Medical Library Association | Public Policy : Digital Millennium Copyright Act (DMCA)

Primer for the Digital Millennium

Part III: What the DMCA and Term Extension Means for Libraries

XI. What the Digital Millennium Copyright Act and Term Extension Act Mean for the Library Community

The Digital Millennium Copyright Act is the most comprehensive reform of copyright law in a generation. It takes copyright principles into the digital information age and establishes complicated rules that most users do not yet appreciate. The implications of the statute, however, will be great. This memorandum has detailed the history of the digital discussions and highlighted the key issues and the most important statutory provisions.

Now, from overview to action, here in a nutshell is what the DMCA means for the library community:

A. TPMs and Anti-Circumvention

Many electronic works are distributed in encrypted form. The new anti-circumvention and access rules will encourage publishers to distribute digital works online, by CD, CD-ROM, DVD or in other formats, in encrypted or protected form by providing greater assurance that those who abuse access barriers will be subject to severe penalties. Legislators and content owners both hope that the severity of the penalties will discourage widespread piracy.

Most likely, the DMCA will ensure that more works come with licenses and with an obligation to pay for each use or access. This change could hit libraries particularly hard, because it will challenge the way in which libraries functions as the archive of our published history. Libraries must be prepared to review contracts for the acquisition of digital works more closely than ever before and bargain for full access rights. They must be alert to limitations on access and use of works that are licensed. In short, libraries must be prepared --
- To bargain for the right to a hard copy.
- To realize that digital access means limited access, unless you own a copy of the work.
- To prepared to pay for the cost of access.
- To understand that equipment which decrypts works may be illegal to acquire or use.

No later than October 28, 2000, the Library of Congress must publish regulations controlling access to particular classes of works. The library community needs to organize itself and understand how it is using digital works today, how it is likely to use them in the near term and what are the economic and social impacts of the new regime. Then, it must be prepared to participate actively in regulatory proceedings to be established by the Librarian that will focus on the particular classes of works that need exemption from the new rules. Careful data collection in 1999 will be necessary if a strong record in favor of fair use, library preservation, teaching and scholarship is to be made.

As with many agency rulemaking proceedings, active participation in the initial case will be very important, because procedure will be established for managing the record and early precedents will carry forward for years to come. All issues raised by the legislation will be novel for the Librarian in the first rulemaking case. The central focus of these proceedings will be to determine (1) the "adverse affects" of the rules upon library and educational users, (2) the significance of licensing alternatives ("pay per use") and ultimately, (3) the particular classes of works that should be exempted from the scheme.

The library community did not ask for this structure, but it was offered as the best compromise that Congress could fashion. Since the burdens of obtaining relief fall on the proponents, library and educational institutions will have to make a persuasive record that justifies appropriate relief. It will be a challenge, but one that will help shape the future role of libraries in the digital age.

B. OSP Limitation of Liability

Creation of a new limitation on liability for service providers was perhaps the most complex task of the DMCA legislators. Balancing a myriad of interests and fashioning legislation for technology that is arcane and evolving are no simple tasks. Thus, the OSP limitation represents a very important contribution of the DMCA to copyright law. Also, its process – Congressional committee supervised negotiations - may also serve as a model for preparing legislation on issues that require discreet balancing of concerns of contentious but politically powerful interests.

For libraries, the initial issue is whether to assert status as a "service provider" and register with the Copyright Office. This is not an easy question to resolve. Certainly, the definition of "service provider" is broad enough to encompass many of the online activities of libraries. However, the legislation’s complex rules will require very careful compliance practices, including use of sophisticated software and systems and development of notification and termination policies. Even though monitoring of sites is not required, once a service provider receives notice of an infringement, actions such as "notice and take down" or "counter notice and put back" must be taken.

In weighing the benefits of coming within the terms of the statutory limitation, libraries should appreciate the reduction of potential damages for innocent, but contributory, infringements. For libraries that are part of larger, educational institutions, exposure to money damages from cyberspace violations by patrons, students, and faculty, as well as third parties, must be deemed a real threat. It should be understood that online copyright infringements are "hot button" issue for publishers. It should be anticipated that a test case or two will be brought in the near future.

Further, it must be underscored that even though monetary damages may be avoided, all service providers are subject to all other copyright legal remedies, including injunctive relief. It is not known whether content owners will use the website list of service providers maintained by the Copyright Office as the "go to group," receiving all notifications of infringements. Since each OSP is an online ramp to the cyber-violations, whether more than a limited group will receive infringement notices is not yet known. If many owners adopt an approach that blankets the potential universe of OSPs, then those identified service providers could be flooded with requests for take down. Such a situation could render operations at small to medium sized libraries into an immediate state of chaos. Then too, how much technological support in terms of advanced software and personnel is required to satisfy the legal strictures is unknown. Perhaps the wiser course for most libraries that do not host web sites or sponsor chat rooms is to wait for the dust to settle and see how implementation of the new rules proceeds.

C. Study of Distance Education in Networked Environments

Although DMCA did not include explicit expansion of protection for educational activities involving the Internet, the creation of a Congressional-mandated study of the subject by the Copyright Office is important and deserves immediate and active attention by the library community. From its inception, copyright law has balanced the rights of owners and the rights of users. Despite copyright owners proclaiming the need for fair return on their creative works and the importance of securing economic rewards in a global economy, principles like fair use and exemptions for classroom teaching and library preservation survive. Distance Education is the latest major battleground in the effort to balance educational interests in a federal law that increasingly emphasizes the commerce of copyright.

Extending the face-to-face and transmission exemptions to Internet education will not happen without aggressive and active participation by the library and educational communities. In the initial hearings held in January, 1999 by the Copyright Office, owners have already asserted there is no need to change the law. They argue licensing and other permissive approaches to incorporating works into course content will suffice. Moreover, they claim to be the primary producers of course texts and any exemption hurts their markets and damages them competitively. Unless educators are energized by the opportunity to create a new and important expansion of principles embodied in the current classroom and closed-circuit transmission limitations, no change will occur. The central points to be made include the following:

Obtaining clearances for spontaneous use of copyrighted works in online courses is virtually impossible.
Identifying copyright owners of certain works, like photographs, is so daunting as to make it a task not worth pursuing.
Licensing is not an acceptable alternative, because when offered, the price is often far too high to justify the use.
Unless the law is modified, the playing field for parties negotiating licenses is out of balance. Libraries and educators will find they have less leverage to negotiate fair terms for digital use within their communities.
The transaction costs associated with clearances and licensing requirements threatens to perpetuate or exacerbate the traditional disparities between "have" and "have not" communities that distance education and the Internet could otherwise help to mitigate.

Even if the Copyright Office Study proposes favorable changes in law – and that result is not certain at all - it will be a very difficult road to achieve reform. It is always easier to defeat legislation than pass it. But if the library and educational communities are unified in their desire to update copyright law exemptions so that online education is treated on a par with classroom learning, then there is a chance that reform can be accomplished in the near future. With Congressional and Presidential elections coming in the next year, education will be a very important electoral issue and distance education should be a central topic in all races.

D. Library Exemption Update

Updating Section 108 so that it enabled libraries to work in digital preservation was surprisingly hard fought. Even with the endorsement of the authors of the White Paper, it required extensive negotiations in the House and Senate. The content community is very nervous about allowing digital copies of works to exist anywhere without explicit authorization. In the end, this update is a modest, yet important, change for libraries that will make their task of maintain collections easier in a technologically advanced environment.

E. Copyright Term Extension and the Library Limitation

Suggesting that libraries should be able to exploit works that have lain fallow for decades should not strike one as an explosive proposal. Yet, the content community aggressively fought this notion to the very end, receding only as the legislation was poised to succeed or fail for another Congressional session. However, the unfinished business of the Term Extension Act remains the definition of "normal commercial exploitation." What does that mean? The Copyright Office, through the vehicle of regulations, will help determine the reach of the new exception that permits libraries to continue to freely use old works in the last twenty years of the extended year just like public domain works. For the library community, this is a vital concern, because maintenance of the public domain assures the role of libraries as archivists of history, not licensees of commerce.

Participation in the regulatory process that will define the terms and establish rules is a relatively efficient way to get one’s key points across. Just as was noted with regard to the anti-circumvention rulemaking and the distance education study, active participation in these administrative proceedings assures the library community’s voice will be heard at the opportune time and its views not ignored. Once the procedures are in place, libraries will be able to turn regularly to the Copyright Office website dedicated to enforcement of this new limitation and learn what works are claimed to fit within the definition of "normal commercial exploitation."

Even as the ink was drying on the newly enacted law, a lawsuit was being initiated to challenge the constitutionality of the Copyright Term Extension Act. A publisher that re-circulates public domain works has filed suit in Boston to declare the Act in violation of the "limited term" provision of the Copyright Clause of the U.S. Constitution, Article 1, Section 8. Since test case litigation requires several years to complete, nothing will happen overnight, but this is a case to watch.

F. Database – The Other Shoe

Without trying to sound like Chicken Little, it is nevertheless necessary to point out that the dramatic proposal to establish database protection for collections of information unprotected by copyright law could have a devastating impact on what librarians think of as "the public domain." A database bill would effectively create a new body of material comprised of facts, data and government works that could not be reproduced without consent. A new licensing regime would be created with broad implications for digital communications and scholarship.

Although the database bill was deleted from the final version of the DMCA, it is fair to say its progress was only impeded. A new version of the bill has already been introduced in the 106^th Congress. Recognizing that the House of Representatives adopted the measure twice, librarians cannot rest on their laurels. There is an urgent necessity to maintain effective political alliances that speak to the value of free access to facts, data and government works for purpose of education, scholarship, research and teaching. Although legislators heard and agreed with many of the arguments of the library community, have no illusion: database is the number one priority of publishing magnates like Reed Elsevier and West Publishing. They have made major strides in convincing Congress that protection of their investment in building and maintaining databases from theft is sound public policy.

This bill will be at the very top of the House Copyright Committee’s agenda in 1999. Maintaining a strong library presence on this issue is vital lest databases of facts, information and government works, become the next body of material removed from the public domain.