0.15 Copyright

Copyright

The framers of the U.S. Constitution sought to balance the rights of the creators of intellectual property and theclaims of the larger community. Article 1, Section 8, grants Congress the power to give “authors and inventors the exclusiveright to their respective writings and discoveries,” but it also specifies that such rights be granted only “for limited terms” andwith the purpose of promoting “the progress of science and the useful arts.” Today, because of the scale of investment that isrequired in order to create a unified cultural record online, the participation of commercial entities is essential, and yet manypeople (including most of those from whom the Commission heard) believe that the balance has been upset and that the propertyclaims of rights holders are interfering with the promotion of intellectual and educational progress.

The most notable recent U.S. Supreme Court decision on copyright—Eldred v. Ashcroft (2003)—involved someonewho was seeking to disseminate works in the humanities to a broad public. Eric Eldred was the organizer of the Eldritch Press Website,

Obtaining permission to digitize books, even if they are out of print, entails high transaction costs: it can bedifficult, if not impossible, to locate the current owners of copyrighted works. In a study assessing the feasibility ofobtaining permission from 209 publishers to digitize 277 titles published between 1920 and 2000, librarians at Carnegie MellonUniversity found that a quarter of the publishers could not be located, only half of the publishers responded after repeatedefforts to contact them, and, in the end, permission was granted for only 25% of the titles.

It is equally frustrating that many lesser-known creative and cultural works—not just books, but alsophotographs, drawings, films, and other materials—from the 1920s and later years cannot be made available online simply because therights holders are difficult or impossible to find. Because recent copyright law has eliminated the requirement that rights holdersformally apply for renewal, the copyrights of these so-called orphan works are automatically extended. Although such works oftenlack commercial value, the expense and difficulty of locating the rights holders blocks their digitization. Most institutions want toavoid the risk of litigation should rights holders surface after the works have been made broadly accessible. In January 2006 theU.S. Copyright Office issued a report

Even more complex issues arise in providing access to unpublished works (manuscripts and letters, for example),a category of particular importance to the humanities. Many sound recordings, too, are effectively “protected” from being reproducedin the practice of scholarship until the latter half of the twenty-first century, when any scholar now engaged in research islikely to be dead.

Current copyright laws not only keep most twentieth-century works from becoming available in digital form butalso threaten the preservation of born-digital works. Although the copyright code currently has several important provisions thatenable libraries and archives to make copies for preservation, these provisions are threatened by the transition to digitaldistribution. Section 108 of the copyright code is one such provision. It allows libraries and archives to duplicate worksunder copyright (in quantities specified by case law) to preserve their intellectual content. This provision covers the right oflibraries and archives to copy works from one medium to another, such as brittle paper to microfilm or nitrate film to safety stock,and permits copying to digital form for preservation purposes (not for access). Yet it is not clear that all the forms of copyingneeded for secure digital archiving are allowable under the law.

The provisions of Section 108, created for the world of print, need to be recast for the age of digitalreplication. As the 1998 Digital Millennium Copyright Act (DMCA)demonstrates, when recasting copyright law, it is important to consider unintended consequences. The DMCA lacks all of the fairuse provisions outlined in Section 107 of the Copyright Act