Statement of Marybeth Peters
The Register of Copyrights
before the
Subcommittee on Courts and Intellectual Property
Committee on the Judiciary

United States House of Representatives
104th Congress, 1st Session

November 15, 1995

National Information Infrastructure Copyright Protection Act (H.R. 2441, and S. 1284)

Thank you for the opportunity to testify on this important piece of legislation, H.R. 2441, the "NII Copyright Protection Act of 1995," and S. 1284, the "National Information Infrastructure Copyright Protection Act."

The Copyright Office supports the goals and basic substance of all of the proposed changes to the Copyright Act. This statement explains the reasons for our support, and also sets forth suggestions for further consideration of the specific language of some of the bills' provisions.


The Copyright Office had some involvement in the work of the Administration's Information Infrastructure Task Force that led to the recommendation of the proposed legislation by the Working Group on Intellectual Property Rights in its report, "Intellectual Property and the National Information Infrastructure" (the "White Paper"). The Office participated in Working Group discussions, and had the opportunity to comment on drafts of the White Paper in progress. The Office also submitted written comments on the preliminary version of the report, known as the Green Paper. We appreciate the fact that a number of our comments were taken into account in the final report. Our statement today incorporates some of our prior comments on the Green Paper, but differs in some respects, reflecting our consideration of the changes made in the ultimate proposals of the White Paper.

The Copyright Office's written submission to the Committee and Subcommittee will be in two parts. In this part, we will address only the specific changes in the law that are proposed by the pending bills. In early 1996, we intend to submit a more in-depth analysis of issues raised by the application of the Copyright Act to the NII. Among other things, we will address some of the content of the White Paper that is not dealt with in the limited proposals presented here. The White Paper sets out a comprehensive summary and analysis of U.S. copyright law and its application in the digital environment, as well as a discussion of the international context. Its conclusions call for a mix of action and inaction, recommending that some areas of the law be changed, but others left untouched despite calls for change. The areas left untouched may be equally as significant as the proposed amendments, and our second submission will address them as well.

General Comments

The Copyright Office strongly endorses the purpose and general approach of the proposed legislation. In the context of the digital networked environment, it is critical to ensure adequate and effective protection of copyright, while maintaining the balance of interests that has made U.S. copyright law so successful in promoting and disseminating creativity. Unless this is accomplished, the NII will not achieve its full potential as a comprehensive source of entertainment and information, and more fundamentally, the public will be deprived of the maximum possible level of enrichment of culture and knowledge.

We agree with the Working Group that the general concepts of the copyright law as it has evolved over the past two centuries can be applied to the activities taking place today in the NII, and that only limited amendment is necessary to adapt the law to current digital technologies. We therefore support the principles behind the proposed amendments as well as most of their language. If enacted, the amendments will not significantly shift the balance struck by current law between owners and users of copyrighted works; rather, the clarifications that they entail will enhance certainty and predictability, enabling rights to be exercised and works to be used with greater assurance. The only aspects of the bills that may shift the balance would do so by expanding the exemptions from liability offered to libraries and to the visually impaired--furthering valid and laudable goals. The remaining provisions in new Chapter 12 promise to make a positive contribution in ensuring that rights will remain capable of effective enforcement in the digital environment; they do not go to the substance of the rights and should not affect the basic balance.

We do, however, have a few concerns about certain specific aspects of some of the bills' provisions. These concerns are essentially technical in nature, relating to how best to accomplish the provisions' underlying goals without causing unintended negative consequences, and should be able to be accommodated with relatively minor drafting changes. We would be pleased to work with Congress, the Administration, and the affected groups to find constructive solutions.

As the White Paper points out, the process begun by the introduction of these bills has international implications. The National Information Infrastructure cannot be contained within U.S. borders; inevitably, it will be part of an extensive global network. Similar issues arising from developing digital technologies are on the agenda in many other countries, as well as in the forum of multilateral treaty negotiations. Through the work of the Working Group, and the initiative of this Congress, the United States is at the forefront of legal analysis in this area. This gives us an invaluable opportunity to serve as a leader in helping to set the international agenda, and providing an example to other nations in structuring their responses to the digital challenge.

Finally, the Copyright Office notes that the U.S. is at only a preliminary stage of legislative analysis. We believe that the bills' limited proposals adequately address the current state of technology, and that the Working Group did an excellent job in assessing the areas of immediate need. Nevertheless, the proposals may offer only a short-term solution to the challenges posed by the digital world. Within the next few years, a more fundamental rethinking of the premises and structure of the Copyright Act may be necessary in order to craft a statute flexible and capacious enough to accommodate technology as it continues to evolve at the threshold of the twenty-first century. Although the basic concepts of copyright will in our view remain valid and appropriate, assumptions as to their manner of implementation may no longer fit.

The 1976 Copyright Act is based on the state of technology as of the mid-1970s--a technology involving hard copy and radio and television broadcasting as the essential means of dissemination. The drafters of the statute sought to be technology-neutral and forward-looking in their choice of terms and definitions. For nearly 20 years, they were successful. Toward the end of this century, however, the pace of change has accelerated, to the point where it may overtake their foresight. No one can predict with certainty today the paths that technology will take in the decades to come.

Over the next year or two, the Copyright Office therefore plans to explore the likely directions of new technologies of fixation, storage and dissemination, and to examine the question of how control may be maintained over the primary forms of exploitation in the future in order to assure the continued existence of a meaningful market for copyrighted works. In particular, we are concerned about maintaining the essential balance of the copyright system by preserving its most fundamental values: the ability to choose when and how to provide access to works; the availability of a smoothly functioning market for the licensing of uses, with appropriate exceptions to further public policy; and an appropriate understanding of the distinction between public and private use. In the long run we may need a law that focuses more on substance and less on form--a more "intangible" copyright law.

Statutory Proposals

The bills propose four areas of change in the copyright law: (1) several related amendments ensuring that the transmission of copies of a work is within the scope of the copyright owner's exclusive rights; (2) an amendment expanding the scope of the library exemption, primarily to allow the making of digital copies; (3) a new exemption for the visually impaired; and (4) a new Chapter 12, providing legal protection for the technology of copyright protection systems and for copyright management information. We will address each of these four areas in turn.

A. Amendments Relating to Transmission of Copies

Section 2 of the bill would make four separate but related amendments to the Copyright Act. First, the distribution right in section 106(3) would be amended to add the phrase "or by transmission" to the list of methods by which copies of a work can be distributed. Second, the definitions of "publication" and "transmit" in section 101 would both be amended. The phrase "or by transmission" would again be added to the end of the definition of publication. A new sentence would be added to the end of the definition of "transmit," reading: "To 'transmit' a reproduction is to distribute it by any device or process whereby a copy or phonorecord of the work is fixed beyond the place from which it was sent." Finally, section 602 would be amended to specify that the rules governing importation into the United States apply to any importation "whether by carriage of tangible goods or by transmission."

The Copyright Office supports all of these amendments in their entirety. In our view, they represent a helpful clarification of existing law at a time of rapid technological change.

1. Amendment to distribution right

The Copyright Office agrees with the Working Group that the transmission of a work over a communications network should be included within the scope of the copyright owner's exclusive rights. At this point in time, it appears likely that transmission may soon become the primary method of exploitation for works of authorship. If authors are to continue to have meaningful and adequate incentives for creation, it is therefore critical that they be able to control such uses of their works.

We believe that the Copyright Act in its present form can and should be read to encompass within the author's exclusive rights the right to transmit the work electronically to individual members of the public. The handful of courts that have addressed the issue so far have come to that conclusion. Such a use of a work has been held to involve the creation of a copy of more than transitory duration in the recipient's computer, implicating the reproduction right. If such copies are sent to members of the public, it will implicate the distribution right. And if the work is made visible or audible on the recipients' computers, it may implicate the rights of public display or public performance.

Nevertheless, there are some who have proposed different interpretations of the law. Since it may take years for the courts to establish a definitive position on this issue, and since the development of the NII is already well underway, it would be beneficial to clarify the law in order to remove any possible uncertainty. The proposed amendment certainly should not have any negative impact, as it does not create a new right but simply clarifies existing rights.

This solution is one that may need to be revisited in the near future. As technology evolves, in order to preserve adequate incentives for creation, Congress must ensure that the copyright owner will continue to control the basic means of exploitation of works of authorship--whatever they may be at a given point in time. We therefore need to develop concepts, and frame them in appropriate language, that will cover shifts in means of exploitation without the need for constant legislative updating. Thus, for example, if technology develops in such a way that transmissions of works may be made without the creation of a reproduction in the receiving computer's memory, the amended definition of "distribution" may no longer be sufficient to cover this important form of exploitation.

We are aware that some dissatisfaction has been expressed with the choice to clarify the law through the distribution right. In particular, some argue that all transmissions effect public performances of works; others take the position that every transmission results in a reproduction and should be addressed solely through that right. Any choice of a place to incorporate the concept of transmission, however, will be vulnerable to criticism in a world where separate markets have developed for the licensing of different rights. Some disruption of market structures is inevitable in circumstances of technological change. The bills represent a reasonable solution, minimizing market disruption to the extent possible. By amending the distribution right, rather than creating a new right, they clarify that transmission is one way of making copies of a work available to members of the public. In the course of any given transmission, other rights may also be implicated, making it necessary to obtain authorization from the appropriate licensing source or sources.

Since the amendment does not change existing law, it should not create any new liability, or shift the locus of responsibility for any infringing transmission.\1\


\1\ I since transmission in itself is not defined as an exclusive right, an intermediary in the trans-mission process would not thereby become directly liable. Only those who by means of the transmission engage in the act of distributing copies of the work to the public are direct infringers. (Depending on the circumstances, the intermediary might be subject to indirect liability through the doctrines of contributory infringement or vicarious liability.)

Rather, the amendment avoids the possibility that liability will be lessened by an overly restrictive interpretation of the statute. The right remains "distribution to the public"; the possibility of accomplishing that distribution through a transmission is now made explicit, so that courts will not erroneously perceive a gap in the law.

There may also be other areas of concern that will have to be addressed in the future. As discussed above, under current interpretations of the Copyright Act, and based on current technology, every transmission of a work over a network will result in the creation of a reproduction of that work, and therefore constitute an act of prima facie infringement. Arguments have been made that some of these reproductions should be privileged, particularly where they are incidental and transient. In addition, online service providers are greatly concerned that they are potentially liable for every infringing transmission made through their services, no matter how responsibly they may act. These issues raise important policy considerations that deserve careful attention. They could entail changes in the law that significantly shift the balance between owners and users, which should not be made lightly, and require further study. In the interim, these issues should not delay the immediate clarification and updating of current law through enactment of the limited proposals in the pending legislation.

2. Amendment to definition of "publication"

The Copyright Office also endorses the addition of "transmission" to the definition of "publication," as a means of distribution to the public. First, assuming that a digital transmission creates a copy in the recipient's computer, then copies clearly can be made available to the public through transmission, and the amendment simply confirms that reality. Second, the definition of "publication" was written to parallel the language of the distribution right in section 106. If the latter is amended, the former should be amended identically, or the two concepts will no longer be coextensive. Third, including transmission as a means of publication is appropriate from a policy perspective . The key to publication should be whether or not copies or phonorecords of the work have been made available to the public, in whatever form is desired. When members of the public have received copies of the work through digital networks, the work has been published to the same extent as if physical disks had been purchased at a store.

In fact, the amended definition of publication is consistent with the Copyright Office's interpretation of existing law, and with our own internal practices. Since the early 1980s, we have accepted for registration as published works those works whose owners have made copies available through online networks.

Amending the definition of publication may have a number of ramifications for particular works, since application of many of the provisions of the Copyright Act varies depending on whether a work is considered published or not. In general, as the White Paper points out, copyright owners have more obligations and narrower rights when their works are published. Most notably, published works are more vulnerable to the defense of fair use, and fall within more of the Copyright Act's specific exemptions. See, e.g., section 118(b). At this point, however, we do not see any situation where treating a work transmitted online as published would be inappropriate. The rationale for differing treatment of published and unpublished works continues to apply in this context, since the copyright owner has chosen to disseminate the work to the public.\2\


\2\ For just this reason, some courts have treated works that are technically unpublished but have been disseminated to the public through performance or display as subject to fair use to the same extent as published works. CITE.

Indeed, this clarification may assist the Library of Congress by making more works clearly subject to the mandatory deposit requirement for published works, thereby enriching the Library's collections and benefiting the public.

Nor should the amended definition of publication create international difficulties. Most importantly, we do not believe it would violate any of the United States' international treaty obligations.\3\


\3\The one potential problem in the international arena may be the definition of "published works" in Article 3 (3) of the Berne Convention for the Protection of Literary and Artistic Works, which concludes with the statement that "the communication by wire or the broadcasting of literary or artistic works . . . shall not constitute publication." In the context of the entire definition, however, it is clear that this exclusion is meant to exclude from the definition of "publication" activities equivalent to the right of public performance under U.S. law, and to limit the definition to activities involving reproduction. Throughout the Berne Convention, the concept of "communication by wire" is coupled with broadcasting or other public performance, and treated as a subset of performance rights. See Art. 10bis; Art. llbis(l); Art. 14 (l). The concept does not appear to cover digital delivery of copies. Accordingly, we do not believe that the amended definition would conflict with Berne.

Although fewer foreign works might be subject to protection in this country, since if published, they must fall within certain conditions for national eligibility (see section 104), this result seems unlikely to cause problems.

3. Amendment to definition of "transmit"

The proposed amendments to the distribution right and the definition of "publication" both involve the use of the term "transmission." "Transmit" is a defined term in section 101 of the Copyright Act. Accordingly, the definition should be made to fit the new contexts in which the term will be used, and the legislation therefore proposes a conforming change.

The current definition of "transmit" is limited to explaining what it means to transmit a performance or display. It is not surprising that only performances and displays are covered, since the technology in existence at the time the definition was drafted was radio and television broadcasting. With the development of electronic digital transmission, it has become possible to transmit works in ways that may not involve a performance or display, either during the transmission process or at the end point of the user's computer terminal. It is therefore important that the definition explain the meaning of transmittal of a reproduction as well.

Under the amended definition, a given transmission may implicate the reproduction right as well as the rights of public performance or display. It may be argued that this complicates the question of licensing, making it less clear what person or organization may be the appropriate source of rights. In our view, however, these same rights may all be implicated under current law, and the proposed change to the definition only clarifies the situation.

4. Amendment to importation right

Finally, the legislation would amend the importation right contained in section 602 of the Copyright Act to make clear that a work may be imported by transmission as well as by carriage of tangible goods. Again, the Copyright Office supports this amendment.

The marketplace for copyrighted works is becoming increasingly global. Through the technology of digital transmission, copies of works may be sent from abroad to recipients in the U.S. even more easily than tangible goods may be carried across the border. If the copyright owner does not wish to have his work made available in this country, or wishes to impose different terms and conditions on its availability here in order to satisfy economic goals or legal concerns, he should retain that option after the work has been digitized. That option is provided by current law to the extent that the transmission involves a reproduction of the work; the amendment would remove any ambiguity on this point.

It is true that, as the White Paper recognizes, the importation right will be difficult to enforce in the digital context as a practical matter. Customs cannot seize a transmission at the border. But if the act itself is clearly prohibited, the copyright owner has the ability to pursue the importer even if none of his other exclusive rights have been violated.\4\

\4\ We recognize that the implementation of an importation right in this context may raise privacy concerns. Those concerns can and should be dealt with directly on their own merits, by regulating as appropriate the ability of the government or private litigants to monitor private networks communications.

B. Exemption for Libraries

The legislation also proposes a broadening of section 108, commonly referred to as the library photocopying exemption. The White Paper states that the purposes of the proposed changes are 1) to accommodate the reality of the computerized library by allowing the preparation of three copies of a work in digital form, with no more than one copy in use at any time (while the others are archived); 2) to recognize that the use of a copyright notice on a work is no longer mandatory; and 3) to authorize the making of digital copies for purposes of preservation.

The Copyright Office commends the Working Group and the committees for responding to the concerns of libraries in adapting to the digital environment. We support the inclusion of such an amendment to section 108, but believe that the proposed language requires some fine tuning.

In making any change to section 108, its history must be kept in mind. The evolution of section 108 was a difficult process; the Register of Copyrights in 1983 characterized it as "turbulent." See Report of Register of Copyrights on Library Reproduction of Copyrighted Works 12 (1983). The section represents the culmination of a hard-fought battle, and reflects Congress's intended balancing of the rights of creators and the needs of library users of copyrighted works. Changes to section 108 must be considered in light of that careful balance.

This is a separate question from whether the right represents good copyright policy.

1. Copies in digital form

The most far-reaching change in Section 108 is the inclusion of the word "digital." The amendment would allow libraries to make three digital copies for the purposes of preservation of an unpublished work or replacement of a published work, if certain conditions are met. Present law limits such activity to facsimile copies, and the legislative history clearly shows that Congress in 1976 did not intend to include reproduction of a work "in 'machine readable' language for storage in an information system." Rather, the exemption was intended to apply only to reproduction "by microfilm or electrostatic process." H.R. Rep. No. 1476, 94th Cong., 2d Sess. 75 (1976).

The Copyright Office endorses the expansion of section 108 to cover digital copies, if their use is appropriately limited. Similar concerns have been raised in the past. During the process of preparing the Register's 1983 Report on Library Photocopying, the National Library of Medicine proposed amending 108(c) to create a broad privilege for libraries permitting preservation of published works, and to broaden the scope of the phrase "facsimile form" to include a different medium. In the Report, the Register stated that libraries should be able to employ new preservation techniques, provided that the legislation incorporated adequate copyright controls, with respect to both the preservation copying and the information supplying functions of libraries. 1983 Report at 340. He recommended a thorough review of these issues by library, user, author and publishing communities, with a view to developing a common legislative position.

To date, these communities have not pointed to any inadequacy in existing section 108's copyright controls. Certainly the restriction in subsection (b), which limits to facsimile rather than digital form any copy that is distributed to another library, is one source of such control.

2. Three copies

One of the most important limitations in section 108 is that all copying must consist of the preparation of "no more than one copy or phonorecord" at a time. Since 1978, that has been the simple, across-the-board rule. As the 1983 Report of the Register noted, some multiple copying may be excused as fair use; but multiple copies are not exempted by section 108.

We understand that the increase to three exempted copies has been proposed in response to librarians' expressed concerns about their preservation activities. In the area of library preservation, as a matter of practice, three copies are normally made. One copy is made available to the public; one is a back-up copy; and the third is the "doomsday" copy stored in an off site, secure location. The preferred preservation technology at this point is microform; digital technology has not been used extensively for preservation activities. That situation is changing, however, in part because of the searching capabilities associated with digital archives, which make access to information easier. Although standards have not been agreed on, we are told that preservation in digital form would also require three digital copies, which would be allocated the same way as the microform versions.

Since the purpose of increasing the exemption to three copies relates only to preservation activities, it would be preferable not to change the number of copies specified in section 108(a), which governs all types of library reproduction, but to tie the three copies directly to preservation. This would involve subsection (b), which deals with preservation of unpublished works, and subsection (c), which deals with replacement copies for published works. We note for the record that subsection (c) is not a general preservation provision; only where the library's copy of the work is deteriorating would the activity be considered preservation.

We would be pleased to assist in redrafting subsections (a), (b) and (c) to accomplish this clarification.

3. Copyright notice

The Copyright Office understands the purpose of the proposed change to subsection (a) allowing libraries to omit the notice of copyright if it does not appear on the copy or phonorecord reproduced, and does not oppose it. We would prefer, however, that the present language be retained, or, in the alternative, that the proposed language be broadened to reflect the current library practice of including on the reproduction at least a legend concerning copyright.

In the past, there was some disagreement between librarians and publishers as to what was required by section 108(a)(3). Did "a notice of copyright" mean the statutory copyright notice described in sections 401-403, or did it have a more general meaning? In the 1983 Library Photocopying Report, the Register noted that the legislative history was ambiguous, and that "the law itself gives some support to both positions."

The practice in most libraries today with respect to the section 108 notice requirement is to include the following legend: "NOTICE: THIS MATERIAL MAY BE PROTECTED BY COPYRIGHT LAW (TITLE 17 U.S. CODE)." In light of this practice, the Copyright Office did not recommend changing section 108(a)(3) when the general requirement of notice was eliminated in the Berne Convention Implementation Act.

Many works published today continue to bear copyright notices. However, much of the material reproduced under section 108 consists of articles published in periodicals. The usual practice in a periodical is to include a single notice for the periodical as a whole; most individual contributions do not bear their own notice. Moreover, often only portions of a work may be reproduced, and the notice may not appear on those portions. If a reproduction of a copyrighted work bears a statutory notice of copyright, that notice should be reproduced; however, for those reproductions that do not contain a notice, we believe it is helpful to have libraries continue their present practice of including the legend, as a reminder to users that the work may be protected by copyright.

C. Exemption for the Visually Impaired

The proposed new section 108A would provide an exemption for the visually impaired, allowing non-profit organizations to reproduce and distribute to them, at cost, "a Braille, large type, audio or other edition of a previously published literary work in a form intended to be perceived by the visually impaired," if the owner of the U.S. distribution right has not entered the market for such editions within one year after the work's first publication. The exemption would go well beyond the special treatment provided for the blind and physically handicapped under existing law, which establishes forms and procedures, in connection with an application for copyright registration for certain nondramatic literary works, for the voluntary granting of a license to the Library of Congress to reproduce and distribute the work in Braille or similar tactile symbols, or in a phonorecord. See 17 U.S.C. section 710; C.F.R. section 201.15.\5\


\5\ Another section of the Copyright Act exempts certain nonprofit performances of nondramatic literary works "by or in the course of a transmission specifically designed for and primarily directed to blind or other handicapped persons who are unable to read normal printed material as a result of their handicap." 17 U.S.C. Section 110(8).

The goal of the new exemption is to permit this audience meaningful access to copyrighted works, including copies in digital format to be read with the aid of software and computer equipment. The Copyright Office fully endorses this goal. We recommend, however, that the language of the proposed section 108A be refined, in consultation with the affected groups, to ensure that it provides only what is needed to accomplish the goal, while preserving essential protections for copyright owners.

1. Background

New technology provides expanding opportunities for visually impaired readers who are computer-literate and computer-equipped to have greater access to information and published works. Blind or partially sighted readers can use technology-assisted reading tools such as speech synthesizers and stand alone reading machines, refreshable braille displays, enlarged screen displays, braille embossers and braille printers for creating braille and print on the same page, and portable electronic note takers.

During the past few years, national organizations serving blind and visually handicapped readers, including Recording for the Blind (RFB) and the American Printing House for the Blind (APH), have been negotiating with publishers to secure nonexclusive blanket licenses for reproduction of new publications in various alternate formats, particularly for textbooks adopted by state education departments. The formats under consideration include braille, recorded and electronic formats (to be used in braille printing and for use with personal computers), together with equipment for refreshable braille, paper braille, screen character enlargement and synthetic speech.

Additional responsibilities have recently been imposed on school textbook publishers by newly enacted state braille bills. Approximately thirty states have adopted various versions of these bills, which require publishers to provide electronic versions of adopted textbooks in disk form to state education departments in order to make these materials available in a computer-accessible format capable of braille reproduction. These state laws place considerable burdens on publishers because of the lack of standardized criteria.

2. Issues to be addressed

The Copyright Office perceives several problems in the proposed new Section 108A. They involve: a lack of clarity of coverage for works in digital format; the definition of the audience to be served as the "visually impaired"; the one-year waiting period; the inclusion of large type books; and the choice of the term "non-profit organization" to identify the recipients of the exemption.

a. digitized format

The proposed amendment does not clearly grant access to digitized versions of works as needed by blind and visually handicapped readers. While the wording "other editions of previously published literary works in forms intended to be perceived by the visually impaired" may be interpreted to include versions of works that are distributed in an electronic digital form accessible through adaptive equipment, as well as in other forms not yet developed, the language is ambiguous. In order to avoid excluding this audience from the benefits of computer-assisted technology, it would be helpful to provide clarification in either the statutory language or the legislative history.

At the same time, any statutory language added to the Copyright Act to provide digitized versions of published works for eligible users must be circumscribed appropriately to ensure that publishers' legitimate interests are protected. In particular, digitized versions made accessible under this provision must not be able to be retransmitted to noneligible users so as to impact on existing markets. Representatives of visually handicapped readers and publishers should work together to draft language that establishes a satisfactory balance between access and protection.

We also note that it may be advantageous to create a uniform national system for deposits in a digital repository for such electronic text versions for use by visually handicapped users. Creation of such a repository is under discussion by publishers and representatives of the blind community, and could also entail creation of a national centralized database listing all such digitized works.

b. "visually impaired"

There is a definitional problem caused by the statutory language labeling the targeted audience as "visually impaired." Other federal laws providing access to works for this audience, as well as section 710 of the Copyright Act, utilize a different term, "blind and physically handicapped," to define the class eligible for benefits. These laws include the Pratt-Smoot Act, as amended, and the statutes authorizing services provided by the National Library Service for the Blind and Physically Handicapped (NLS/BPH) of the Library of Congress since 1931. See 2 U.S.C. section 135a, as amended by P.L. 89-522.

Through the National Library Service, there is already in place an extensive nationwide system for certification of eligible readers, administered through a network of state and local libraries and other agencies. Service is provided only to those "blind and physically handicapped" readers who have been certified under federal regulations administered by NLS as "unable to read standard printed materials" by reason of visual or physical limitation. This broader class of eligible readers, going beyond the "visually impaired," achieves the goals of the proposed legislation in a more inclusive way. Those organizations currently producing reading materials and library services for blind individuals also serve physically handicapped persons unable to use standard print, with approximately 10% of NLS/PBH Library of Congress eligible readers falling into the latter category.

In order to take advantage of existing administrative structures and interpretations, and to avoid any confusion with overlapping services, the Copyright Office urges that any changes enacted in the copyright law to benefit the same community of readers reflect the same definitional terms and criteria as the NLS program, rather than establishing a separate class of eligible users.

c. one-year waiting period

The bills would grant the exemption only after a waiting period of one year following first publication of the work. This waiting period significantly reduces the value of the exemption. Blind and physically handicapped readers have a legitimate need for prompt and timely access as soon as possible after works become available to the general reading public, and interest is likely to have declined substantially by a year later. For many works, access would be provided too late to be of real benefit to eligible readers. Textbook materials in particular are commonly out of date within one to two years, superseded by new editions. In fact, the actual time elapsed will be considerably longer: the one-year waiting period to ensure that the publisher will not enter the market, plus the six to twelve month production period that may be required to produce the work in special format. To insure a more timely release of the work in alternative format, NLS and other agencies producing reading materials for eligible blind and physically handicapped readers may be forced to forego the benefits of new section 108A, and to continue their present costly and time-consuming policy of requesting permissions from copyright holders.

Moreover, for most of the formats covered by the exemption, eliminating the one-year waiting period should not cause significant harm to copyright owners. Given the economics of the blind and physically handicapped community (according to some estimates, 80% of this community is unemployed and not current users of commercially available copyrighted works), copyright owners do not now produce editions for use by blind and physically handicapped readers; the market is occupied by non-profit agencies.

In particular, there is no viable commercial market for braille books in the United States, and production of virtually all such publications is subsidized by the U.S. government.

As to audio books, although there is a large and growing sector of publishers producing and distributing audio books for the commercial marketplace, few, if any, of those commercially produced audio books would meet the national standards required for reproduction and distribution to the eligible readers of NLS/BPH.\6\


\6\ Audio books produced for the commercial marketplace are generally not suitable for use by blind and physically handicapped readers. Commercially produced audio books are often either condensations or dramatizations with sound effects, rather than faithful complete narrations of the printed originals. Furthermore, books narrated for the general audio book market lack the detailed verbal descriptions of all pagination and graphical materials, including tables, charts, illustrations and diagrams, which need to be described and represented in narrative form for the blind and physically handicapped.

Moreover, audio books recorded by NLS and other organizations serving blind and physically handicapped readers are now recorded at speeds slower than commercial recording speeds, requiring the use of special playback equipment available only to certified eligible readers. The works included in the special recorded versions are therefore not accessible to the general public, ruling out any competition with commercially recorded versions made available simultaneously by publishers. The year-long delay therefore seems unnecessary for these formats.

d. large type books

On the other hand, there is a large and growing commercial market for books published in large print format for a general readership, available through traditional publication distribution channels and widely purchased by public libraries. And virtually none of the major government and non-profit producers of alternative versions for blind and physically handicapped readers prepare materials in large print. For these reasons, the Copyright Office recommends excluding large type books from the exemption.

e. "non-profit organization"

Proposed section 108A makes the exemption from liability available to "non-profit organizations" only. This term may be both too broad and too narrow. It might be preferable to limit the non-profit organizations covered by the exemption to those that specifically provide reading and library services to blind and physically handicapped readers. On the other side, more than 95% of the reading materials produced for blind and physically handicapped readers in the U.S. is issued by federal, state and local governmental units. We therefore recommend ensuring that appropriate government agencies are covered, either explicitly in statutory language or by a clarifying statement in the legislative history.

D. New Chapter 12: Copyright Protection Systems and Copyright Management Information

1. Circumvention of copyright protection systems

The bills propose a new section 1201, which reads:

No person shall import, manufacture or distribute any device, product, or component incorporated into a device or product, or offer or perform any service, the primary purpose or effect of which is to avoid, bypass, remove, deactivate, or otherwise circumvent, without the authority of the copyright owner or the law, any process, treatment, mechanism, or system which prevents or inhibits the violation of any of the exclusive rights of the copyright owner under section 106.

The Copyright Office supports the concept of outlawing devices or services that defeat copyright protection systems. One of the most serious challenges to effective enforcement of copyright in the digital environment is the ease, speed and accuracy of copying at multiple, anonymous locations. In order to meet this challenge, copyright owners must rely on technology to protect their works against widespread infringement. But every technological device that can be devised for this purpose can in turn be defeated by someone else's ingenuity. Meaningful protection for copyrighted works must therefore proceed on two fronts: the property rights themselves, supplemented by legal assurances that those rights can be technologically safeguarded.


/7/ Current law does establish some liability for the sale of devices that are used by others to infringe copyrights, under the doctrine of contributory infringement. The standards developed by the courts are quite liberal from the manufacturer's point of view, allowing the freedom to manufacture and sell any device that "is widely used for legitimate, unobjectionable purposes . . . [and is] capable of substantial noninfringing uses." Sony Corp. v. Universal City Studios, Inc., 464 U.S. 417, 442 (1984). Very few devices will be so narrow in potential application that their sale will support a finding of contributory infringement. Compare Vault Corp. v. Ouaid Software Ltd., 847 F.2d 255 (5th Cir. 1988) (no liability where copy protection defeating program could be used to enable purchaser to make lawful archival copies as well as infringing copies), with Sega Enterprises Ltd. v. MAPHIA, 857 F. Supp. 679 (N.D. Cal. 1994) (preliminary injunction issued against vendor of special copiers, the "only substantial use" of which was to copy copyrighted video games).

Conceivably the sale of a copyright protection defeating device might qualify as "induc[ing], caus[ing] or materially contributing to the infringing conduct of another." Gershwin Publishing Corp. v. Columbia Artists Management, Inc., 443 F.2d 1159, 1162 (2d Cir. 1971). Because this interpretation of contributory infringement may reach beyond current law, and because of the restrictive application of the doctrine in the context of equipment manufacture and sale, this body of law does not satisfactorily address the problem of copyright protection defeating devices.

We do, however, have some concern about the breadth of the language of section 1202 as drafted. First is the reference to the forbidden device's "primary purpose." "Purpose" is often difficult to prove, and which of several potential purposes is "primary" may not be evident. Second is the alternative standard, "or [primary] effect." It is possible that a device intended for entirely legitimate purposes may be put to use primarily to defeat copyright protection technology, or that some unrelated function of a device might unintentionally interfere with such technology. This latter danger is exacerbated by the fact that the technology protected is not only that which "prevents" infringement but also that which "inhibits" it. As a result, even a process which is not intended to prevent infringement but happens incidentally to make infringement more difficult to accomplish cannot be interfered with. Although the legislation includes an "innocent violation" defense allowing the court to reduce or remit damages, it would be preferable to define the offense so as not to potentially sweep within its scope legitimate business behavior.

Another question raised by the provision is who has standing to sue for a violation. In section 1203(a), the statute specifies that "any person injured" may bring a civil action. Clearly this language could include others besides the copyright owner. Even if the language were read restrictively to cover only copyright owners, the result could be a multiplicity of suits, where different rights in a work are owned by different parties or where the same device can be used to defeat copyright protection systems used in connection with an infinite number of copyrighted works.

Some have criticized this provision on the ground that it prohibits devices that make it possible for users to engage in lawful copying for legitimate purposes. They point out that a copy protection system may sometimes be circumvented in order to engage in an unauthorized exercise of rights that qualifies as fair use, such as decompilation in appropriate circumstances, or to gain access to material in the public domain. We understand these concerns, but do not believe that they undermine the justification for section 1201. It has always been a fundamental principle of copyright law that the copyright owner has no obligation to make his work available to the public. See Harper Row Publishers, Inc. v. Nation Enterprises, 471 U.S. 539 (1985). He may choose to keep it locked in his office, or to provide access only upon certain terms. Regardless of this choice, the law can make it illegal to break into his office, even if the ultimate object is to make a fair use of the work./8/


/8/ Section 1201 does include language intended to provide leeway for devices that make possible such legally privileged copying. The phrase "without the authority of the copyright owner or the law,il as explained in the White Paper, is meant to indicate that there is no liability if the law would authorizes the ultimate object of the circumvention. In other words, if the primary object is permissible copying, either because of the operation of an exception to the copyright owner's rights or because the work is not protected by copyright, the sale of the device would also be lawful. We have some doubt as to whether this language achieves the objective, since as drafted, it appears to refer to the law authorizing the circumvention itself, rather than the exercise of copyright rights. In any event, for the reasons given above, we do not believe such an exception is necessary.

To some extent, these issues may be addressed through proper interpretations of the statute, guided by legislative history. Nevertheless, there is some risk that the uncertainties involved in the provision as drafted may chill developing markets. We therefore recommend that the language be narrowed in order to provide more certainty. A broad range of industries and user groups may be affected, and we urge that they work together to develop specific language that will avoid the pitfalls while accomplishing the legislation's goal. If the coverage can be properly calibrated, section 1201 should be a major step toward achieving a fully functional NII.

2. Integrity of copyright management information

The Copyright Office believes that the easy availability of information about the authorship, ownership and licensing terms of works will also be critical to the success of the NII. Such information will make it possible for the public to gain access to and enjoy works while respecting the rights of authors and other owners. If obtaining such information is difficult, people are more likely to forego the NII's benefits or resort to unauthorized uses. For these reasons, the Office is developing an electronic registration and recordation system with a rights management component that will allow such information to be collected and disseminated electronically.

We agree with the Working Group that legal protection for such information is necessary in order to ensure its accuracy. It is in everyone's interest, both owners and users of copyrighted material, to be able to rely on the information provided to facilitate identification and licensing. The proposed new section 1202 represents a reasonable approach to this goal: it does not mandate the provision of any particular item of information, but guarantees the integrity of whatever items are in fact provided.

The Copyright Act already contains a provision forbidding the alteration or provision of false information about a copyrighted work. This protection, however, is limited in scope, applying only to notices of copyright and to statements made in applications for registration. Accordingly, under current law, other types of information about a copyrighted work could be modified or deleted without liability. The proposed legislation would remedy this state of affairs.

We nevertheless have a few questions about section 1202, primarily relating to its interaction with provisions of existing law. First, the prohibited acts overlap with the criminal offenses set forth in section 506 of the Copyright Act, which share the same general goal of protecting the integrity of copyright information. Section 506(a) makes it unlawful for any person to, "with fraudulent intent, place[] on any article a notice of copyright or words of the same purport that such person knows to be false," or to publicly distribute or import for distribution, with fraudulent intent, any article bearing such false notice or words. Section 506(b) imposes criminal liability on "[a]ny person who, with fraudulent intent, removes or alters any notice of copyright appearing on a copy of a copyrighted work." To some extent, these sections would be superseded by the broader prohibitions of section 1202. Section 506 goes beyond section 1202 in at least two respects: it deals specifically with copyright notices, which include important publication dates; it also applies to representations made in applications for registration. One possibility would be to broaden the definition of "copyright management information" in section 1202 to cover notices and applications, and to delete section 506. In addition, the remedies provided for violation of section 1202 are disproportional with those for violation of section 506; monetary penalties are considerably higher, and prison terms are possible. Whatever policy judgments are made, these provisions should be harmonized.

It also seems inconsistent to provide criminal penalties for violation of the integrity of copyright management information but not for the circumvention of copyright protection systems. If anything, it is the latter that appears to pose a greater potential threat to the economic interests of copyright owners.

Finally, we question whether the coverage of this provision is somewhat overbroad. Given the potential for substantial liability, and even felony criminal penalties, perhaps some exceptions should be provided. De minimis alteration, for example, or clarification or supplementation of the information provided by the copyright owner, arguably should not give rise to damages. Similarly, in a dispute over authorship or ownership, such as often occurs in the context of joint works or works made for hire, it may be inappropriate to impose liability when someone acting in the good faith belief that she has a valid legal claim alters copyright management information by adding or substituting her own name as author or owner.


The proposed amendments are a positive step in equipping the Copyright Act to deal with current digital technology. The Copyright Office supports each of the bills' provisions, with the caveats discussed above. We look forward to working with you to resolve the issues that have been raised, in order to move forward expeditiously with this important legislation.