21 Dec
U.S. Supreme Court Declines to Hear Appeal in Copyright Case
ALA, AALL, MLA and SLA filed an amici curiae (“friends of the court”) brief on November 17, in the U.S. Supreme Court in this case (titled Psihoyos v. National Geographic Enterprises in the petition to the Supreme Court). http://www.ala.org/ala/washoff/WOissues/copyrightb/NGeoamicusNov05.pdf. The brief urged the Court to grant a petition for certiorari (appeal) and to affirm the decision by the U.S. Court of Appeals for the Second Circuit in favor of the National Geographic Society (NGS). . The case concerns whether publishers of collective works can re-publish those works in a digital format without seeking permission of authors or other contributors. The Second Circuit ruled that the copyright law allows NGS to re-publish the entire print version of the National Geographic magazine from 1888 to 1996 in a searchable format (such as CD-ROM or DVD).
On December 12, however, the Supreme Court denied the petition for certiorari. The National Geographic Society had wanted the Supreme Court to hear the case, even though the NGS won in the appeals court in the Second Circuit. NGS had hoped the Court would rule in favor of NGS and, by doing so, resolve a confusing situation where two federal courts of appeals (the other being the Eleventh Circuit) have issued conflicting opinions about this provision of copyright law. For more information about the case and its relationship to another copyright case, Tasini v. New York Times: http://www.ala.org/ala/washoff/WOissues/copyrightb/copyrightcases/copyrightcourt.htm#NGS.
December 16, 2005
Library Groups Applaud CURES Bill as Speeding Access to Vital Biomedical Research
ALA and its partners in a coalition of national library associations, representing more than 80,000 information specialists, praised the recent introduction of legislation 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 – an important goal for the library groups.
Introduced on December 14th by Senators Joe Lieberman (D-CT) and Thad Cochran (R-MS), the bipartisan "American Center for Cures Act of 2005" would expedite development of new therapies and cures for life-threatening diseases. Among the requirements of the bill is the establishment of free public access to articles stemming from research funded by agencies of the Department of Health and Human Services (DHHS), including NIH, the Centers for Disease Control and Prevention, and the Agency for Healthcare Research and Quality. "Public Access Requirement for Research" is Section 499H-1 of the American Center for Cures bill introduced in the Senate.
Under the proposed legislation, articles published in a peer-reviewed journal would have to be made publicly available within six months via NIH's popular PubMed Central online digital archive. The library groups noted that although some final electronic manuscripts are made available now on PubMed, many are not—and delays in posting research on PubMed sometimes stall public access to important articles for up to a year.
The coalition is made up 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. These five associations collectively represent over 139,000 libraries in the United States employing 350,000 librarians and library workers. The mission of libraries is to foster global access to information for creative, research, and educational uses.
1 Dec
DMCA Section 1201 Rulemaking
The Library Copyright Alliance and the Music Library Association filed comments 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 issued its third notice of inquiry in October 2005, to begin the third round of triennial proceedings under Section 1201(a)(1) of the Digital Millennium Copyright Act of 1998.
The law provides that there can be 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 noninfringing uses" of those works. The rulemaking process to determine the exemptions is to take 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. Reply comments from interested parties are due February 2, 2006.
The Library Copyright Alliance (LCA) consists of five major library associations—the American Association of Law Libraries, the American Library Association, the Association of Research Libraries, the Medical Library Association, and the Special Libraries Association. In their comments filed today, the LCA and the Music Library Association requested two new exemptions plus a renewal of the four exemptions .
One of the new requested exemptions is for audiovisual works and sound recordings distributed in digital format when all commercially available editions contain access controls that prevent the creation of clip compilations and other educational uses. Teachers at the high school, college and graduate school level are increasingly unable, because of technological measures, to compile film and music clips to use in a variety of classes (for example, in media studies, literature, and criminal law).
The second new exemption requested is for sound recordings or audiovisual works (including motion pictures) embodied in copies and phonorecords; computer programs or video games; or pictorial, graphic, or literary works or compilations distributed in formats protected by access controls that threaten privacy and security. This requested exemption was prompted by recent disclosures about Sony BMG's copy control technology placed on music CDs, which has raised a public outcry about access controls that threaten the privacy of computer users and the security of their computers.
Congress Holds Hearing on Fair Use
On November 16, the U.S. House of Representatives Energy and Commerce Committee held a hearing entitled, Fair Use: Its Effects on Consumers and Industry. The lively hearing, convened by the Committee’s Subcommittee on Commerce, Trade and Consumer Protection, lasted more than two hours and elicited views from eight witnesses on fair use, copyright law, and technology.
Prue Adler of the Association of Research Libraries spoke on behalf of the Library Copyright Alliance (ALA, ARL, AALL, MLA and SLA) to explain to the Subcommittee why fair use is so critical to libraries. Other witnesses included Jonathan Band, who is outside counsel to the Library Copyright Alliance and who was testifying on behalf of another client, NetCoalition (a coalition of companies including Bloomberg, Google and Yahoo!), and Professor Peter Jaszi of American University’s Washington College of Law, who has worked in partnership with the library associations on many projects over the years.
The list of witnesses is at http://tinyurl.com/b8kxu.
Subcommittee Chairman Clifford Stearns (R-FL) opened the hearing by stating that the hearing was intended as “a reasoned and thoughtful examination of the law of copyright and “fair use,” how technology is making traditional “fair use” analysis and distinctions more nuanced, and how consumers are faring in the middle of all this.”
Mr. Stearns stated further:
" With today’s hearing, I also would like to lay the groundwork for further examination of H.R. 1201, my friend and colleague Mr. Boucher’s bill. H.R. 1201 would allow the circumvention of anti-piracy, encryption technology in instances when a user intends to make “fair use” of the underlying work. The Digital Millennium Copyright Act (DMCA), passed in 1998, created civil and criminal penalties for “circumventing” encryption and other technology designed to prevent tampering or “hacking” into copyrighted material. But it can also prevent fair use. I believe the effects of the DMCA to lock out consumers from the proper and fair use of material is a perverse result of the law."
Libraries are strong supporters of H.R. 1201 and its predecessor bill in the 108th Congress, H.R. 107. The same Subcommittee held a lengthy hearing on H.R. 107 in May 2004, but the bill did not progress out of the Energy and Commerce Committee. H.R. 1201 was introduced in the 109th Congress and is co-sponsored by Rep. Rick Boucher (D-VA), Rep. Joe Barton (R-TX), and Rep. John Doolittle (R-CA).
Libraries Join Amici Brief in the U.S. Supreme Court
ALA, AALL, MLA and SLA filed an amici curiae (“friends of the court”) brief on November 17, in the U.S. Supreme Court, in a copyright case, Psihoyos v. National Geographic Enterprises. The brief urges the Court to grant a petition for certiorari (appeal) in a case decided by the U.S. Court of Appeals for the Second Circuit and to affirm the appeals court decision in favor of the National Geographic Society (NGS).
The U.S. Court of Appeals for the Second Circuit on March 4, 2005, issued an opinion in Faulkner v. National Geographic Society, ruling in favor of the NGS. The case concerns whether publishers of collective works and others who may choose to legitimately digitize them can re-publish those works in a digital format without seeking permission of authors or other contributors. Several freelance photographers, as well as some writers, sued the National Geographic Society (NGS) for copyright infringement because some of their works are included in a CD-ROM produced by the NGS. The CD-ROM contains photo-scanned images of the entire print version of the National Geographic magazine from 1888 to 1996 in a searchable format. A lower court found that the publication on CD-ROM is permissible under the Copyright Act. The library and archives associations filed an amici curiae (friends of the court) brief last year asking the U.S. Court of Appeals for the Second Circuit to affirm that decision (which it did).
The case is closely related to an earlier one, NGS v. Greenberg, in which the libraries also supported the NGS. In that case the NGS was asking the U.S. Supreme Court to hear its appeal from an adverse ruling in the 11th Circuit Court of Appeals on the same facts and issues. The appellate court had held that the NGS CD-ROM did infringe the copyright of another photographer who had sued the NGS. We filed an amicus brief in August 2001. The Supreme Court declined to hear the appeal at that time.
The case also is related to New York Times v. Tasini, in which the U.S. Supreme Court in 2001 interpreted the same provision of the Copyright Act. Tasini was decided after the 11th Circuit decision in NGS v. Greenberg and, had Tasini been decided sooner, would almost certainly have changed the outcome of the Greenberg case. The libraries supported the authors, not the publishers, in Tasini. Though it may not be apparent at first blush, our support of the publishers in the present case (and the earlier NGS case) is consistent with the arguments we made in Tasini as well as our statements about the impact of the case on libraries.
The National Geographic Society wants the Supreme Court to hear the case, even though the NGS won in the appeals court in the Second Circuit, in order to resolve a confusing situation where two circuit courts of appeals have issued conflicting opinions about this provision of the copyright law.
Taxpayer Advocacy Group Lauds Call By NIH Advisory Panel
For Mandatory Public Access To Research
The Alliance for Taxpayer Access, a national coalition of over 60 library, non-profit, and patient advocacy groups, issued a statement on November 22, 2005, praising the National Institutes of Health (NIH) Public Access Working Group (PAWG) for recommending that researchers be required to deposit published articles resulting from NIH funding in PubMed Central (PMC), NIH’s online database of journal literature.
At a November 15 meeting of the working group, a majority of members also called for articles to be freely available in PMC within six months of their publication in a journal. The current NIH policy is voluntary for funding recipients and allows access to be delayed for up to one year.
The Public Access Working Group, which reports to the Board of Regents of NIH’s National Library of Medicine, includes publishers, societies, researchers, patient groups, and libraries. It was convened by NIH last May to inform the implementation of its Public Access Policy.
ALA, ACRL, AALL, ARL, MLA and SLA are all members of the Alliance for Taxpayer Access, a coalition of stakeholders who support reforms that will make publicly funded research accessible to the public. Formed in 2004, the Alliance played a leading role in the drive for free access on the Internet to peer-reviewed articles funded by the U.S. National Institutes of Health. It is administered on behalf of Alliance members by SPARC (Scholarly Publishing and Academic Resources Coalition).
9 March
1. Congressmen Rick Boucher (D-VA), John Doolittle (R-CA) and Joe Barton (R-TX) introduced a fair use bill, H.R. 1201, the “Digital Media Consumers Rights Act of 2005.” The bill is a new version of H.R. 107, which was introduced in the 108th Congress and which was the subject of a day-long hearing in May 2004. The text of the bill will be available soon at http://thomas.loc.gov and on the ALA Copyright Web pages. Libraries will be urging Members to co-sponsor the bill.
2. The House Judiciary Committee of the U.S. Congress passed S. 167, a copyright bill that had been approved by the Senate on February 1. The full House is expected to pass the bill soon. The text of the bill is available at http://thomas.loc.gov.
S. 167, the “Family and Entertainment Copyright Act of 2005,” picked up a number of provisions that were included previously in Senate and House copyright bills in the 108th Congress that did not pass. Libraries had supported passage of some of these provisions, though not others with which they were then joined, and are supporting the current bill.
Title I of the bill criminalizes the unauthorized recording of motion pictures in a movie theatre. Title II makes clear that consumers who use technology in their homes to skip over offensive material in motion pictures are not infringing copyright. Title III reauthorizes the National Film Preservation Board and the National Film Preservation Foundation, and will help ensure the preservation of our national film heritage. Title IV of the bill, the “Preservation of Orphan Works Act,” would amend Section 108 of the Copyright Act to allow libraries to engage in preservation, scholarship and research of musical works, motion pictures, and other audiovisual works during the last 20 years of their copyright term.