Today’s Installment of Copyright Review

It’s a new year, Congress is back, and the copyright review process continues in the House of Representatives. Today, the House Judiciary Subcommittee on Courts, Intellectual Property, and the Internet held a hearing on The Scope of Copyright Protection. You can find the full list of witnesses and their testimony on the House Judiciary page.

Today’s topics focused on three issues: expanding copyright to include a broadcast right, a making available right, and whether state laws and building codes should be in public domain. The Library Copyright Alliance (LCA), which consists of the American Library Association, the Association of College and Research Libraries, and the Association of Research Libraries, submitted a statement to committee (pdf) addressing all three topics discussed today.

David Nimmer (yes, that Nimmer) suggested that Congress clarify that the exclusive right of distribution includes making available that is, making the act of uploading a protected work an infringement in and of itself, even if the file is not shared with others. Courts have struggled with this issue: “when does distribution begin for digital works?” In the olden days of print, it was obvious when a work was distributed by one and transferred to another. The receiver had the work in hand. In the digital world, should one who posts content, perhaps to a cloud service or via a peer-to-peer network, be held accountable without rights holders needing to prove that the uploaded file was downloaded by someone else (or hundreds of people). Note that Professor Nimmer is suggesting that making available is a kind of distribution and that there is no need for a separate and additional right. Nonetheless, the proposal expands copyright’s limited monopoly.

Professor Glynn Lunney argued against the making available right, stating that the right was not necessary (current law, both national and international address it), that the further expansion of exclusive rights would add confusion to existing law, and that rights holders would be free to re-litigate court cases where rights holders could not prove an unauthorized file was ever downloaded. Tunney, who is also an economist, pointed out that while file sharing of music has become more commonplace and the records labels have reported losses in revenue, the creative output of music content has increased. If the purpose of the copyright is to enhance the creation of content to make it more available to the public, perhaps file sharing is an aid to advancing the societal benefit of the copyright law. Prof. Tunney was not popular with the House subcommittee because they conflated his testimony to mean that he did not want creative artists to be compensated for their work. When asked how this file sharing could be legal, Tunney replied that libraries shared for free. Perhaps of more immediate relevance to libraries was a discussion regarding the copyright status of municipal and state laws, regulations, and standards. Librarians struggle figuring out what state laws are publicly available since states decided to claim ownership and sell state laws. Witness Carl Malamud and a few of the subcommittee members agreed that if a person is asked to abide by laws, then she should have access to those laws.

In today’s ALA contribution to Copyright Week, guest blogger Kris Kasianovitz, a government documents librarian from Stanford, explores this very issue with comments about the Free Government State Documents initiative.

- Ted Wegner, OGR & Carrie Russell, OITP

Carrie Russell is the Director of the Program on Public Access to Information in the Office for Information Technology Policy (OITP). Her portfolio includes copyright, international copyright, accessibility, e-books and other public policy issues. She has a MLIS from the University of Wisconsin-Milwaukee and a MA in media arts from the University of Arizona. She can be reached via e-mail at crussell@alawash.org.

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