>> From the Library of
Congress in Washington D.C.
>> Okay, thank you, welcome back.
We are going to now turn to a
related but slightly separate topic.
We've had, as I mentioned
earlier, really informative
and lively discussion
of orphan works.
But primarily looking
at orphan works
from the context of
case-by-case basis.
And so now we wanted to touch
base with you more broadly on --
about the concept of
mass digitization.
As many of you may know in our
2011 report on legal issues
and mass digitization, we
discussed the landscape at that time
of mass digitization projects
and raised a series of questions
that should be considered
in any policy discussion
about mass digitization.
Including whether mass
digitization is something worthy
of congressional support
due to either historical
or cultural significance, of course
since that time the
[inaudible] trust
and Google books cases were decided
by the southern district of New York
which have permitted
mass digitization
under current law of "fair use".
At least for certain reasons and
certain contexts, those cases,
however, as most of
you know are on a pill
and neither involved large-scale
public access to the works at issue
or the type of institutional
subscription database considered
in the Google books settlement.
So, our legal issues
in mass digitization analysis
document also considered various
licensing models that might
facilitate mass digitization
projects including direct
licensing, statutory licensing,
and extended collective licensing.
ECL is, as most of you know, a
form of collective management
where the government allows a
collective management organization
to license all works within a
category such as all literary works
for particular limited
uses regardless
of whether the copyright
owners belong
to the collective management
organization or not.
While it is not currently part
of the United States framework,
it has been adopted for many years,
ECL, in several Nordic countries
and the United Kingdom recently
has also adopted and ECL mechanism
in its law for certain uses.
And while U.S. law, as I
mentioned, has not really been part
of the United States framework,
many academics and other referred
to the previous Google books
settlement as a form of ECL,
where a books rights registry would
have facilitated certain uses of out
of print books on an
opted out basis.
And created an unclaimed
works [inaudible] to search
for un-locatable authors,
so at least some groups
within the United States and this
industry such as certain publishers,
authors, and those libraries,
that would have participated
in this subscription database under
the Google Books settlement were
at least willing to consider
or accept a framework
for ECL under certain instances.
So, we wanted to first
start off with consideration
of mass digitization generally
and then later we will focus
in more detail about
the concept of ECL
and whether it's an appropriate
framework for the United States
to consider on a legal basis now.
And I'll turn it over to Frank
for the mass digitization side.
>> Frank Muller: Thank you.
Frank Muller, Attorney
Adviser for Policy
and International Affairs
at the Copyright Office.
And before we begin if we could
go around the table and if each
of the panelists could
introduce themselves,
your name and affiliation.
And if I could ask you kindly
to turn your name tin
toward me so I can see them.
Thank you very much.
We can start with you.
>> Blane Dessy: Blane Dessy, Library
of Congress, Library Services Unit.
>> Leah Prescott: Leah
Prescott, Associate Law Librarian
for Digital Initiatives
and Special Collections
at Georgetown Law Library.
>> Corynne McSherry:
Corynne McSherry, what?
My goodness [inaudible].
Corynne McSherry, Property Director,
Electronic Frontier Foundation.
>> Andrew McDiarmid:
Andrew McDiarmid,
at the Center for Democracy
and Technology.
>> Janice Pilch: Janice Pilch,
Copyright and Licensing Librarian,
Rutgers University Libraries.
>> Mickey Osterreicher:
Mickey Osterreicher,
National Press Photographers
Association.
>> June Besek: June Besek, Executive
Director of the Kernochan Center
for Law, Media and the Arts
at Columbia Law School.
>> Jan Constantine: Jan Constantine,
General Counsel, Authors Guild.
>> Richard Burgess: Richard
Burgess, representing [inaudible].
>> Jonathan Band: Jonathan Band,
for the Library [inaudible].
>> Ben Sheffner: Ben Sheffner,
Vice President of Legal Affairs,
Motion Picture Association
of America.
>> Michael Carroll: Mike Carroll
at the American University
at Washington College of Law, and
also Creative Commons United States.
>> Brooke Penrose: Brooke
Penrose, Museum of Finance, Boston.
>> Melissa Levine: Melissa
Levine, Lead Copyright Officer,
University of Michigan Library.
>> Jerker Ryden: Jerker Ryden, Legal
Adviser, National Library of Sweden.
>> Frank Muller: Thank you.
And just to give us a sense
of scope, as Karyn mentioned,
we are transitioning from an
examination of use of orphan works
on a case-by-case or
individual basis to an inquiry
into the mass digitization
of creative works.
While orphan works are very
often [inaudible] included
in mass digitization projects,
several commenter's noted
that the issue of mass
digitization is all together a horse
of a different color.
As a preliminary matter,
it may be useful
to touch upon a point
raised yesterday in the --
by one of our panelists, which is,
what exactly is mass digitization?
What is a definition of the concept
and what is the scope of activities
that can be accurately described as
the practice of mass digitization?
Mr. Carroll.
>> Michael Carroll: Yeah.
So that's an excellent
question and an important one,
because digitization seems to focus
attention on the act of scanning.
It formats shifting from an
analogue to a digital format,
which is really the
wrong place to focus.
The focus should be on the use
of digital collections, right?
So the format shifting is clearly
a "fair use", and so it's sort
of not interesting to
talk about the scanning.
And there are lots of reasons
why you might want to invest
in that format shifting that,
again, don't even apply to the kinds
of uses that need licensing.
For example, text mining or other
kind of computational analysis
of digitized collections
would fall squarely
within either you're not
reproducing the work in copies
because it's not even
a transitory duration
to extract the non-copyrightable
facts out of that data,
or to the extent that
you keep a reference copy
for the transformative purpose
of verifying your results
that's a "fair use".
So those kinds of acts are not of
interest, but many people who invest
in the format shifting, and
it is an expensive process,
also have some conception of how
the digitized outputs will be used.
And I do think that's a place
where we have a conversation
about what uses fall within
"fair use" and what uses fall
within a license solution.
Does the current licensing
market capture those uses
that should take place or is
there a market failure [inaudible]
that some kind of legislation?
So I would say, you know,
uses of large scale digitized
collections is what we're really
talking about, and
whether we have a problem
that requires a legislative
solution.
And --
>> My perception is --
>> Michael Carroll: My perception
is that the orphan population
within these large-scale
digitized collections is not always
such a significant piece.
So I don't know that
[inaudible] one off solutions
versus mass solutions quite fits
when it comes to the use issues.
Ms. Pilch.
>> Janice Pilch: A general
definition, I think,
of mass digitization that
would apply anywhere is
that it usually refers to reference
by institutions such as libraries
and archives to digitize their
entire collections or part
of their collections with the
objective to preserve them
and to make them available
digitally.
In this country, as we well
know, our conversations
about mass digitization started in
2004 because of the Google effort.
And the term itself really
comes out of the Google effort
and we're a bit stuck in that --
in that model because
that's where it came from.
You know, the idea when libraries
started working with tech companies
to get their materials digitized
systematically and [inaudible],
at that time we had the
concept of mass digitization,
large-scale digitization that wasn't
[inaudible] style, but digitization
of collections as a whole.
And then there was also the idea
of [inaudible] digitization,
preservation of individual
works and making them available.
I think at this point in
this country we can say
that the term mass digitization,
you know, was used in the context
of Google, Microsoft, Open
Content, Alliance digitization,
about systematically scanning
works to preserve them,
to make them searchable
electronically
through full text searches, to
make them publically available
on the Internet in excerpts
and eventually in full text.
Assimilated to mass digitization
is large-scale digitization
by libraries and archives
to make works publically
available on the Internet.
But I do want to mention
one other thing, which is,
it isn't anymore only about
libraries and archives.
There's another way to think
about mass digitization.
I don't suggest we do this,
but I'm throwing the idea out.
Digitization done by the masses.
You know, it's not libraries
and archives anymore.
Lots of people are putting works on
the Internet, large amounts of them,
and they're being encouraged
to do that.
Databases are cropping up all
over the place as repositories,
not connected with nonprofit
libraries and archives.
And so, another way of
looking at it might be,
digitization done by
the mass population.
>> Frank Muller: Ms. Constantine.
>> Jan Constantine:
I think digitization
without authorization is
a violation of "fair use"
and it's not authorized
under the Copyright law.
I would defer to some of
the experts, like June,
who has written extensively on this.
I don't think that you're
definition, Michael, is really --
you're assuming that this
is all on the up and up.
And I think it started
out as Google gotcha.
They went to the libraries and
they said, I'll indemnify you
for something that you know
and that you've written about,
people like Peter Hurdle
[assumed spelling]
and others have said,
this is not legit.
This is not a violation
of Section 108
and it's a violation
of Copyright law.
And they decided to just take
trucks, dump everything in the back
of a truck, whether it be public
domain, whether it be in copyright,
out copyright, in print,
out of print.
They didn't check whether
it was disintegrating
or whether there was any
problem in preservation
and they just copied 20 million
books in violation of the Copyright.
And if you think that that is "fair
use", notwithstanding the fact
that two judges in a lower
court have issued that, and it's
yet to be decided by the Second
Circuit or the Supreme Court,
just wait for the next lawsuit
that we bring against some of you
who are using it in different
ways than that are being used now
by the [inaudible] and by Google.
You go one page instead of
a snippet, we're after you.
This is a violation of
Copyright law, pure and simple.
>> And I would just respond
to that [laughter] and I think
that Michael Carroll will
want to, as well, obviously.
Obviously there is a difference of
opinion, there could be a difference
of opinion as to whether "fair
use" is appropriate, and that's one
of the reasons why we're
here, quite frankly.
>> Yes.
>> Should there be a legislative
solution if there is a difference
of opinion as to whether "fair
use" is appropriate to be able
to perhaps still foster
and facilitate these uses
that may be [inaudible] would be
okay with if they were compensated
for in a way that would still
be efficient and easy to do.
So that is the crux of the
conversation we are having today.
>> Michael Carroll: Right.
I'm sorry, but we just
muddied the waters again
and I want to separate it.
I'm sorry, Ms. Constantine,
there is no authority
for format shifting
not being a "fair use".
You have no authority
for the proposition
that format shifting
is not a "fair use".
Snippets, pages, access,
is a separate question,
but the act of format shifting
itself is a "fair use".
>> Jan Constantine: Section 108c
says what a library can do vis-a-vie
making a digital copy
out of a print copy.
>> Michael Carroll:
Section 108 is one provision
that gives libraries
one source of rights.
Section 107 is another source.
>> Yes. And I will have to interrupt
because we can't have a conversation
-- a debate about "fair use" today,
because I think the legal
scholarship as to what is "fair use"
or what isn't "fair use"
could go on for some time
and even courts are
struggling with that as well.
So, yes, I think for purposes of
the panel we'll have to assume,
and we can throw it out to the
panel, is that even if, you know,
maybe format shifting was "fair
use", there are certain types
of mass digitization that I think we
could all agree might not, you know,
qualify as "fair use", especially
the making available aspect
of those in some way or form.
So the question is, should there
be some legislative solution,
but we haven't even gotten to the
legislative solution aspect of it,
[inaudible] at a later panel.
I think right now we're
actually just trying to get a --
get a grasp of what mass
digitization is, what are the types
of mass digitization out there, and
there will be a conversation later,
I think, in terms
of what legislative solutions
we might want to consider.
I'll turn it over to Frank.
>> Frank Muller: Ms. McSherry.
>> Corynne McSherry: I'm
sorry, I can't help but agree
with Professor Carroll, but we
don't have to have [inaudible].
But I do think "fair use"
does cover a vast majority
of what we might be
talking about here today.
But I do also agree that it is more
helpful to focus, going forward,
on not so much the issue
of format shifting,
which apparently there's a fight
about, although not in court,
but making stuff available
to the world for reuse.
Like, if we're going to create
databases, what can we do with them?
How can we get the most
public benefit out of those?
If we're going -- if we have this
chance now in an unprecedented way
to preserve our cultural comments
and make our cultural comments
available for use and reuse
and study and scholarship, how
can we best make that possible?
And I think it's much
more productive
if we can kind of keep
our focus there.
The only other thing I wanted
to say is, [inaudible] sort
of definitional stage is, I think
it is quite right that when we talk
about digital -- the digitization
of our cultural comments,
it is quite rank that it
isn't only about libraries,
nor hopefully is only
about Google and libraries.
I think we want a world
in which actually lots
of different people are creating
new and wonderful databases
for other people to use and reuse.
And so if we're going to have
any kind of solution or think
about where we should go, we should
go to a place where, you know,
1000 flowers can bloom
rather than trying to create,
you know, one or two monopolies.
I don't think that's practical and
I don't think that's what we want.
>> Frank Muller: Thank you.
Ms. Prescott.
>> Leah Prescott: In addition to
it not being just about libraries
and being about individuals, it's
not just about published works,
so I just wanted to make sure
that that gets interjected
into the conversation.
That a lot of times I hear us
talking at odds between the concept
of collection versus
individual object,
and I know that this is
what this session is about.
And in the last session I
know there was a discussion
about photographers having to
register thousands of images
that they took at a single
event, and the concept of --
keeping the concept of
collection in the --
in consideration I think is
even important on that end
because if you could
consider that collection
to be a single entity rather
than 1000 individual photographs
when the metadata would be
identical, pretty much, anyway.
So I think the concept of collection
versus is individual is
important in a lot of ways.
And I think that it's
important to remember
that within the academic universe
the world is changing drastically.
When we see elementary school
children going off with iPad's
as part of their education,
we know that digital objects are
a fundamental part, even now,
and will only continue to be,
and that as that happens the
published materials will start to --
there will be solutions
found, I am confident.
Maybe that's overly confident.
But it's the unpublished
materials that really are some
of the thorniest issues
from a library perspective
in terms of mass digitization.
It isn't even necessarily
the published materials,
it's the unique materials that
are going to go forward as being
of the most value within
the academy.
So I just wanted to make sure we
keep that perspective as well.
>> Frank Muller: Mr. Band, Mr.
Burgess, and Mr. Osterreicher.
>> Jonathan Band: So just to --
you know, I think the issue
of mass digitization actually
is perhaps a little bit broader
than just the format shifting, even
though that is certainly one context
of which we've seen it
and certainly the word
or the phrase mass
digitization implies
that you are converting something
from analogue to digital.
But I think really the body of
cases goes way beyond just Google
and [inaudible], you know, because
those cases are based on other cases
that involve digital to digital.
You know, the [inaudible],
Perfect 10 versus Amazon .
In the [inaudible] case, I'm not
even sure whether that was digital,
whether all the student papers they
may have originally been uploaded
in Word format -- you know, in Word,
so they were probably
already digital.
So I think -- and to sort of
distinguish, say, okay, well,
[inaudible] going to distinguish
between just the format shifting
as opposed to the stuff that was
ingested that was already digital
to begin with, I think that's
sort of an artificial distinction.
I mean, I think the notion is
we're looking at collections
of large amount of information
that then is, you know,
preserved in a digital format,
but to some extent that's all
behind the curtain, right?
And then the question
is, the uses of those.
And certainly I agree with Mike
that everything's sort
of behind the curtain.
Every case that has looked
at this has always said,
yeah, that's a "fair use".
>> Although I will just point out,
I'm sure that [inaudible] would
as well that [inaudible]
and obviously Google --
>> Jonathan Band: Yeah --
>> -- are [inaudible].
>> Jonathan Band: We have at least
three other circuit court decisions
that say it's not a problem,
as well as, you know,
other courts in the other cases
that we haven't even talked about,
which is, you know, the --
if we say in terms of scope
and who's doing what,
you have [inaudible]
and Thompson [assumed spelling]
who have copied the briefs that all
of us in this room have
written, and then they sell them.
They sell the full text, right?
They're making that available
and that's [inaudible]
to be "fair use", too.
I mean, so that seems
to me [inaudible] go way beyond what
anyone else in the room has done
or is talking about doing.
But, again, the courts have found
that, too, to be "fair use".
So -- but my point is is that
I agree that we need to --
we should be looking
probably a little bit broader
than just the format shifting
and short of looking at, like,
the assembly of these large
databases, that's one thing.
But the real issue certainly
[inaudible] -- the real issue, then,
at least certainly from the court's
perspective is, what are you doing
with that, and that is --
and that's where it starts
to get much more complicated, I
think, but for the [inaudible]
and Westlaw situation, there really
has not been access to full text
with the exception for the
print-disabled in [inaudible].
And so, you know, so that seems
to be until now a big distinction,
but certainly [inaudible]
and West, I mean,
they seem to be going
a step further.
>> Frank Muller: Mr. Burgess.
>> Richard Burgess:
Actually, further to that,
I think from [inaudible]
point of view, you know,
the format shifting is one thing,
but what we're really
concerned about is access.
It really comes down to access.
And I find it interesting that
before we started each one
of these sessions everybody in this
room gives permission for their --
anything they say to be used, and
yet implicit in mass digitization is
that it's not okay, it's
not creators and owners
of copyrights [inaudible]
our case we're talking
about music, would
forego that right.
That I can't even comprehend
that and none
of our members can comprehend that.
And, by the way, in terms
of the masses digitizing,
well, we've had that.
That happened 13 years ago,
14 years ago with Napster.
And now Napster could have
possibly been a good thing
if there had been a
business model attached to it
that flowed money back
to the creators
and the owners, but there wasn't.
And we know, you know,
[inaudible] ensuing six
or seven years the music industry
lost more than half its value
and it's never really recovered.
So the question I think -- and we
talk a lot about the public good,
but how are we helping the public
good if we're damaging creators
and earners of copyrights,
especially small businesses
and small individual creators.
I think, you know,
that's really the concern
from our perspective is how is
this work being used and is it --
and are we actually able to
say, yes or no, and are we able
to be compensated, really.
From the point of view of
institutions and preservation,
we're in support of that.
But as I said in the last panel,
it needs to be incredibly
[inaudible] find a list
of institutions and
incredibly narrowly
to find a list of uses, I think.
>> Frank Muller: Mr. Osterreicher.
>> Mickey Osterreicher: I just want
to preface my remarks with the fact
that I'm somewhat precluded
in talking in specifics
because NPPA is also involved with
ASMP and a number of other groups
in a suit against Google.
But that said, earlier in the last
panel it was said we were losing a
whole lot of our culture
by not being able
to put some of this stuff out there.
And I think, you know, part of
the mass digitization problem is
that I think it only adds
to the fact that much
of the public believes that the
Internet is the public domain
and that anything there
is there for the taking.
I think really one of the underlying
themes here is at least from,
you know, the Google aspect, this
is more like mass monetization.
They figured out a way of
taking all this content --
, and it's a word that
I truly dislike.
Content to me is something
that settles in the box --
in the bottom of macaroni
box [laughter], you know.
We create works.
It's not just content,
but unfortunately that's what
it's being seen as these days.
It's just more and more and
more content going out there.
In terms of addressing some
of the cases, you know,
[inaudible] was the law
of the land for 100 years
but that didn't make it right.
So just because we can
look at these things
as courts deciding what's
right now, I think, you know,
the bottom line is,
really if we expect
to have a culture then the creators
now somehow need to be compensated
in a way to -- that
they can earn a living,
and that's really all
we're asking for here.
>> Frank Muller: Thank you.
And Ms. Penrose.
>> Brooke Penrose: Yeah, I'm glad
Section 108 was mentioned earlier,
because it seems that the
purpose of Section 108 really was
to enable repositories of material,
specifically cultural heritage
material, to be accessible
to a wide amount of people, and
the reality is, there are more
than libraries and archives that
are serving that purpose now.
Museums are not addressed in Section
108 or Section 504c2 and that seems
to be an oversight and something
that, perhaps, would allow us
to move forward with enabling
more access to our content.
Going back, though, to the question
on what is mass digitization.
I think what mass digitization from
our stance really is, is recognizing
that we have a duty to a
community beyond our brick
and mortar building.
We have a duty to provide access
to a collection of hundreds
of thousands of works
to a global community.
Beyond that global
community and recognizing
that we are serving a
community beyond people
that can physically visit our
building, there are hundreds
of thousands of pieces of
work that aren't going to be
on our floor at any given time.
We have hundreds of
thousands of works
and we can fit maybe 10,000
works in our galleries.
In order to provide meaningful
access to our entire collection,
those works have to live online.
And until we're able to do that,
they're sitting in our basement.
You know, no one's
going to see them,
no one knows that they're around, so
it's really critical that we're able
to engage in those activities.
>> Frank Muller: Thank you.
Ms. Besek.
>> June Besek: I have to say, I came
in here with some prepared remarks,
but we went so quickly from
digitization from libraries
to individuals, beyond
digitization for certain users
that don't involve full text
displayed, to, you know,
uses that do, assumption of
public benefits and it --
you know, all of a sudden we're
really not limiting it in any way.
So I'm going to talk about mass
digitization in the context
of the HathiTrust and
the Google cases
which involved comprehensive
digitization of collections
for purposes of search
text mining, etcetera.
We are -- the works are not used
for the substance of what's in them
in the sense that they're
not provided to the public,
or at least to the general
public in full text form,
and currently that's being
done in reliance on "fair use",
although it has been pointed
out those cases are
still early days yet.
So if that is kind of
what we're thinking about,
I think these other things show
what a slippery slope "fair use" is.
And if that's the way we go ahead,
I think there's a lot of danger
in this going far more -- far
beyond what I think anybody
ever envisioned.
That's why, unfortunately,
I think that legislation
really is appropriate to try
to regulate what may
be a public benefit,
but not let it go too far
in the other direction.
So if there were to be
legislation, I think that what --
the thing that would
have to be looked at is,
is digitization truly
providing a public benefit?
Does the party who's digitizing
have the technical capability
to do what it says it does?
If it's digitizing for preservation,
it ought to be able to preserve,
and that's not just digitizing.
Preservation involves
a lot more than that.
What level of disclosure
can be made?
In the HathiTrust and the Google
cases we talk about snippets.
Well, what about mega-snippets,
you know, are those allowed?
Paragraphs, pages, there's a lot
of confusion about disclosure
in the Google cases because Google
very intelligently combined it's two
databases, the licensed one and the
non-licensed one, so I have to say,
most of the people that I've spoken
to that are students who say, oh,
wow, this database is so great,
almost invariably are talking
about the licensed
part of the database
where they get a few pages
rather than a few words.
So what's going to be permitted?
Is it for profit or not?
What kind of security
is being provided?
If you're going to do
this, you ought to be able
to secure the materials that
you have, and if you can't,
then you ought not be able to do it.
Is [inaudible] to be permitted?
What if you're already in another
database, because obviously
if there's more than one database
that covers the same material,
and we've heard here that
somebody shouldn't have a monopoly
on that database, then
does everything have
to be in every database?
Or, if you're in one, do
you have to be in the other?
Why shouldn't you be
able to choose yourself?
So these are the things I
think we ought to be looking at
and determining whether, you
know, there should be legislation
and what kind of legislation
that there should be.
I think it's just not
reasonable to think that --
a lot of the things that are being
discussed here are really more
appropriately amending the Copyright
Act in a significantly different way
to broaden many of the exceptions
or create one new even
broader exception.
>> And just a follow-up on
that, if you have any thoughts,
I know we kind of have been talking
really broadly about high-level,
you know, general points, but
on the mass digitization point,
in terms of what it is, do you have
any thoughts or, you know, again,
others in terms of what mass
digitization actually is?
And if we're looking at
a legislative solution
to mass digitization, what
should that encompass,
and what should be
considered to be that?
>> Can I follow-up on that question,
just to tag along a little bit.
When Karyn talks about that, I'm
also interested in, are we talking
about numbers or are we
talking about types of uses?
So are you talking about, obviously,
20 million books, are you talking
about 10 books, are
you talking about it's
for preservation, or
all of those things?
So I would be interested
in also hearing about that
and the definition of
what mass digitization is.
>> Frank Muller: Mr. Dessy.
>> Blane Dessy: Thank you.
I have a slightly different take
on what mass digitization is,
and I think we tend to think of it
as one [inaudible]
technological issue.
And I think we somehow
have the assumption
that it's easy, because
it's technology.
Anyone who undertakes a mass
digitization project is making a
large financial investment.
Having been involved with many
of them, it's not a matter
of simply putting something
on a scanner and it's done.
There's a huge amount
of work that goes
into preparing the
collections to be digitized.
There's a huge amount of work
that goes into the quality control
and the inspection
of those collections
after it's been digitized.
So those who are mass digitizing
are making their own financial
investments in this product.
So I think you have to see it as a
-- as an economic issue, as well.
Secondly, I think when people do do
mass digitization there's a value
added proposition to that as well.
Again, when I've been involved
in mass digitization projects,
we are ensuring that
we're in compliance
with various technological
standards for ease of use,
we're creating metadata, we're
managing version control.
We may be developing our
own software to search
that newly digitized content.
For the federal government,
we ensure that everything that's
digitized is ADA 508 compliant.
So there's a great
deal of value added
in the process of mass digitization.
And I'm not saying that the money
and the value should drive the
conversation, but I think we make it
to simple if we don't realize how
much financial impact there is
on the digitizer.
>> And just to kind of follow-up on
that, because I think those are some
of the same points that June
raised in the sense that, you know,
when the government, as
you said, digitalizes it,
they really have a high level
of standards that they apply.
You know, for example, making
sure that it is ADA compliant.
So when you're looking at mass
digitization for entities other
than the federal government,
should those, for example,
same standards be required in
order to facilitate that so
that the mass digitization
project actually has the most --
you know, the type of public benefit
that we would really
want it to have?
>> Blane Dessy: The
simple answer is yes.
>> Could I just make
a point about that?
I mean, security, June brought that
up, that is such a critical piece
of this and you mentioned
that in your last statement.
But the problem with
a financial investment
and value is the repercussions
if this data is hacked into,
as we all know has happened
in the past, that there are --
it is compressed and it is taken out
of the context of the collection,
like what happened at [inaudible],
and gets out into the ether
where it's replicated
perfectly numbers of times
and will eliminate the
market for the creator.
Totally wipes it out because pirates
are able to get their hands on it.
So I agree that, you know, there are
certain things that must be tagged
onto any kind of project
like this in order
to prevent that from happening.
And I agree that there is value
in digitizing and making sure
that it's done in a proper way.
But if mass digitization
occurs outside the context
of a respectable organization,
but in the context of a pirate
or a niche collector of Civil
War books and they're going
to mass digitize 50 of the books
that their followers want to read
and they just send them out
there with no software protection
and no cares in the world
about market impact,
it's a real problem for creators.
>> Frank Muller: And, Ms. McSherry,
then Mr. Sheffner and Mr. Band.
>> Corynne McSherry: Okay.
Well, I was going to talk about
something else, but if we're moving
into DRM, I have to talk about that.
>> No, we're not moving
into [inaudible].
>> Corynne McSherry: Okay, well,
it sounded a lot like that.
>> That's a broad question.
>> Corynne McSherry: Oh good, I'm
so glad we're not moving into that.
So let me just make
two broader points.
One is I think it is important
when we're talking about --
and this is actually
partially definitional.
I think it's important to
keep in mind from the get go
that to the extent
that these collections,
or the works that are digitized,
or so on, are out of print or,
of course, orphans, I think we
need to be smart about how we think
about the compensation model
and how we think about that.
Presumably these are works where
there was no commercial aspect
to them before anyway;
they're out of print,
they're not commercially
available, that's kind of the point.
And I think that trying
to keep that in mind
that actually what
might be happening is
that now suddenly they are available
and maybe there's a new
commercial opportunity,
but there wasn't one before at all.
So let's not lose track
of that as we try to think
about compensation for creators.
And the second thing is, I think
we're starting to talk a little bit
about standards here and if there
should be some sort of standards.
And I want to just give a
couple of warnings there
that I think we should
be very careful,
especially if we're thinking
about legislation down the line.
You know, if we [inaudible]
technological standards,
they're going to be obsolete
before the law is passed.
I mean, that's just not going
to happen, realistically.
So I just -- I want to put
that on the table right away.
And then, secondly, I do think,
though, [inaudible] a lot
of conversations here about security
and hacking and worries that,
you know, someone is going
to hack into these databases.
If we require somehow that any
database that's created is --
you know, comes wrapped in some kind
of technological protection measure,
we're automatically going to make
it less usable, less friendly.
We're going to undermine
ourselves from the get go
and undermine the public
interest from the get go.
And, finally, I'm sorry,
I can't resist suggesting
that perhaps we should not
compare the HathiTrust decision
to [inaudible] versus Ferguson,
just let's not do that.
>> Frank Muller: Mr. Sheffner.
>> Ben Sheffner: Thank you.
Ben Sheffner with the [inaudible].
I want to start off by saying,
obviously there's benefits
to mass digitization, that's
why people are doing them,
that's why we're talking about them.
But as the discussion so
far, as I think demonstrated,
this is a big important and
complicated public policy debate,
and there -- just as there is
benefits, there are drawbacks
for creators if not
done in the proper way.
My concern as we've seen
this debate developing
over the last several years is that
we're trying basically to, you know,
pound the proverbial square peg into
a round hole by discussing this only
in the context of "fair use".
I mean, I think we're all -- you
know, we all learned in law school
and read all the cases about how
"fair use" is very fact
specific and case-by-case.
So we're very comfortable with
the Second Circuit deciding,
you know what, this particular new
Jeff Koons sculpture is "fair use"
and this other one is not.
And even in a -- to take a more
recent example, in the Cariou
versus Prince case, I think there
were 50 something works at issue
and the Court very carefully said,
you know what, these uses are fair,
these other ones we're not so
sure and we're going to remand
to the district court to go
through, you know, work by work.
Then we have the Google Books
case and the HathiTrust case,
and we have 20 million books, and
the Court all of a sudden saying,
you know what, 20 million books
and they're doing this big
project, seems fair to me.
Without not even an -- you
know, unrealistic, obviously,
to go through 20 million individual
case-by-case "fair use" analyses.
But you know what, it lumped
even broad categories together.
It didn't make any
distinctions between --
to borrow an example that
someone else gave to me --
it doesn't make any
distinction between, you know,
a snippet of a romance novel versus
a snippet of a travel guide book.
Where, you know what, if you just
want to do a search for hotels
in Istanbul, you know what, that
snippet is pretty valuable to you
in a way that maybe the snippet
of a romance novel is not.
So, anyway, it's a good thing
that we are discussing this
in a broader public policy
debate, because, again,
I think that we are trying
to make these broad public policy
determinations by individual --
you know, district court judges
[inaudible] appellate judges
and I think it's very -- we have
to be careful that we don't sort
of lump all types of works --
I mean, I talked about [inaudible]
one type of book versus another,
but obviously there's
a lot of other types
of works including motion
pictures where, you know what,
the licensing model is
working pretty well.
There are, in a sense, mass
digitization projects going on now
and talking about things
like, there's license models,
things like [inaudible] or
movieclips.com, which, in a sense,
allow you to do pretty much what
the Google Books project is doing.
You can go on, you can search for --
through metadata, find
the clip you want,
and use them through a license
model that compensates the creator
and the other rights
holders involved.
So, anyway, again, I
commend the Copyright Office
for undertaking this and putting it
in the broader public
policy context.
>> Frank Muller: Ms. Penrose.
>> Brooke Penrose: Yeah, I
just wanted to speak briefly
to Mr. Dessy's comments on adding
value and what repositories can do.
You know, coming from an industry
whose business is fine art,
we're able to do things
with technology
that visitors would never be
able to do as far as interacting.
We're able to do 3D rotations now,
where a visitor would never be able
to pick up a vase and turn it
around and flip it upside down.
We're able to take video
to show how jewelry
and animatronics works
can be manipulated,
where a visitor would never be
able to pick up the original piece
of artwork and see what the
artists' intent really was
when they created that.
We're able to do time-lapse
videos of installations.
We had a work that took three
days to install last year
and it was fascinating
to be able to watch it
in one minute just
sort of all go up.
So I think those are investments
that as repositories we're happy
to make when it adds value.
But if we're stopped on the back-end
because of copyright restrictions,
you know, it doesn't serve
our purpose, it doesn't seem
to serve the purpose of the public.
And, quite frankly, I'm not
sure if it's something --
if it's the type of use that was
really envisioned by an artist
when they originally
created the piece of artwork
and sold it initially they
would down the line be able
to license it for, you know,
time-lapsed installation
for an educational institution.
>> Frank Muller: Mr. Band.
>> Jonathan Band: So I'd
just like to respond briefly
to June's comments about
legislation in this area.
And when you started to describe
some of the kinds of things
that would go into the
legislation, I said, well, gee,
that sort of tracks to some extent
the existing factors of the --
of Section 107, and it's also
hard to imagine how you would come
up with legislation that would be
really any more specific than what's
in 107, and at the same
time be at all, you know,
future proof to use a consultant's
slogan, sort of consultant's jargon.
I mean, because the point
is is that, you know,
we're talking about the nature of
projects that, you know, we could --
we have no idea in five years
what kinds of uses people would
like to be making or what technology
would allow, and what we would think
of as beneficial in five years
or 10 years and so forth.
So it's very hard to imagine.
Whereas, the beauty of Section
107 is that, especially, you know,
with respect to the first factor and
the fourth factor, the courts can,
looking at a specific project,
they say, okay, what is the purpose
of this project and is this, you
know, a useful purpose or not.
And I'm sure so far the
court's generally have looked
at these projects and
seen that they are useful.
But I'm sure at some point someone
is going to come up with a project
and the court's going to say, you
know what, no, this is not useful,
this does not have the purpose --
the purpose of this
project is not --
does not serve the ultimate purposes
of the copyright system
or of the public.
Similarly, with respect
to the fourth factor,
the court's [inaudible] very
carefully to see if there is --
does this specific use
have a market impact.
And so far they've
found that it hasn't.
But, Jan, to go to your
example of the 50 books, I mean,
I'm sure if someone did
that, there's no question
that the court would say, yeah, that
has an adverse impact on the market
and that is not permissible.
I mean, I don't see how, you
know, that could possibly --
you know, what you described
could possibly be a "fair use".
By the same token, you know,
the second factor, the
nature of the work.
I mean, Ben talked about, you know,
the travel books and, you know --
but if you -- in the
case where you --
in the [inaudible] case I
mentioned where they did provide --
allow full access, but it was full
access to briefs, it was full access
to works that in a sense did
not have any commercial value.
I mean, these were briefs filed
in court that were never sold.
I mean, [inaudible]
they were actually sold
for a very expensive price, right?
I mean, the lawyers that
produced them charged --
you know, charged an awful lot of
money for producing those briefs,
but they were not commercial
products in the normal sense.
And so the court, again,
found that the purpose
of allowing other lawyers who have
access to these databases to be able
to access all these briefs
and benefit from the research
and the analysis in those
briefs justified the access.
But my point is is that the
"fair use" allows the case-by-case
granularity of inspection
that it's really hard to imagine
that any legislation would
ever do any better at.
And so it seems that it is the
perfect solution to this problem,
or at least a better solution
than any other solution
that is likely to emerge.
And I think even the
security issue can --
you know, a court can factor
in to say, does this --
is this person going to be
providing adequate security or not.
And if they aren't
providing adequate security,
the court can, you know --
>> Well I --
>> Jonathan Band: -- the
four factors are not --
you're not limited to four factors,
the court can consider
whatever else it wants.
>> I guess I had one kind
of follow-up question
and we can open it up, too, but
the key distinction, of course,
with "fair use" is that there
is no payment at the end.
It would be a complete, you
know, affirmative defense
to copyright infringement.
So I think the one thing that
we're struggling with is whether,
you know, there can be a
flexible kind of solution
that would actually still allow
for some type of compensation
or permission or involvement of the
content owner in terms of what kind
of uses should be allowed.
>> June Besek: I want to go back
to what is mass digitization,
because I take a very different
position from Professor Carroll.
I think it's simply turning
other formats into digital form.
Beyond that we all
have different concepts
of what mass digitization is and
they don't agree with each other,
because everybody looks at it
from their own perspective.
Some people talk about the value
that they add and the circumstances
under which they do it,
and that's all legitimate,
but that is not a universally
accepted definition.
So one of the things
you would have to do
in legislation going forward
is to embellish what's meant
by mass digitization and
the courts will have to do
that if it progresses
under "fair use" as well.
I think the reason for
distinguishing between orphan works
and mass digitization is that
the mass digitizers don't want
to review work by work; they feel
that what they're doing needs
this comprehensive collection
of works and, therefore, they cannot
effectively do that if they have to,
in fact, do any investigation.
But the flip side of that
should be that, indeed,
they get fewer privileges
and possibly also have to pay
if that's what they're doing.
As far as the point
about Section 107,
I think Section 107 is
too vague and it's --
to really address these issues,
and I think addressing them
through 107 is distorting the law.
The -- the point about we can't
deal with security, for example,
or we can deal with it
just as well under 107
as we could under new legislation.
I don't think that's right
and if you go back and look
at what the Section 108
study group did, they --
in the context of allowing
libraries --
recommending that libraries
be allowed to copy,
to digitize for preservation
purposes, they laid out a number
of standards of what libraries
should have to be able to do
in order to do this
preservation copying.
And they tried very hard to
use standards that were already
out there in the industry, and to
use standards that wouldn't be ones
that would not be susceptible
to change over time.
And I think with respect to
security, they just said,
employ something like a
standard security apparatus
to control access.
So I think that can be done,
but the fact that they have
to employ security apparatus' is
what is missing in Section 107.
And, finally, I just want to say,
the point made earlier about one
of the great things
about mass digitization
that makes works available
that aren't otherwise
or haven't otherwise been available,
that's certainly true now, but,
you know, I just don't
understand what's going
to happen going forward.
So if something's already
been made available
through digitization,
what happens then?
Is the next person
not allowed do it?
What about the works that
come out that are digitized?
Are we saying we're only
dealing with legacy works here
that have been created
in other forms?
I would be very surprised
if most of the people
around that table would
agree with that.
So I think it's -- that's
true now, but I don't think
that that's a limitation
that people would want
to put on mass digitization.
>> Frank Muller: Mr. Carroll.
>> Michael Carroll: Yeah.
So I guess I just have a
very different perspective.
I think -- I think Ms.
Besek's example shows the point
that "fair use" has a role.
It is not the whole role, and, in
fact, the fact that people talk
about Google Books
when they're talking
about the licensed portion shows
that Google uses snippets up to the
"fair use" line and then it engages
in licenses to get the full value
out of the investment that it's
made in digitizing those works.
And that's what I expect
the institutions [inaudible]
and the cultural institutions
would also have an interest in,
that using "fair use" up to
the point where they can,
but then looking for a licensed
solution for broader access,
and then the question is whether the
party's can negotiate those licenses
or whether there's a market
failure such that it's use is beyond
"fair use", need a
statutory license.
And I don't -- I haven't
heard enough evidence
over the last two days to
suggest that we have that kind
of market failure at this point.
The institutions of memory are not
clamoring for the statutory license.
Or if they are, it would be
useful to understand what kinds
of uses you want that
license to cover,
because I think that's the
more productive dialogue.
But I would also, again, urge --
I think the Copyright Office
can play a really useful role
in developing sophisticated
registries that would make the scope
of the orphan works problem
going forward a lot lower.
And in thinking about what a
registry is, you got to think
about what digital
technology capable of.
YouTube's content ID is a registry.
It has a hash code that
identifies works in ways
that are much more effective than
metadata -- other kinds of metadata.
So we should really be thinking
about what digital technology can do
to help us identify
works going forward,
but we should also recognize
that the copyright owner enjoys
the benefit of being able
to take advantage of the value
created by the digitization
because the digitizer will want to
engage in a license conversation.
And then the last point about
the security, just be careful
about how onerous you
think about making this,
because otherwise it
becomes the Teach Act, right,
which I think would be
an unfortunate result
where you're targeting the
law-abiding institutions,
because mass digitization is
taking place by the masses, right?
That seventh Harry Potter
novel came out, that thing was
in digital form before you
could blink and it was available
and all the textbooks are
available by a [inaudible],
that's all been mass
digitized outside the scope
of what we're talking about.
So if you create a security
apparatus only for the small number
of targets that you
can get your hands on,
you're going to undermine
the overall goal
of moving 20th Century
culture online.
>> Frank Muller: Ms. Pilch.
>> Janice Pilch: My
comment was going to start
with a similar comment
that, you know,
we can talk about having an
exception or a lessening scheme
for libraries and archives,
but in the meantime,
the rest of the world is going about
its business putting works online.
And so we have to think carefully
about how anything we decide relates
to what else goes on under
"fair use" or just goes on.
But the real point
I wanted to make was
that before any conclusions
are drawn as to --
because I see the conversation
being associated
with libraries and archives.
To the extent that mass digitization
is going to be associated
with the cultural [inaudible]
of libraries and archives,
it's important to say that I don't
think that all libraries assume
that they may or that their central
mission is to, under "fair use",
put all works -- make all
works publically available
to a global community.
I think that many libraries
understand that that's desirable
but not necessarily
possible and they're willing
to do it slowly, gradually
and to wait.
We don't assume that
we can do it right now.
I think there are lots of lawyers
out there now telling libraries
and interpreting what libraries'
cultural mission should be.
Our recent report that just
came out is telling libraries
that they won't be fulfilling
their cultural mission
if they don't digitize orphans.
And I don't think that we always
need people telling libraries what
their cultural mission is.
But aside from that, I think
it's really important for us to,
when we come to a solution,
when a solution is reached,
to make very clear how the exception
or the licensing scheme
relates to "fair use".
I think that's becoming,
you know, a real issue.
If there's a specific exception and
then there's a license possibility,
or a specific exception or a
license possibility and then there's
"fair use", we have the -- why
would anyone avail themself [sic]
of a specific exception
under certain conditions,
under restrictive conditions,
if "fair use" really
allows you to do it anyway.
And Best Practices
are advising libraries
that it is a "fair use" to do it.
May I read from a "fair
use" practice
that was recently developed.
"It is of fair use to
create digital versions
of a library's special
collections and archives
and to make these versions
electronically accessible
in appropriate contexts."
Now regardless of what
that means, libraries --
many librarians interpret
that to mean it is
of fair use, it's okay,
we can do it.
And so if we are -- again, why
would anyone avail themselves
of a specific exception or why
would anyone pay money to license
if they are being instructed
or encouraged not to do that
and that it would be of
fair use to do otherwise?
That's the real problem I see
with the "fair use" argument.
>> Frank Muller: Ms. Constantine,
Mr. McDiarmid, and Mr. Ryden.
>> Jan Constantine: I would like
to respond to a couple of people.
Corynne, I would like to educate you
a bit on the commercial use aspect
of some of these books that are
involved in the mass digitization
without authorization or
compensation that Google did,
and that HathiTrust did,
and that is that a lot
of these works are now coming back
into print digitally via contracts,
via publishers realizing
that these are lost gems,
and that there's a market
there for a lot of the books
that you claim have no value, no
worth, because they weren't in print
when they were digitizing.
With respect to Janice, I'm going
to take you out to lunch today
because you sound like a
reasonable librarian [laughter]
and I haven't met one
in a long time.
But I would take issue with
one thing you said and that is,
foreign countries are putting
things online all the time.
And in the Norwegian
country, Norway and Sweden
and other Nordic countries, they are
paying authors to put them online;
they are not taking the position
that they have a cart blanche
to use all the books that
in the literary marketplace
of the Nordic countries and putting
them on without compensating.
[Inaudible] which is
not what's happening
in the United States right now.
And if, as you say, everybody
assumes in the Best Practices,
which I take issue with,
that you can do it without --
with impunity, why would anybody
exercise any kind of a license
and pay creators for anything
if somebody is telling them,
do it, beset practices.
And, again, I warn you, if I find
out about it, I'm going to sue you.
>> Okay. And to avoid
a back and forth --
[ Inaudible Speaker ]
-- excuse me, I just want
to avoid a back and forth,
we will agree that there are a
number of reasonable librarians,
and as we've heard a lot
from libraries today.
You know, this is not, you know, an
attack on libraries or librarians,
because there are a lot of very,
very good actors in that realm,
so I want to avoid any
back and forth on that.
And avoid any back and forth
between Corynne and Jan for now.
>> Jan Constantine: I'm
taking her out to lunch.
>> And we'll go around the table.
And obviously if you have a
general comment, we can --
we can address that
in a few minutes.
Thanks.
>> Frank Muller: Mr. McDiarmid,
Mr. Ryden, and Ms. Levine.
>> Andrew McDiarmid: Thank you.
We've reached the point [inaudible]
where I may be repeating
some of the earlier comments.
But I wanted to come back to the
subject of breadth versus precision,
and I think it's good on one hand
that we're having a
very broad conversation
because we're talking
about, you know,
very good things on both sides.
We're talking about increasing
access to creative works,
we're talking about doing so while
fairly compensating rights' holders
and creators and treating
them fairly.
When we turn to solutions I think
we may need to be more precise
and think about solutions
and not solutions singular.
I tend to agree with a lot
of my colleagues here that
"fair use" is doing some
important work and I agree
with a number of those decisions.
I agree with some of the
other people on the panel
that licensing is taking care of
some of these things [inaudible]
on the other end of the spectrum.
But what we're talking about and
what I think is productive to talk
about is that space in the middle
where there's a publically
beneficial use,
such as full text access, that is
outside the bounds of "fair use".
I think, you know, large consensus
that it would outside the bounds
of "fair use", but nonetheless
serves an important public purpose,
and I think that that is
where sort of conversations
about new licensing models
or more specific targeted
exceptions could play a role.
>> Frank Muller: Thank you.
Mr. Ryden.
>> Jerker Ryden: [Inaudible] and
June Besek mentioned orphan works,
at the same time she also
referred to mass digitization.
And just you might have discussed
that if you haven't it would be good
to know that European [inaudible]
when it was chiseled out
and you find [inaudible] report
that orphan works solution
as it stands was not
the only option.
They -- the [inaudible] Commission
came to the conclusion to choose
that one because [inaudible] aspect.
But you will find [inaudible]
many other solutions possible
[inaudible] licensing.
So the reason for the
European Commission
to say [inaudible] solution
was the cross-border access,
which is not something
you may have to consider.
So I [inaudible] would like to study
the European situation should go
to the assessment report
and not the final directive.
Actually, [inaudible]
directives that was in Article 7,
I think the [inaudible] want
that introduced [inaudible]
but it was left out.
So it might look like
a very well structured
and focused solution
the European one,
but as always is [inaudible]
compromise.
And we have not yet enacted
the [inaudible] directive,
it had to be enacted
by October this year.
One should also consider,
regardless if you refer
to mass digitization [inaudible]
is that everything has a cost.
The license has a cost but
also an orphan works solution,
[inaudible] Europe is not
[inaudible] exception,
but still you have
to have the manpower
to do this diligent
search, which is not cheap.
And you will have to pay for
most likely some kind of register
because it says in legislation
either you do it yourself
or you let someone else do it,
and that might be [inaudible].
Is that free of charge?
No. [Inaudible] license,
but at the end of the day,
the [inaudible] does not provide
legal certainty, the license does.
So there is a very short thin line
between the [inaudible] solution
and the orphan works directive
if you study it carefully,
because the [inaudible] the orphan
works directive was monitored
on [inaudible] one access
point to the European culture
and that was [inaudible]
about mass digitization,
but the focus was also
in cross-border access.
So if you please, please
bear in this mind
when you study the European
situation, if you do,
you might draw different
conclusions.
Thank you.
>> And I will say, we'll focus on
the ECL model as a possible solution
in the next panel, as well.
>> Melissa Levine: So I want to
respond to a few different things.
First, I am primarily
interested in libraries
and memory institutions
in this context.
I recognize that orphan works
is a much broader issue,
but trying to map the universe is --
doesn't seem particularly
productive,
at least for me personally.
And I've been looking at
these issues for 20 years now,
it's really hard to believe
that much time has passed
and that we're having a different
version of the same conversation.
I want to say that, like many of
my colleagues, we keep coming back
to the same cycle of conversation
and we are really eager to continue
to move forward in a productive way,
so I greatly appreciate the ongoing
tenacity of the Copyright Office
in fostering these forms.
I don't think that any
of the special pirate organizations
have filed to participate in any
of the roundtables, and they may
not be here to speak for themselves,
and I am a little tired of what
[inaudible] attacks on libraries
and other honest workers
for a variety
of institutions and positions.
I work at a university now; I used
to work at the Library of Congress.
I've worked at the Smithsonian.
I've worked at the World Bank.
I have worked with creators.
I've worked with publishers.
This is a tremendously complex
echo system and every single one
of us already recognizes that.
I think that many of
these specific elements
that June mentioned make
a great deal of sense.
Ms. Penrose mentioned
some of the aspects
of 108 and the role of museums.
It's interesting.
I know June served on the
Section 108 committee and one
of the few areas of pretty
easy agreement what was
that museums should be included
in some way in the umbrella
that libraries and archives
are already recognized.
I also -- you know, this can
go many different directions.
I think that particular for,
say, June and Professor Carroll,
as law professors, I think any
of these due diligence
standards creates sort
of the Permanent IP Lawyer
Employment Act of 2000 something,
if we get to that, and you
know, university libraries used
to not have copyright officers.
Whatever [inaudible]
communications officers,
there's already a very serious
and considered investment
in treating the stewardship
we have very, very seriously,
and it is not a dismissive
kind of thing,
it is a not a light kind of thing.
And it doesn't matter whether
it's a book or it's a film.
I mean, here -- I haven't
met Mr. Dessy.
But I used to work on the
American Memory Project,
and what's so striking are things
like the film collection here
at the Library of Congress,
which is cared for --
a very complex preservation material
that goes back over 100 years,
it's cared for a public expense
but the copyrights are either
unknown or they are known.
And when a filmmaker or
producer wants to assert rights,
or license the material, it's
done in a partnership sort of way
with the Library of Congress.
So there's this, in a sense,
a public/private partnership
where this film simply
would not otherwise exist.
There are a lot of materials,
as many of you know,
that are now historical.
They were commercial materials
when they were deposited as part
of the registration process over
the last hundred and plus years.
And we would not have them but for
that deposit process, and it's a bit
of a digression, but
it's an important one.
Copyright and collections
have worked integrally
for well over a hundred years.
The United States has
not always been a beacon
of copyright protection.
We have a lot to protect now and
we need to be responsible about it.
The last thing I wanted to
mention is that I had the privilege
of helping to produce a
comment that was filed
by the American Bar
Association IP section.
I'm the Chair of the
Copyright Policy Section.
There are a number of people
who helped participate
in preparing that last year.
Despite the difference
of perspectives reflected
among the lawyers, I think --
it's actually one of the pieces
of writing I'm most proud
of because it was --
there's so much conflict
and I think Mr. Osterreicher's
comment that, you know,
in the last panel where if you have
a difference of opinion you start
with a phone call seems like a very
prudent approach to much of this.
>> Frank Muller: Mr. Band.
>> Jonathan Band: So two things.
First, I wanted to respond
to Janice's reference
to the Best Practices.
You know that you grossly
oversimplified;
you just read the high level
principle, there's a lot of detail
that gives a lot of nuance about
factors that explain, you know,
that really flush it out.
And so simply the notion that
the Best Practices are sort
of a green light to sort
of just scan everything
in the library is simply
not accurate.
Second, with respect to what
Andrew was saying, I mean,
I think that that's a
very important point.
That, you know, there's
-- "fair use" takes you --
you know, has its role,
licensing has its role.
Clearly there's a gap somewhere.
The big concern with many
of us about saying, okay,
let's figure out how to fill the
gap, is that inevitably the gap --
what is seen as the gap -- we
disagree on what's the gap, right?
And so I think what I see
as the gap and what Jan sees
as the gap are two
very different things.
And so I think what Jan sees as the
gap would cover almost everything
that I consider, and my clients
consider, to be "fair use", so that,
you know, the -- you
know, the legislation
that would be filling the
gap would result in --
could end up being a framework
that would require, you know,
the libraries and others
to pay for --
into a collecting society a large
amount of money for the kinds
of scanning that we would
otherwise consider to be "fair use".
Now, you could say, oh, it's
going to be designed with the --
but I have a feeling, you know,
there's going to be, inevitably,
a lot of gray area and there
will be a lot of fighting.
And, certainly, the rights
holders will be pushing that the --
that what would be covered
would inevitably result in a lot
of money being paid into a
collecting society, which then,
and this is really going to be
the subject of the next panel,
but the truth is very little
of that money is really ever
going to go any authors.
And so anyone who thinks
that somehow these collecting
societies are going to be this pot
of gold for the individual
author, that's not going to happen.
I mean, most of the money is somehow
going to end up being spent up top
and not get filtered down,
or will get filtered in a way
that no one's going to know.
And so that's the concern,
that a lot of money gets
paid without much benefit.
>> Can I just say two
things, and really it has
to do with the next panel.
>> And I will say, we have to --
we're getting really
close to the end.
We do want to see if we
can have an opportunity
for a few comments
from the audience.
We might not have those --
>> Thirty seconds, that's all.
>> Yeah, but 30 seconds and then
we'll turn it over to the audience.
>> I just want to say that,
you know, for a year and a half
of my life I spent sitting
down with Google, publishers
and on Google's [inaudible]
libraries
because they weren't allowed
in the room by Google,
and we came up with the Book
Rights Registry, which I believe
to be the solution, which we'll
talk about at our next session.
It was not a collecting society;
the money went down all the way
to the creators and the authors.
And, you know, can we can sit
down at a table and talk as long
as there's permission, there's
a recognition of control,
and there's compensation
at the end of the day.
>> Frank Muller: Okay.
We are going to open it
up for audience questions,
if anyone has a question.
I see one.
>> So, my name is Brandon Butler and
I helped to write the Best Practices
that Janice was talking about
awhile ago, and so I wanted
to clarify something really quickly.
I think folks around the room
might disagree about the import
of the document, but I want to
make sure there's just a fact
of the matter about where
it came from, right.
And the fact is, it took us
two years, talking to hundreds
of librarians in all kinds
of contexts and not a word
in that document doesn't come
from the library community.
So to the extent that
you disagree with it,
and you're a librarian,
you're in the minority.
Thanks.
>> Just very briefly.
I think there's been
a lot of discussion
of mass digitization of books.
Sorry, Hope O'Keefe [assumed
spelling], Library of Congress.
And I guess you're not opening
this up for comments, but I'm --
I'm curious to hear about a
different kind of mass digitization,
particularly mass digitization of
manuscripts and historic manuscripts
as something we covered this in
our comments that really needs
to be addressed in any solution.
>> And we don't have an
opportunity to really open it
up for comments right now
in the oral portion, but,
as most of you know,
we have requested additional
written comments after these panels
to respond to anything
that was raised.
So we would encourage people
to respond to those issues,
or any other issues, in writing,
that we haven't been able to explore
in detail today or yesterday.
>> Nancy Copans [assumed
spelling] Ithaca.
Just to point out that so much
in mass digitization depends
on the business models and the
purpose of digitization, the scope,
the audiences that mass digitization
[inaudible] preservation,
is it for on-site only, is
it for worldwide access,
is it a fee for service model?
All of these factors weight
on permissioning [sic]
and interests of rights holders.
>> Brad Holland from the
Illustrators Partnership.
I just wanted -- I noticed this
gentleman here was commenting
on the high cost to mass digitizers
of the cost of mass digitizing work,
and I just wanted to
comment that that --
that confirmed what we said
yesterday about the high cost
to individual creators of digitizing
our work to be in compliance
with the orphan works law.
So that if the orphan works law
were passed, compliance would be
so impossible that most artists
would be unable to comply with it.
And if Congress passed both
an orphan works law and a law
that permitted mass digitization,
we would essentially be talking
about the transfer of an enormous
amount of private property
from the hands of creators
into the hands of corporations
who have the money to engage in
that kind of mass digitization.
>> Hi, I'm Carrie Devra
[assumed spelling]
and identify themselves
these days as the Center
for Copyright Integrity, but I
think it's important to share
that a room filled with suits and
people that are paid to be here,
I am [inaudible] creator who
made a living from age 19.
You're talking in terms of arts,
actors and content, you're talking
about people with passions
that don't get the monthly paychecks
you get [inaudible] everywhere,
and they have the same
expenses that you do.
And "fair use", I have to
remind you, number four says
if you deprive the content
creator of their ability
to make a living, it's
not "fair use".
So when we're talking about ways
to accommodate these new
exploding business models,
we need to remind these people
that there are laws on the books.
Title 17 is followed by
what I love to tell people,
Title 18, the Criminal Code.
If you steal and take something
that belongs to someone else,
it is a criminal behavior.
When you are approving what Google
is doing and the private companies
that run the Internet, you
are approving some entity
that is complicit to a crime.
And I only want to point out, there
is a gentleman to my left here
who is sight challenged, and
in terms of the piece I covered
and wrote about earlier, there
is the misconception that people
without sight want to take --
want to not pay for what
they're being given.
There is the [inaudible] which
I followed and participated in,
and they had it at WBU,
so it's something I think is
important for all of you to hear.
He said, "We don't want
to be treated differently
than anybody else.
We want to be treated like you."
So these encouragements
for the blind and other,
speak to the people instead
of just the suits here.
And I would encourage you -- I am on
a later panel, but in future panels,
there are more arts people like
me that understand these laws
that you decide for us
[inaudible] us of our content.
If you feel so strongly that the
models you're proposing work,
then I'm asking all of you
at the end of your months,
give me your paycheck, because
you're taking away my money.
>> My name is Jean
Dryden [assumed spelling],
and I represent the Society of
American Archivists, and I would --
just going back to the beginning,
the meaning of mass digitization.
For archivists, up to now
we've been cherry-picking items
for digitization and making
available online, but the meaning
of someone's collection of
papers or records is in the hole
and it's increasingly important to
us that we digitize the whole thing.
And in those collections
there's a lot of orphan works,
so that's a perspective about
the meaning of mass digitization
that I don't want to be lost.
Thank you.
>> Hi, I'm Carrie Russell from
the American Library Association.
I just wanted to comment that
verbal threats of lawsuits
to libraries are -- is not
really a good plan for getting us
to negotiate with you [laughter].
>> It's worked before [laughter].
>> Again, on that uplifting note
[laughter], we're going to break
for lunch where everyone can feed
themselves, get some more energy
for the later afternoon panel.
>> This has been a presentation
of the Library of Congress.
Visit us at loc.gov.