary works in the electronic environment. We don't agree, however, that statutory licenses should be eliminated from the discussion at such an early stage. The American Association of Law Libraries agrees with the Working Group that licensing issues are, and will continue to be, important in the context of the NII. Licenses have come into increasing use for library acquisition of all types of electronic information. However, the library community is concerned that too often such licenses fail to take into account legitimate uses permitted under the Copyright Act. We believe that licenses should take into account fair use and the section 108 exemptions for libraries, and should only be utilized for those uses that exceed fair use or the other exemptions in the Act. Licenses should not be used to contract around otherwise legitimate uses of proprietary material. Further, we do not agree with the Working Group's conclusion that "additional compulsory licensing of intellectual property is neither necessary nor desirable." In saying this, we do not wish to be read as necessarily advocating the creation of a new statutory license. Rather, we simply think that it is too early in the discussion to have reached that conclusion and to have removed one of the possible options from further consideration. It was just two years ago that the Audio Home Recording Act was passed. The Working Group's discussion of the problem dealt with by that Act shows a remarkable similarity between the issues faced then and the issues now for the distribution of print and multi-media material over the NII. The Audio Home Recording Act combined technical solutions with a statutory license to arrive at an equitable solution satisfactory to all concerned. We do not know now what the ultimate solutions will be for the use of proprietary materials over the NII. However, we do believe that the model of the Audio Home Recording Act and other forms of statutory licenses are interesting and ought to be discussed. We simply think it was too early for the Working Group to remove all forms of statutory licensing from the discussion. Again, we thank you for the opportunity to participate in this forum. We believe strongly that it is through the kind of dialog that we can have in meetings such as this that we will eventually be able to arrive at a solution to these difficult intellectual property issues. We look forward to continuing to work with you and others as this important discussion continues. * * * Other organizations endorsing the basic points in this statement include: The American Library Association is a non-profit educational organization of 57,000 librarians, library educators, library trustees, and other friends of libraries from public, school, academic and research, state, and specialized libraries, and schools of library and information science. The Association of Academic Health Science Library Directors is composed of the directors of libraries of 142 accredited U.S. and Canadian medical schools belonging to the Association of American Medical Colleges. AAHSLD's goals are to promote excellence in academic health sciences libraries and to ensure that the next generation of health practitioners is trained in information- seeking skills that enhance the quality of health care delivery. The Association of Research Libraries is a not-for-profit organization representing 119 research libraries in the United States and Canada. Its mission is to identify and influence forces affecting the future of research libraries in the process of scholarly communication. ARL programs and services promote equitable access to and effective use of recorded knowledge in support of teaching, research, scholarship, and community service. The Commission on Preservation and Access is a not-for-profit organization whose mission is to foster policy, programs and activities that help ensure continuing access into the future of the cultural and intellectual record. The Medical Library Association was founded in 1898 and 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 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 of its membership, whose foremost concern is dissemination of health science information for those in research, education and patient care. The National Humanities Alliance is a coalition of some 80 organizations concerned with federal policies that affect scholarship and other humanities activities. Its members include scholarly and professional associations, organizations of museums, libraries, historical societies, higher education, and state humanities councils; university and independent centers for scholarship and other organizations with interests in national humanities policies. The Special Libraries Association is an international professional association serving more than 14,000 members of the information profession, including special librarians, information managers, brokers, and consultants. The Association has 56 regional/state chapters in the U.S., Canada, Europe, and the Arabian Gulf States and 28 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.  *** EOF *** .