Digital Millennium Copyright Act

“ The amendments of the Copyright Act, dated October 27, 1998, were a major blow for digital libraries and deeply shocked their founders, beginning with Michael Hart and John Mark Ockerbloom, founder of The Online Books Page. But how were they to measure up to the major publishing companies? Michael wrote in July 1999: "No one has said more against copyright extensions than I have, but Hollywood and the big publishers have seen to it that our Congress won't even mention it in public. The kind of copyright debate going on is totally impractical. ”

“ Although a number of judge-made doctrines may be invoked to restrict termination of a license granted for the benefit of the public, the better course would be for Congress to enact new legislation expressly authorizing authors to make a nonwaiveable, irrevocable dedication of their works, in whole or in part, to the use and benefit of the public—a possibility that the Patent Act expressly recognizes, but the Copyright Act presently does not. ”

“ Reflecting copyright’s balance between private ownership and public welfare, the Act has long recognized that certain “fair use [s] ” of a copyrighted work do not constitute infringement. Id. § 107. Not all uses of a copyrighted work are “within the exclusive domain of the copyright owner,” the Supreme Court has explained, “some are in the public domain.” ”

“ Placing work under a Creative Commons license is an irrevocable act; one cannot rescind the rights one has bestowed on others after the fact. It is important to reiterate, as above, that these licenses do not replace or abolish copyright because, without copyright, an author could not make any claim over the work, including the right to attribution. ”

“ The ongoing vitality of “commons-based peer production” [15] of informational goods depends critically upon the assumption that the governing licenses will make earlier users’ contributions freely available in perpetuity for later users to copy, modify, and redistribute. [16] The termination provisions of the Copyright Act, however, may call that assumption into doubt. ”

“ For the open-content movement, termination is a problem worth solving. Open-content advocates have skillfully leveraged copyright concepts to create a vibrant and growing commons of freely reusable creative works of many types—a grand achievement given the proprietary production paradigm implicit in the language and structure of the Copyright Act. The new open-content commons rests upon a set of remarkable licensing instruments that use the architecture of control as a means to create freedom. ”

“ The common-law doctrine of fair use, for example, began—and, even after receiving express statutory recognition in the Copyright Act of 1976, [3] continues to evolve—as a judge-made exception to the statutory exclusive rights of copyright holders. [4] So viewed, recent decisions may be creating what amounts to a judge-made exception to the liability rules of the DMCA—what is in substance, even if it has not been so labeled by the courts, an emerging doctrine of “fair circumvention.” ”

“ Defendants are not the first to recognize that possibility. As the DMCA made its way through the legislative process, Congress was preoccupied with precisely this issue. Proponents of strong restrictions on circumvention of access control measures argued that they were essential if copyright holders were to make their works available in digital form because digital works otherwise could be pirated too easily. Opponents contended that strong anti-circumvention measures would extend the copyright monopoly inappropriately and prevent many fair uses of copyrighted material. ”

“ Others may have identifiable owners, but are in practice neglected, unavailable in the digital marketplace and with no plan for revitalization in modern formats. For all, it means that they are not fully meeting the basic goals of copyright to promote “the Progress of Science and the useful Arts.” [21] Their unavailability online benefits neither creators nor the reading public.
So, how can libraries provide access? First, we start with a detailed look at the two fundamental copyright law doctrines that already empower libraries to fulfill their missions: first sale and fair use. ”

“ Over the past few decades, license agreements have been gradually displacing copyright law. Users and owners of copyrighted material have always been free to alter their copyright rights and responsibilities by mutual agreement. Publishers of print and microform sources rarely use license agreements. But digital publishers are compelled to rely on license agreements, partly because their products are more vulnerable to copying and other misuse, and partly because their users sometimes need rights that copyright law doesn’t provide. ”

“ Allowing private ownership of the law, PRO insists, is inconsistent with the First Amendment principle that citizens should be able to freely discuss the law and a due process notion that citizens must have free access to the law. PRO also maintains that the Copyright Act itself, when viewed through the lens of these constitutional concerns, also supports extinguishing copyright, Second, PRO argues that, even assuming the incorporated standards remain copyrighted, PRO’s copying qualifies as a fair use because it facilitates public discussion about the law—a use within the “public domain.” ”

“ Rather, courts should (as the Supreme Court did in both Sony and Grokster) consult the purposes behind the statutory language in one statute and ask whether the purpose justifies reading the other statute in a parallel fashion.
The Patent Act’s abandonment provisions exist to protect, in the Supreme Court’s words, “the unquestionable right of every inventor to confer gratuitously the benefits of his ingenuity upon the public.” [349] Copyright policy provides no basis to deny authors the opportunity to confer a similar public benefit. ”

“ The result is that copyright is assumed to subsist in far more materials than it should, which impacts not only assessments of digital collections and materials created around works known to be out-of-copyright and/or in the public domain, but also assessments of whether copyright subsists in physical collections and materials for which the potential rightsholder is alive or has died within 70 years. Not everything is protected by copyright from the moment of creation. ”

“ Although the copyright laws were developed before digital works existed, they have certainly evolved to include such works, and this court can see no reason why works should deserve less protection because they are in digital form, especially where, as here, they were not put in such form by plaintiffs. ”

“ The question in this case is whether that protection extends to the annotations contained in Georgia’s official annotated code.
We hold that it does not. Over a century ago, we recognized a limitation on copyright protection for certain government work product, rooted in the Copyright Act’s “authorship” requirement. Under what has been dubbed the government edicts doctrine, officials empowered to speak with the force of law cannot be the authors of—and therefore cannot copyright—the works they create in the course of their official duties. ”

“ The Supreme Court instructs that the amount of originality required to extend copyright protection to a work is exceedingly low, that only a “modicum of creativity” is needed, and that copyright protection will be provided to the work “no matter how crude, humble or obvious it might be.” Feist, 499 U.S. at 345–46, 111 S.Ct. 1282.
The Copyright Act itself specifically lists “annotations” in the works entitled to copyright protection. 17 U.S.C. § 101. A long line of cases recognizes copyright protection for annotated cases and statutes. ”

“ The Copyright Clause and the Copyright Act both recognize that the United States has an important interest in protecting the intellectual property of its citizens and of those whose creative efforts enrich our lives. In this increasingly interconnected world, securing appropriate protection abroad also is important. ”

“ Whereas the other courts have held that a work must be creative to be original and thus protected by the copyright Act, which approach is consistent with a natural rights theory of property law; however, it is less absolute in that only those works that are the product of creativity will be rewarded with copyright protection and it was suggested in those decisions that the creativity approach to originality helps ensure that copyright protection is extended to the expression of ideas as opposed to the underlying ideas or facts. ”

“ The evolution of these provisions in the legislation that ultimately became the Copyright Act of 1976, and the pattern of case law construing those provisions, both show that Congress’s attention was focused on redressing unremunerative transfers made by authors in the face of superior bargaining power: [24] a policy that, whatever its normative appeal, clearly has no application to the peer-production phenomenon. The need to address the termination issue draws added force from recent cases applying traditional copyright principles to open-content licenses. ”

“ Within a monograph there is a far greater scope for copyright infringement as more space is granted and a greater number of sources are deployed. While open licensing of scholarly works could help in this regard (as seen earlier in Chapter 3) , obtaining permission to reproduce images and texts that are under copyright can be an incredibly expensive process. This cost is massively increased within a gratis open-access environment since, basing their calculations off a legacy model of ‘print runs’, an openly accessible, digital reproduction is often treated as though it were an infinite run. ”

“ To defeat a claim of fair use, the copyright holder must point to market harm that results because the secondary use serves as a substitute for the original work. See Campbell, 510 U.S. at 591, 114 S.Ct. 1164 (“cognizable market harm” is limited to “market substitution”) ; see also NXIVM Corp. v. Ross Inst., 364 F.3d 471, 481–82 (2d Cir.2004) .
B.
As discussed above, the Libraries permit three uses of the digital copies deposited in the HDL. We now consider whether these uses are “fair” within the meaning of our copyright law. ”

“ The general rule that legislative codifications are uncopyrightable derives from an understanding of the nature of law and the basic idea that the People, as the reservoir of all sovereignty, are the source of our law. For purposes of the Copyright Act, this means that the People are the constructive authors of those official legal promulgations of government that represent an exercise of sovereign authority. And because they are the authors, the People are the owners of these works, meaning that the works are intrinsically public domain material and, therefore, uncopyrightable. ”

“ Once copyright expires, the work enters the public domain and is available for anyone to reuse for any purpose. [1] In this way, the public domain is a central part of the copyright bargain and its availability produces a wider benefit to society: public domain works can be reused to create new knowledge and cultural goods that enrich social welfare and invigorate the local economy. Considering these aspirations align with public missions, GLAMs around the world are in the process of updating digital remits and strategies to feature these goals for digitised public domain collections. ”

“ We limit our analysis to non-commercial, controlled, digital lending by U.S. libraries of digitized copies of print books held in their collections. [31]
B. Fair Use That brings us next to fair use. Fair use applies to uses implicating any or all of the copyright holder’s exclusive rights, including both public distribution and the right to control reproductions. [32] Like the first sale doctrine, fair use is widely used and entire industries (e.g., home recording device manufacturers, search engines, filmmakers, publishers) rely on it. ”

“ Fair use claims will be enhanced when libraries take technological steps to limit further redistribution of digital surrogates, e.g., by streaming audiovisual media, using appropriately lower-resolution versions, or using watermarks on textual materials and images. Fair use claims will be further enhanced when libraries provide copyright owners a simple tool for registering objections to use of digital surrogates, such as an e-mail address associated with a full-time employee. ”

“ The policy does not consider that copyright in digital surrogates and data may frustrate these goals by erecting new boundaries that are geographic (e.g., UK copyright law) , cultural (e.g., Museum oversight around reuse) and economic (e.g., licensing fees to access and reuse images) . Instead it focuses on digital access (rather than open access) around an ambition “to create full machine-readable metadata and digital surrogates of our unique collections and make them available and discoverable online, and to preserve and safeguard them for future generations” (italics added) . ”

“ As a policy matter, this interpretation of the DMCA may have much to commend it. It harmonizes the DMCA with the remainder of the Copyright Act in a fashion that self-consciously seeks to preserve the Copyright Act’s balancing of the interests of content creators on the one hand and consumers and users of copyrighted works on the other. ”

“ The courts might, for example, modify the existing doctrine of copyright abandonment to permit partial, conditional, irrevocable abandonments of copyright rights, to the permanent detriment of authors and their heirs. Alternatively, the courts might extend their current practice of borrowing provisions from the Patent Act when construing the Copyright Act. [25] The Patent Act presently includes several provisions that permit creators expressly to abandon rights in their creations and dedicate their works permanently to the public domain. ”