[House Hearing, 113 Congress]
[From the U.S. Government Publishing Office]



 
                       PRESERVATION AND REUSE OF 
                           COPYRIGHTED WORKS

=======================================================================



                                HEARING

                               BEFORE THE

                            SUBCOMMITTEE ON

                     COURTS, INTELLECTUAL PROPERTY,

                            AND THE INTERNET

                                 OF THE

                       COMMITTEE ON THE JUDICIARY

                        HOUSE OF REPRESENTATIVES

                    ONE HUNDRED THIRTEENTH CONGRESS

                             SECOND SESSION

                               __________

                             APRIL 2, 2014

                               __________

                           Serial No. 113-88

                               __________

         Printed for the use of the Committee on the Judiciary


      Available via the World Wide Web: http://judiciary.house.gov




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                       COMMITTEE ON THE JUDICIARY

                   BOB GOODLATTE, Virginia, Chairman
F. JAMES SENSENBRENNER, Jr.,         JOHN CONYERS, Jr., Michigan
    Wisconsin                        JERROLD NADLER, New York
HOWARD COBLE, North Carolina         ROBERT C. ``BOBBY'' SCOTT, 
LAMAR SMITH, Texas                       Virginia
STEVE CHABOT, Ohio                   ZOE LOFGREN, California
SPENCER BACHUS, Alabama              SHEILA JACKSON LEE, Texas
DARRELL E. ISSA, California          STEVE COHEN, Tennessee
J. RANDY FORBES, Virginia            HENRY C. ``HANK'' JOHNSON, Jr.,
STEVE KING, Iowa                       Georgia
TRENT FRANKS, Arizona                PEDRO R. PIERLUISI, Puerto Rico
LOUIE GOHMERT, Texas                 JUDY CHU, California
JIM JORDAN, Ohio                     TED DEUTCH, Florida
TED POE, Texas                       LUIS V. GUTIERREZ, Illinois
JASON CHAFFETZ, Utah                 KAREN BASS, California
TOM MARINO, Pennsylvania             CEDRIC RICHMOND, Louisiana
TREY GOWDY, South Carolina           SUZAN DelBENE, Washington
RAUL LABRADOR, Idaho                 JOE GARCIA, Florida
BLAKE FARENTHOLD, Texas              HAKEEM JEFFRIES, New York
GEORGE HOLDING, North Carolina       DAVID N. CICILLINE, Rhode Island
DOUG COLLINS, Georgia
RON DeSANTIS, Florida
JASON T. SMITH, Missouri
[Vacant]

           Shelley Husband, Chief of Staff & General Counsel
        Perry Apelbaum, Minority Staff Director & Chief Counsel
                                 ------                                

    Subcommittee on Courts, Intellectual Property, and the Internet

                 HOWARD COBLE, North Carolina, Chairman

                TOM MARINO, Pennsylvania, Vice-Chairman

F. JAMES SENSENBRENNER, Jr.,         JERROLD NADLER, New York
Wisconsin                            JOHN CONYERS, Jr., Michigan
LAMAR SMITH, Texas                   JUDY CHU, California
STEVE CHABOT, Ohio                   TED DEUTCH, Florida
DARRELL E. ISSA, California          KAREN BASS, California
TED POE, Texas                       CEDRIC RICHMOND, Louisiana
JASON CHAFFETZ, Utah                 SUZAN DelBENE, Washington
BLAKE FARENTHOLD, Texas              HAKEEM JEFFRIES, New York
GEORGE HOLDING, North Carolina       DAVID N. CICILLINE, Rhode Island
DOUG COLLINS, Georgia                ZOE LOFGREN, California
RON DeSANTIS, Florida                SHEILA JACKSON LEE, Texas
JASON T. SMITH, Missouri             STEVE COHEN, Tennessee
[Vacant]

                       Joe Keeley, Chief Counsel

                    Heather Sawyer, Minority Counsel


                            C O N T E N T S

                              ----------                              

                             APRIL 2, 2014

                                                                   Page

                           OPENING STATEMENTS

The Honorable Howard Coble, a Representative in Congress from the 
  State of North Carolina, and Chairman, Subcommittee on Courts, 
  Intellectual Property, and the Internet........................     1
The Honorable Jerrold Nadler, a Representative in Congress from 
  the State of New York, and Ranking Member, Subcommittee on 
  Courts, Intellectual Property, and the Internet................     2

                               WITNESSES

Gregory Lukow, Chief, Packard Campus for Audio Visual 
  Conservation, Library of Congress
  Oral Testimony.................................................     7
  Prepared Statement.............................................     9
Richard S. Rudick, Co-Chair, Section 108 Study Group
  Oral Testimony.................................................    25
  Prepared Statement.............................................    27
James G. Neal, Vice President for Information Services and 
  University Librarian, Columbia University
  Oral Testimony.................................................    32
  Prepared Statement.............................................    34
Jan Constantine, General Counsel, The Authors Guild, Inc.
  Oral Testimony.................................................    55
  Prepared Statement.............................................    58
Michael C. Donaldson, Esq., Partner, Donaldson & Callif, LLP
  Oral Testimony.................................................    78
  Prepared Statement.............................................    80
Jeffrey Sedlik, Professor, President and Chief Executive Officer, 
  Plus Coalition
  Oral Testimony.................................................    94
  Prepared Statement.............................................    96

          LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING

Material submitted by the Honorable Jerrold Nadler, a 
  Representative in Congress from the State of New York, and 
  Ranking Member, Subcommittee on Courts, Intellectual Property, 
  and the Internet...............................................   102
Material submitted by the Honorable Jerrold Nadler, a 
  Representative in Congress from the State of New York, and 
  Ranking Member, Subcommittee on Courts, Intellectual Property, 
  and the Internet, on behalf of the Honorable Judy Chu, a 
  Representative in Congress from the State of California, and 
  Member, Subcommittee on Courts, Intellectual Property, and the 
  Internet.......................................................   104

                                APPENDIX
               Material Submitted for the Hearing Record

Supplemental Statement of James G. Neal, Vice President for 
  Information Services and University Librarian, Columbia 
  University.....................................................   120
Supplemental Statement of Michael C. Donaldson, Esq., Partner, 
  Donaldson & Callif, LLP........................................   128
Prepared Statement of Allan Adler, General Counsel, Vice 
  President for Government Affairs, the Association of American 
  Publishers (AAP)...............................................   144
Prepared Statement of the Computer & Communications Industry 
  Association (CCIA).............................................   164
Prepared Statement of Edward Hasbrouck for the National Writers 
  Union (UAW Local 1981, AFL-CIO)................................   168
Prepared Statement of Marc Maurer, President, the National 
  Federation of the Blind........................................   173


              PRESERVATION AND REUSE OF COPYRIGHTED WORKS

                              ----------                              


                        WEDNESDAY, APRIL 2, 2014

                        House of Representatives

            Subcommittee on Courts, Intellectual Property, 
                            and the Internet

                       Committee on the Judiciary

                            Washington, DC.

    The Subcommittee met, pursuant to call, at 2:13 p.m., in 
Room 2141, Rayburn Office Building, the Honorable Howard Coble 
(Chairman of the Subcommittee) presiding.
    Present: Representatives Coble, Goodlatte, Marino, Smith of 
Texas, Chabot, Chaffetz, Holding, Collins, DeSantis, Smith of 
Missouri, Nadler, Chu, Deutch, Richmond, DelBene, and Lofgren.
    Staff present: (Majority) Joe Keeley, Chief Counsel; Tricia 
White, Clerk; (Minority) Stephanie Moore, Minority Counsel; 
Heather Sawyer, Counsel; and Jason Everett, Counsel.
    Mr. Coble. Good afternoon, ladies and gentlemen. Welcome to 
our hearing today on preservation and reuse.
    Several of the witnesses have thanked me for letting you be 
here. Thank you all for responding to our invitation to be with 
us today. We are delighted to have a very distinguished panel.
    American culture has been described as a key component of 
our Nation's exports, not just from a financial perspective but 
also as a demonstration of the creative ability of those who 
live in a democracy with constitutional guarantees.
    It should come as no surprise that as the Co-Chair of the 
Creative Rights Caucus, along with the gentlelady from 
California, Ms. Chu, I especially value the unique creations of 
American artists. The fact that some of these creations can be 
lost forever, due to an abandonment or outright deterioration, 
is a loss for our society. I welcome efforts to preserve our 
Nation's cultural history.
    As some of you may know, I am an ardent advocate of blue 
grass music. Despite my support, I recognize that blue grass 
may not be the most popular music available to Americans, and 
we can disagree agreeably about that. But blue grass is a part 
of the culture of my State, and I do not want that culture to 
be lost with time. So I am pleased to learn of efforts like 
those at the Library of Congress and elsewhere to preserve our 
Nation's culture for future generations.
    Clearly, there are those who have raised questions that 
some efforts claiming to focus on preservation may, in fact, be 
neglecting the rights of copyright owners who still exist and 
could potentially be located with minimal effort. I am sure we 
will hear about that later today.
    Several years ago, the Subcommittee spent a fair amount of 
time on the orphan works issue. While I do not wish to repeat 
that investment of time here this afternoon, I do want to hear 
more about the other issues of section 108, the role of 
libraries and museums, as well as mass digitization. That word 
throws me every time.
    In closing, we welcome our many eminently qualified 
panelists, as I have said before. Thank you for taking time 
from your respective business schedules to join us today. We 
look forward to hearing from you subsequently.
    And I am now pleased to recognize the distinguished 
gentleman from New York, the Ranking Member, Mr. Jerry Nadler, 
for an opening statement.
    Mr. Nadler. Thank you, Mr. Chairman.
    Today we examine whether existing law adequately allows for 
the preservation and reuse of copyrighted works with 
appropriate protections for content creators and other rights 
holders. This topic touches on a broad range of interrelated 
issues, including the existing exception contained in section 
108 of the Copyright Act that allows limited unauthorized 
reproduction of copyrighted works by libraries and archives, 
and how the existence of orphan works complicates preservation 
and reuse.
    Ensuring the preservation of creative works is 
unquestionably important. Our libraries, archives, and museums 
have always played a critical role in compiling and preserving 
this Nation's rich cultural and historical heritage, and we all 
want to ensure that they have the tools necessary to continue 
their important work.
    At the same time, and as our copyright law appropriately 
reflects, authors, artists, and other creators have the 
exclusive right to control and exploit their works. Our goal is 
to ensure that we strike the right balance.
    Recognizing the unique public service mission served by 
libraries and archives, Congress first enacted section 108 in 
1976, allowing these entities a limited exception for 
preservation, replacement, and research purposes long before 
technological innovations made it possible to make digital 
copies of analog works on a mass scale, a process otherwise 
known as mass digitization. And while orphan works legislation 
has previously been considered by Congress, these proposals 
like the relatively minor adjustments made to section 108 
through the Digital Millennium Copyright Act of 1998 did not 
directly grapple with mass digitization.
    This hearing, thus, allows us to revisit preservation and 
reuse issues in light of the considerable technological changes 
that have taken place in the last few years.
    As a starting point for this discussion, I am interested in 
hearing from our witnesses regarding what parts of the 
recommendations issued by the Copyright Office Section 108 
Study Group remain relevant today and whether further studies 
or adjustments might be warranted.
    I am similarly interested in hearing whether the existence 
of orphan works, commonly understood to be copyrighted works 
whose owners cannot be identified or located making it 
impossible to negotiate terms for their use, remains a problem 
and, if so, how we should address it.
    Recent litigation over mass digitization seems to confirm 
the need for a solution. Those cases involve a public-private 
partnership between Google and HathiTrust to digitize the 
library collections of several universities. In the case 
brought by the Authors Guild against Google, the District Court 
Judge recognized that orphan works remain ``a matter more 
suited for Congress than this court.'' As the judge explained, 
``the questions of who should be entrusted with guardianship 
over orphan books, under what terms, and with what safeguards 
are matters more appropriately decided by Congress than through 
an agreement among private self-interested parties.''
    Ongoing uncertainty regarding how to deal with orphan works 
also played a part in a related case brought by the Authors 
Guild against HathiTrust where the inability of several 
universities to create a procedure that accurately identified 
orphan works resulted in suspension of efforts to digitize 
these works. This would seem to confirm that orphan works 
continue to be a problem in need of a solution, and I look 
forward to hearing from our witnesses on what we should do.
    To the extent that some of you may feel that congressional 
action is not needed, what are other workable options, 
particularly in response to judicial requests for congressional 
action?
    Mass digitization may pose a similar dilemma. Some 
stakeholders may take the view that no action is needed, while 
others may firmly believe that this issue should be addressed. 
There are unquestionable benefits to be gained from mass 
digitization in certain circumstances. For example, 
digitization allows print-disabled individuals unprecedented 
access to books that enables them to compete on equal footing 
with their sighted peers. It may also enhance the ability to 
collect and preserve fragile or out-of-production works. At the 
same time, bulk digitization involves millions of copyrighted 
works, some of which are orphan works, and raises complex 
questions about protections for creators of these works and 
other rights holders.
    Congress has afforded libraries and archives special 
privileges in the Copyright Act in recognition of the unique 
and critical role they play in capturing and preserving the 
Nation's rich history. Rules sought and potentially created by 
and for these institutions may be appropriate for other users 
for uses of copyrighted works. Mass digitization also presents 
new and different opportunities and risks related to online 
access to copyrighted works that raise critical and complicated 
questions that are not presented by analog copies.
    These are just a few of the many issues that we will begin 
grappling with today. As we do so, we should take note of the 
Copyright Office's ongoing review of orphan works and mass 
digitization. That process, which started with a Notice of 
Inquiry in 2012 and included 2 days of public roundtables just 
last month, will provide useful guidance. I look forward to 
reviewing the Copyright Office's recommendations.
    In the meantime, our witnesses provide a diversity of 
perspectives and a wide range of experience, and I look forward 
to hearing from them today.
    With that, I thank the Chairman again, and I yield back the 
balance of my time.
    Mr. Coble. I thank the gentleman.
    Without objection, opening statements of other Members will 
be entered into the record.
    I will ask the witnesses, if you will, to please rise and 
raise your right hand. We traditionally swear in our witnesses.
    [Witnesses sworn.]
    Mr. Coble. Thank you. You may be seated.
    Let the record show that each of the witnesses responded in 
the affirmative.
    Ms. Chu, you want to introduce the last witness. Right?
    Ms. Chu. Yes.
    Mr. Coble. All right.
    For the third time, I want to say how distinguished the 
panel before us is, and we appreciate your being here.
    You will see two clocks on your table. The green light--you 
may go full ahead. When the light turns amber, that is your 
warning that you are running out of time and you will have 1 
minute at that point. If you can wrap up on or about 5 minutes, 
that would be appreciated. You will not be severely punished if 
you fail to do that, but we try to keep within the 5-minute 
range up at this table as well.
    Our first witness today is Mr. Gregory Lukow, Chief of the 
Audio Visual Conservation Center at the Library of Congress, 
located at the Packard Campus in Culpepper, Virginia. Mr. Lukow 
has been with the Library of Congress for over a dozen years, 
overseeing the development of the Packard Campus and its 
preservation programs. Mr. Lukow received his degree in 
Broadcast Journalism and English from the University of 
Nebraska and his M.A. in Film and Television Study from UCLA. 
And I am sure, Mr. Lukow, you are an ardent Husker fan, I 
suspect. There was no great risk, I assumed, in saying that.
    Our second witness is Mr. Richard Rudick, Co-Chair of the 
Section 108 Study Group. Mr. Rudick retired from John Wiley and 
Sons, where he served for 26 years, including as senior Vice 
President and General Counsel. Mr. Rudick received his J.D. 
from the Yale School of Law and is a graduate of Middlebury 
College. Mr. Rudick, good to have you with us.
    Our third witness is Mr. James Neal, Vice President for 
Information Services and University Librarian at Columbia 
University. Mr. Neal oversees 22 libraries at Columbia and has 
participated in a wide range of professional roles in the 
library community, including the Section 108 Study Group. Mr. 
Neal received his B.A. in Russian Studies at Rutgers and his 
two masters degrees in History and Library Science from 
Columbia.
    Our fourth witness is Ms. Jan Constantine, General Counsel 
of the Authors Guild since 2005. Ms. Constantine is responsible 
for representing the interests of the Authors Guild in all 
legal matters. Ms. Constantine received a B.A. from Smith 
College and is a graduate of George Washington University's 
National Law Center.
    Our fifth witness is Mr. Michael Donaldson, partner at 
Donaldson & Callif, LLP. Mr. Donaldson is the former President 
and board member of the International Documentary Association 
where he was an advocate for the interests of documentarians. 
Mr. Donaldson earned his Bachelor of Science degree from the 
University of Florida and his J.D. from the University of 
California at Berkeley.
    I am now pleased to recognize the distinguished lady from 
California who has asked permission to introduce our sixth and 
final witness.
    Ms. Chu. Thank you, Mr. Chairman.
    I have the pleasure of introducing Professor Jeffrey 
Sedlik, who is the President and CEO of PLUS Coalition, a 
nonprofit that seeks to connect images to rights holders and 
rights information. He is also an educator at the Art Center 
College of Design in Pasadena, California, and the City of 
Pasadena is in my district. In addition, I am delighted to say 
that Professor Sedlik is my constituent. Thank you, Professor 
Sedlik, for testifying today and representing the voices of 
independent visual artists.
    Mr. Coble. I thank the gentlelady.
    Mr. Nadler. Mr. Chairman?
    Mr. Coble. Yes, sir.
    Mr. Nadler. Could I simply give a special welcome to Mr. 
Neal since he represents Columbia, and I am a proud alumnus of 
Columbia, as is my son, and since the last reapportionment, it 
is now in my district, so I want to give a special welcome.
    Mr. Coble. This has no relevance to today's hearing, but I 
will be very brief in sharing it with you.
    I was invited to address a group at the Columbia School of 
Law some recent years ago, and I had to decline, first, because 
there were scheduled votes on the House Floor that night. That 
was altered and then the House votes were in fact--I declined 
the invitation because we thought there were going to be House 
votes. There were House votes. I declined. And the lady said to 
me, ``Well, we have already printed the invitations and your 
name is on the invitation.'' I said, ``I will miss the vote and 
I will be at Columbia,'' which I did.
    The next day when I returned to the House Floor, I went to 
the Speaker who was in the chair, and I said, ``May I explain 
how I would have voted had I been here last evening?'' He says, 
``Why were you not here?'' And, in a condescending tone, I 
said, ``I was delivering a lecture at the Columbia School of 
Law.'' [Laughter.]
    He said, ``Have they lost their minds?'' [Laughter.]
    So with that, Mr. Lukow, why do you not kick us off?
    Mr. Lukow has requested that we show a little over 2 
minutes, I think 2 minutes and 15 seconds, of video which I 
think is in order, and we will do that now.
    [Video shown.]
    Mr. Coble. Mr. Lukow, I would like to some day visit the 
Culpepper Campus, but we can talk to you about that 
subsequently. But thank you for making this available to us.
    Prior to hearing from our witnesses, I have noticed that 
the Chairman of the Judiciary Committee has arrived, and I am 
pleased to recognize the distinguished gentleman from Virginia, 
Mr. Goodlatte, for his opening statement.
    Chairman Goodlatte. Well, thank you very much, Mr. 
Chairman, for holding this hearing and for your forbearance.
    This afternoon, the Subcommittee will hear about the 
preservation and reuse of copyrighted works. This issue is 
becoming a more urgent issue for American culture as 
copyrighted works deteriorate with age. Last spring, I visited 
the Packard Campus of the Library of Congress in Culpepper, 
Virginia and witnessed firsthand not only the depth of our 
Nation's great cultural history, but also the preservation 
challenges caused by the passage of time. I encourage all the 
Members of the Committee--it is not that great a distance out 
to Culpepper, and it is a fascinating experience. So, I commend 
it to you, and hope Members will get out there, along with the 
Chairman.
    The head of this facility is testifying this afternoon, and 
he has brought with him some examples of the deterioration 
caused by age and poor storage conditions.
    In the 1976 Copyright Act, Congress included several 
provisions in section 108 to address preservation and reuse 
issues. However, like many of the 1976 provisions, section 108 
is woefully outdated for the digital age.
    In 2005, the Library of Congress and the Copyright Office 
convened a group of experts to make recommendations on updating 
section 108. Two of the participants in the Section 108 Study 
Group are testifying today. As they will no doubt highlight, 
agreement was reached on some, but not all, potential updates.
    Recently some have suggested that instead of updating 
section 108 for the digital age, preservation activities should 
be covered by the fair use provisions of section 107. While it 
is probably true that there are clear-cut cases in which fair 
use would apply to preservation activities, fair use is not 
always easy to determine, even to those with large legal 
budgets. Those with smaller legal budgets or a simple desire to 
focus their limited resources on preservation may prefer to 
have better statutory guidance than exists today.
    Another issue we will look at today is how to best allow 
access to works that may have been abandoned. In 2006 and 2008, 
this Committee considered orphan works legislation, and the 
Senate passed similar legislation in 2008 by a voice vote. In a 
sign of how quickly technology and business models advance, 
since then a coalition of photographers, visual artists, and 
potential orphan works users have worked together to develop a 
technology platform to better enable the connection of 
copyright owners of potential orphan works with those 
interested in using them.
    In addition, none of the earlier legislation addressed the 
mass digitization issue. At a minimum, Congress needs to ensure 
that any legislative activity in this area can accommodate such 
rapid progress.
    So I look forward to hearing more about these and other 
preservation and reuse issues from our witnesses. I welcome all 
of you today. And I yield back to the Chairman.
    Mr. Coble. I thank the Chairman.
    Mr. Lukow, we will start with you. Again, if you all can 
keep a sharp lookout on the clocks, we will be appreciative. 
You are recognized, sir.

  TESTIMONY OF GREGORY LUKOW, CHIEF, PACKARD CAMPUS FOR AUDIO 
            VISUAL CONSERVATION, LIBRARY OF CONGRESS

    Mr. Lukow. Thank you. Thank you, Chairman Goodlatte, 
Chairman Coble, Ranking Member Nadler, and the Members of the 
Subcommittee. I appreciate very much the opportunity to 
participate in today's hearing on preservation and reuse of 
copyrighted works.
    As Chief of the Library of Congress Packard Campus for 
Audio Visual Conservation, this statement will necessarily 
focus on challenges facing the Library's audiovisual 
collections, and those samples that both Chairman Goodlatte and 
Chairman Coble mentioned of deteriorating media are sitting up 
there. I think you will appreciate the fact that they are up 
there because if we handed them around, they would probably 
fall apart in your hands.
    However, the issues raised by this timely hearing, 
including orphan works, section 108, and mass digitization, 
profoundly impact the Library's ongoing attempts to acquire, 
preserve, and make available the American cultural record 
contained in the 158 million items in all their varied formats 
and collections at the Library.
    Though we have made great progress in preserving 
substantial parts of our collections, thanks to the support of 
the U.S. Congress and the American public, we face numerous 
formidable impediments in making this content available for 
research and scholarship. Copyright law restricts libraries' 
abilities both to preserve collections, especially sound 
recordings and audiovisual works, and to provide access to 
preserved works.
    We face a cruel irony. The promising advent of digital 
technologies has enabled us to preserve vastly more of this 
heritage for the long-term future, but the promise is often not 
fully realized because the public cannot access much of this 
content beyond the controlled environment of our Washington, 
D.C. reference centers. Much of the vast film, television, 
radio, and broadcasting and recorded sound materials in our 
collections have been out of print for decades and are, in 
effect, orphaned works in that the companies that own rights to 
these materials do not currently make them available to the 
public from lack of commercial incentive to do so, absent of 
business models, or other reasons.
    Our statement focuses not only on orphan works, whose 
status results from ownership questions, but also on what we 
call these ``marketplace orphans.'' Although such marketplace 
orphans have little or no commercial value to their rights 
holders, many are of great historic, cultural, or aesthetic 
value to scholars, educators, and the general public. Examples 
include films from the silent era and thousands of educational, 
independent, avant-garde, and amateur motion pictures, early 
television and radio broadcasts, especially local productions, 
and sound recordings of all types, including ethnic recordings, 
monaural classical music, operatic recordings, poetry, and 
other spoken word recordings.
    The Library recommends three priorities for statutory 
change.
    First, modernize section 108 so the libraries and archives 
can fulfill their mission to preserve audiovisual and other 
materials. Several parts of section 108 do not apply to 
audiovisual materials. As a result, these items do not enjoy 
the certain valuable preservation and access exceptions 
expressly granted to other works. Section 108 needs to be 
updated for the digital age with language applicable to all 
formats.
    In addition, subsection 108(c), which was designed to help 
libraries and archives preserve their materials, in reality 
only allows these institutions to preserve materials already 
damaged or in a state of deterioration. In order to preserve 
fragile, at-risk audiovisual materials, the Library must be 
able to legally make copies of materials before they are 
damaged or deteriorating.
    Our second recommendation: expressly address the orphan 
works issue in copyright law. Our inability thus far to solve 
this issue is a key factor leading to the unavailability of 
countless parts of our moving image and recorded sound 
heritage. We need a common-sense, compromise legislative 
solution to this vexing problem.
    And third, and by no means least, federalize pre-1972 sound 
recordings. Given the historical development of U.S. copyright 
law, these works have never been brought under Federal 
copyright protection. This anomaly creates many vexing 
preservation, access, and rights issues as the works are 
covered by common law or a myriad of disparate State laws. Pre-
1972 sound recordings must be brought under the Federal 
copyright regime, a recommendation that was voiced in the U.S. 
Copyright Office's 2011 report on this topic.
    With that, I will conclude my remarks. I will refer you to 
my written testimony for a number of examples of these kinds of 
categories of orphan works or marketplace orphans.
    And you all, indeed, have a standing invitation to visit 
the Packard Campus. I hope you will do so. Thank you very much.
    [The prepared statement of Mr. Lukow follows:]
    

    
                                   __________
    Mr. Coble. Thank you, Mr. Lukow.
    Mr. Rudick?

           TESTIMONY OF RICHARD S. RUDICK, CO-CHAIR, 
                    SECTION 108 STUDY GROUP

    Mr. Rudick. Distinguished Chairman Coble and Goodlatte, 
Ranking Member Nadler, and Members, thank you for this 
invitation.
    As you know already, I address you as Co-Chair of the 
Section 108 Study Group convened by the Library of Congress to 
recommend changes in that section of the 1976 act which was 
enacted when the photocopy machine was the hot, new technology 
that challenged copyright. Half of our members came from the 
library, archives, and museum community, and half from the 
content and creative community.
    These two communities are part of a larger community, held 
by common bonds, driven in part by common goals, and bedeviled 
by similar challenges. In the end, we both serve the public 
interest by making accessible art, literature, and science. We 
both face serious economic challenges, and we have both had to 
redeploy our assets and revise our operations to deal with the 
opportunities and challenges presented by new digital 
technologies.
    We are interdependent. Libraries are important customers of 
content providers, and without the work of authors, artists, 
publishers, and other media producers fueled by copyright, 
libraries could no longer exist. This is a family quarrel.
    In spite of these tensions by distinguishing between what 
we needed and what we wanted and motivated by a deep-shared 
common concern for the need for addressing digital preservation 
issues, we were able to agree on a number of recommendations, 
including the following: adding museums as eligible 
institutions, allowing qualified institutions to copy digital 
material for preservation whenever there is risk of loss or 
disintegration without waiting for after it occurred, allowing 
libraries and archives to preserve, reproduce, and make 
available publicly available online content not restricted by 
access controls such as websites.
    With respect to mass digitization, after some discussion in 
2005, we felt the time was not ripe. It is very ripe now in the 
wake of HathiTrust and Google. I think we need legislation and 
need to promote voluntary programs, including collective 
licensing which could facilitate such projects both in the not-
for-profit and for-profit sectors.
    The study group considered or discussed whether commercial 
availability should be a factor for purposes of section 108, in 
effect, providing different rules for works offered in commerce 
and those either not intended for commercial use or no longer 
available commercially. Since then, this concept has been 
utilized or is being considered as a factor for various 
purposes, for example, in the Google Books settlement, which 
was rejected by the District Court in New York and in the 
European Union. Whether in the revision of section 108 or in 
possible legislation relating to mass digitization, I think we 
should consider this concept carefully.
    Libraries have come to rely heavily on fair use under 
section 107, in part because of the inadequacies of 108 in the 
digital era. But reliance on section 107 for purposes that go 
far beyond those originally conceived or imagined invites, as 
we have seen, expensive litigation with uncertain results. A 
provision so dependent on balancing and analyzing individual 
facts and circumstances in specific situations is not well 
suited to the major projects typical of mass digitization, and 
the doctrine of fair use does not begin to address many of 
content owners' serious concerns such as security.
    From a practical standpoint, as the study group pointed 
out, an updated and balanced section 108 dealing with digital 
issues would complement the flexibility of section 107 by 
providing straightforward guidance, predictability, and clarity 
in specific situations for working librarians and others.
    Clarity is the handmaiden of certainty, and an important 
function of the law is to provide rules which, if followed, 
keep us out of trouble. Oliver Wendell Holmes, Jr. once 
observed that, ``Certainty generally is illusion and repose is 
not the destiny of man.'' Surely repose is not our destiny, and 
it may be that absolute certainty is generally an illusion. But 
a level of certainty is a prerequisite for doing business, 
whether your business is that of a librarian, a teacher, or a 
student, or that of a publisher, a writer, or an artist.
    I appreciate the opportunity to speak to you on these 
issues. I hope that legislation which facilitates the 
preservation and reuse of copyrighted works will be enacted.
    And if I have a few more minutes, I have read my good 
friend Jim Neal's testimony, and I agree with much of what he 
said. But he answers a question which I have been asking, which 
is, ``Why do the library associations and the major libraries 
not support an updated, all-dancing, and all-singing 108 to 
deal with the digital world?'' And I think I see the answer, 
which is there have been a number of lower court decisions that 
support a very expansive view of fair use. I think that horse 
is running well for them. But that is not how we should make 
policy. That is Congress' job. And what we should do is 
whatever we can to make life easier and better for working 
librarians, consistent with the need to enable people who 
scribble for a living to survive and thrive, and also 
university presses and other publishers. In the end, we have to 
do what is right for the American people, and the hell with 
what horse is ahead right now.

    [The prepared statement of Mr. Rudick follows:]

    
    
        
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    Mr. Coble. Thank you, Mr. Rudick.
    Mr. Neal?

  TESTIMONY OF JAMES G. NEAL, VICE PRESIDENT FOR INFORMATION 
     SERVICES AND UNIVERSITY LIBRARIAN, COLUMBIA UNIVERSITY

    Mr. Neal. Chairman Coble, Ranking Member Nadler, Members of 
the Subcommittee, thank you for this opportunity to testify 
today. I am a working librarian.
    I ask that my full statement be included in the record. It 
has been endorsed by U.S. library associations.
    I will address four issues: first, the importance of 
library preservation; second, how the library exceptions in 
section 108 of the Copyright Act supplement and do not supplant 
the fair use right for important library activities such as 
preservation; third, how changes in the legal landscape have 
diminished our need for legislation concerning orphan works; 
and finally, my perspective on the HathiTrust case.
    My overarching point is that the existing statutory 
framework, which combines the specific library exceptions in 
section 108 with the flexible fair use right, works well for 
libraries and does not require amendment.
    Before diving into copyright law, I would like to make 
clear to the Subcommittee that libraries are not seeking a free 
ride. U.S. libraries spend over $4 billion a year acquiring 
books, films, sound recordings, and a variety of other 
materials. Our objective is to maximize the benefit the 
American people receive from this enormous investment that they 
have made. We want to make sure that this material is 
accessible to current and future generations of users. 
Libraries think in terms of centuries, not quarterly royalty 
reports.
    First, the importance of preservation. Libraries engage in 
preservation activities to prevent the loss of vital cultural, 
historical, and scholarly resources. Much of this material 
lacks commercial value and publishers may not have the 
interest, the financial incentive, or the technical expertise 
to engage in preservation activities.
    At Columbia, there are vast collections that demand 
preservation which may include shifting formats as technologies 
become obsolete.
    For example, the 9/11 oral history project focuses on the 
aftermath of the destruction of the World Trade Center. This 
project captured 900 hours of interviews recorded on digital 
media.
    Another example is our human rights archive that documents 
the condition and progress of human rights around the world. 
Columbia is making complete copies on an ongoing basis of more 
than 600 websites from around the world. The archive contains 
60 million pages, including many short-lived websites from 
countries in conflict or with repressive governments.
    In short, digital resources are not immortal. They are in 
formats that are more likely to cease to exist and must be 
transferred to new digital formats repeatedly as technology 
evolves. This means that libraries require robust applications 
of flexible application exceptions, such as fair use, so that 
copyright technicalities do not interfere with our preservation 
mission.
    Second, section 108 and fair use. Section 108 has proven 
essential to the library preservation function. The fact that 
section 108 may reflect a pre-digital environment in our view 
does not make it obsolete. It provides libraries and archives 
with important certainty with respect to the activities it 
covers. Like Dick Rudick, I was a member of that study group. 
The report did not resolve many important issues such as orphan 
works or mass digitization, nor did it propose statutory 
language in areas where there was some agreement.
    In addition to section 108, libraries rely upon fair use to 
perform a wide range of other completely noncontroversial 
practices. Libraries make preservation copies of musical works 
and motion pictures, categories not covered by 108. School 
libraries make multiple copies of appropriate portions of work 
for classroom use, not covered under section 108. As Congress 
made clear with the savings clause in section 108, it does not 
limit the right of fair use.
    Third, orphan works. The significant diversity of opinions 
expressed to the Copyright Office in a Notice of Inquiry in 
2013 and the recent roundtables indicate that it will be 
extremely difficult to forge a consensus on best approaches to 
resolve orphan works issues. Fortunately, fair use allows 
libraries to appropriately preserve orphan works and make them 
available appropriately to researchers and the public.
    Fourth, the HathiTrust litigation. HathiTrust is a 
consortium of libraries that preserves digitized works. There 
are several uses of the Hathi database: preservation, searches 
to identify where words or phrases appear, and full-text access 
only for the print-disabled. I want to emphasize that only the 
print-disabled have access to the full text of copyrighted 
works in the HathiTrust repository. The central legal issue was 
whether the copies made by Hathi were a fair use.
    Finally, legislative recommendations. Updating section 108 
in my view is not necessary, as is an orphan works amendment, 
at least for the work of libraries. Other amendments may be 
appropriate with respect to statutory damages, the coverage of 
museums, contractual restrictions on copyright exceptions, 
which is a fundamental issue for libraries, and broader 
exceptions for people with disabilities.
    Thank you, Mr. Chairman.
    [The prepared statement of Mr. Neal follows:]
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
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    Mr. Coble. Thank you, Mr. Neal.
    Ms. Constantine?

        TESTIMONY OF JAN CONSTANTINE, GENERAL COUNSEL, 
                    THE AUTHORS GUILD, INC.

    Ms. Constantine. Thank you, Chairman Coble, Ranking Member 
Nadler--I would like equal time. I too am a constituent. So 
thank you for all you do in New York--and Members of the 
Subcommittee.
    My name is Jan Constantine, and I am General Counsel for 
the Authors Guild, the largest society of published authors in 
the country. We have a 100-year history of contributing to 
debates before Congress on the proper scope and function of 
copyright law. It is an honor and a privilege to be here today 
for the Authors Guild to continue to serve that role before 
this Committee.
    Mass digitization and orphan works are two issues that I 
personally have spent the last 8 years grappling with. We have 
two active, major lawsuits addressing these very topics, one 
against Google and one against the HathiTrust, a consortium of 
university libraries. In these two lawsuits, we are striving to 
protect authors' rights to their works against institutions 
vastly larger and more powerful than ourselves.
    Google's chutzpah in offering libraries free e-books of 
other people's property in exchange for access is truly 
awesome. And once HathiTrust had possession of these e-book 
editions of many of the world's copyrighted literary works, it 
was awfully tempting to do something with them. So, HathiTrust 
sidestepped Congress and started its own orphan works project.
    This is not how it is supposed to be. Copyright is part of 
our Constitution. It is vitally important to our culture. 
Congress has carefully crafted rules for copying, including 
detailed rules for library copying. Ad hoc approaches to things 
as momentous as mass digitization of books or the distributing 
of so-called orphan books is wildly inappropriate. To me, these 
look more like exercises in eminent domain, Google or 
HathiTrust versions of eminent domain. But at least with real 
eminent domain, the property owner gets paid something.
    We do not like suing libraries. We do not even like suing 
Google--or maybe a little. [Laughter.]
    But we have better things to do and these issues are not 
best decided in the courtroom. These are major public policy 
issues and Congress, particularly this Committee, should be 
setting the rules.
    One thing I have learned during these 8 years is that the 
orphan works problem is vastly overstated, at least for books. 
A book has all of its property owner information printed right 
in it. The Copyright Office has all sorts of ownership 
information through its registration system.
    And HathiTrust's orphan works program quickly showed that 
finding rights owners to so-called orphans can be a snap. 
HathiTrust had an elaborate protocol for finding rights owners. 
It did not work. But, we tried a different approach. We used 
Google which, in spite of the chutzpah, is really quite handy, 
and we were finding rights owners up, down, and sideways in 
moments. People usually do not die without a trace, at least 
authors of registered copyrights do not regularly die without 
leaving some clue as to their heirs.
    Take James Gould Cozzens, the Pulitzer Prize winning 
novelist. He was on HathiTrust ``orphan row.'' That is what we 
called their list of orphan books that it was getting ready to 
distribute to 250,000 or so people. Free e-books, someone 
else's property. And who was that someone else? Harvard 
University. The Copyright Office says that Harvard was the 
owner.
    But I am not here to rehash the past. Let us talk 
solutions.
    We need a way forward that respects all stakeholders, 
authors, publishers, libraries, and especially readers. So, we 
are asking Congress to allow for the creation of a collective 
rights licensing organization to deal with mass digitization 
and orphan works. Collective licensing organizations such as 
ASCAP and BMI make sense when there is a limited set of rights 
to be licensed and it is too costly to ask individuals whether 
a use is okay. If you run a radio station and want to broadcast 
some music, it is impractical to contact every rights holder 
for each day's playlist. So you get licenses from ASCAP and 
BMI.
    For mass digitization of books, one also needs a simple, 
one-stop shopping solution. The benefits would be enormous and 
pave the way for a true national digital library. This has to 
be done carefully, however. The licensing would have to be 
strictly limited in scope. Distributing print books or e-books 
would not be part of the package. In-print books would not be 
part of the package either. We should not be disrupting the 
commercial market.
    Instead, this is about displaying out-of-print books, and 
there are millions of them in our Nation's libraries. We are 
talking displaying, not downloading or distributing, displaying 
books on computer screens. This is about providing access to 
those books at every college, university, community college, 
public school, and public library in the country so those 
institutions could provide access to the vital communities they 
serve. Every student could have a desktop access to a 
collection as large as their State's university. It is a 
``level the playing field'' game-changer, and authors would be 
compensated for those uses, as they should, rather than being 
brushed aside by those who should know better.
    There are other important things that would go with 
collective licensing. It would have to be non-compulsory. If an 
author wants out, the author gets out. It is the author's 
literary property after all. The author gets to say ``no.'' And 
there would also have to be a referee, someone to go to if the 
licensing organization and an institution cannot agree on a 
reasonable fee. That is a feature of collective licensing 
organizations around the world.
    Outside of the U.S., collective licensing solutions for 
books in particular have been met with great success.
    In closing, I look forward to sitting down at the table 
with other stakeholders, libraries, users, creators, and other 
media, even Google. What the heck. This can be worked out. The 
benefits are just too enormous to pass up. This is about 
bringing our great research libraries to the desktops and 
laptops of students and library patrons across the country. A 
true digital library is within our grasp. We should go for it 
now. And I think once we agree on the shape of the table, I am 
sure we can get it done.
    I would like to thank this Committee for holding this 
hearing and inviting us to participate, and I refer you to my 
written testimony. Thank you very much.
    [The prepared statement of Ms. Constantine follows:]
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
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    Mr. Coble. Thank you, Ms. Constantine.
    Mr. Donaldson, I recognize Mr. Lukow's football Huskers. I 
failed to mention your basketball Gaitors. For that, I want to 
make sure that I apologize. I now recognize you.

           TESTIMONY OF MICHAEL C. DONALDSON, ESQ., 
                PARTNER, DONALDSON & CALLIF, LLP

    Mr. Donaldson. My name is Michael Donaldson, representing 
documentary filmmakers and independent filmmakers really across 
the country.
    I know this is not the sexiest thing on your agenda, so I 
want to also thank you for just showing up today because this 
is an incredibly important issue, particularly to documentary 
filmmakers. Our office worked on over 170 documentaries in the 
last 12 months. Only half a dozen of them escaped without 
facing the frustration of orphan works, something that can 
genuinely not be found after a very serious effort.
    Take, for instance, William Saunders who is making a 
documentary about his 89-year-old grandfather, a seminal 
songwriter in the country-western field in the 1960's with 
recordings by Dean Martin and Tommy Lee Jones and Johnny Cash. 
His songs were sold to publishers. Those publishers are now out 
of business. His grandson, with tremendous motive and 
tremendous effort, has not been able to find who the rights 
holders are on his grandfather's own songs. So his documentary, 
which should have richly embraced his grandfather's music, is 
having to rely on fair use, which means he can use bits and 
pieces but not what he would like to use to make this 
documentary about his grandfather be all it could be.
    It is also an even bigger problem for feature filmmakers 
who do not have a fair use workaround. The UCLA film and 
television archive, which is second only to the Library of 
Congress in its size, has some 200,000 titles in its archive of 
feature films. Of those, over 10,000 are orphans. With all the 
facilities of UCLA, they were not able to find the authors, 
that is, the copyright owners, of these 10,000 films. So they 
are only available for research, which means that these 
wonderful stories that somebody thought was worth saving, 
collectors and archivists, are not available for the retelling 
or for making sequels. These are 10,000 untold stories, and if 
you match them up with what is in the Library of Congress, you 
easily get into six figures, and maybe seven, but I defer to 
the Librarian for that.
    It also affects television. A wonderful series a few years 
back called Fallen Angels--every episode was based on the 
writings of one of those wonderful film noire writers like 
Dashiell Hammett or Raymond Chandler or Mickey Spillane, but 
also on some lesser known writers. And the producer of that 
television series found many, many stories in pulp magazines 
and old books that they wanted to make into a television 
episode. They could not because there is no fair use 
workaround, and if you do not have the underlying rights to 
those books and articles, you cannot make a derivative work 
from them.
    So what is the solution? The path out of this very 
frustrating forest of problems for independent filmmakers and 
documentarians is a substantial search, and I by that mean a 
genuine substantial search which obviously would include a 
Google search and a lot of other things. If they make a 
substantial search and the owner comes up later, they should 
get an immediate payment of a reasonable license fee. If the 
search was not substantial, if they did not use Google or some 
of the other tools available like PLUS, which is emerging, then 
the copyright owner has the full panoply of ability to go after 
statutory damages, an injunction, the whole panoply of remedies 
that is available currently.
    We are opposed for films to have any kind of a collective 
bargaining because what happens is what happened in Canada. I 
mean, they have collected what, $70,000 in 12 years and nobody 
showed up to collect it? So you have this money sort of sitting 
there without any real benefit to anybody except the 
bureaucracy that set it up.
    We are immensely hopeful that this Committee moves forward 
with a legislative solution for the orphan works problem.
    Thank you again.
    [The prepared statement of Mr. Donaldson follows:]
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
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    Mr. Coble. Thank you, Mr. Donaldson.
    Mr. Sedlik?

  TESTIMONY OF JEFFREY SEDLIK, PROFESSOR, PRESIDENT AND CHIEF 
               EXECUTIVE OFFICER, PLUS COALITION

    Mr. Sedlik. Chairman Goodlatte, Chairman Coble, Ranking 
Member Nadler, Members of the Subcommittee, thank you for the 
opportunity to testify today on the preservation and reuse of 
copyrighted works.
    Chairman Goodlatte, thank you for referring to PLUS and 
praising our efforts in your opening statements.
    And, Congresswoman Chu, thank you very much for the 
personal introduction.
    In addition to my role as President and CEO of the 
nonprofit PLUS Coalition, I am a professional photographer with 
30 years of experience. I am also an educator, having served 
for 20 years as a professor at the Art Center College of Design 
in Pasadena, California.
    While much of the public discussion and debate on copyright 
issues focuses on big business, we must not forget that 
copyright is the engine of free expression for independent 
visual creators and other authors and that licensing the use 
and reuse of their copyrights, as provided under title 17, is 
typically the only means by which such creators are able to 
support themselves and their families and to afford to create 
new works for the ultimate benefit of the public.
    Despite the significant ongoing efforts of visual artists 
to protect their works by appending identifying information to 
each new work prior to distribution, this information is often 
lost or removed upon distribution of the works. With 
instantaneous worldwide distribution of images occurring upon 
first publication, millions of newly orphaned images are 
injected into the global ecosystem on a daily basis. As a 
result, publishers, museums, libraries, researchers, 
documentary filmmakers, and the public dedicate considerable 
time and resources to attempts to identify and contact rights 
holders in order to seek permission to make use of visual 
works, often in significant quantities.
    With demand for visual content increasing exponentially, 
many organizations now face the daunting challenge of managing 
millions of visual works. At that scale, the management of 
image rights seems an impossible challenge, but solving this 
challenge is entirely possible. In the not too distant past, 
there were no bar codes on any product in any store. There were 
no ISBN's in any book on any shelf. These and other 
standardized, persistent identification systems are now 
ubiquitous, providing instantaneous global access to that vital 
information and successfully serving as the backbone for 
commerce and other activities.
    The lack of a similar identification system for visual 
works is at the root of many of the most significant challenges 
faced by image creators, publishers, the public, and the 
cultural heritage community. By employing persistent 
identifiers, in combination with image recognition 
technologies, in a system of interconnected registries, we can 
provide instantaneous automated global access to image rights 
information.
    At the suggestion of the Copyright Office, the PLUS 
Coalition was founded in 2004 as a multi-stakeholder initiative 
charged with addressing this challenge. A nonpartisan, 
industry-neutral, nonprofit organization, PLUS is operated by 
and for all communities engaged in creating, distributing, 
using, and preserving images. Members of the coalition include 
publishers, museums, libraries, educational institutions, 
advertising agencies, design firms, photographers, 
illustrators, stock photo libraries, standards bodies, and 
other interested parties spanning 117 countries. This diverse 
spectrum of stakeholder communities has established common 
ground by jointly founding and operating the PLUS Coalition as 
a vehicle for intense collaboration on a tightly focused 
mission to connect images to rights holders and rights 
information on a global scale.
    This Committee has consistently reminded and encouraged 
stakeholder communities to cooperate in addressing and 
resolving the ever-present challenges at the nexus of copyright 
and technology. I am glad to report to the Committee that the 
PLUS Coalition, after 10 years of success, is a real-world 
example of the remarkable progress that can be achieved by 
stakeholder cooperation.
    Toward that success, the PLUS Coalition first established a 
system of standards facilitating the identification of rights 
holders and the communication and management of image copyright 
information. Essentially, the PLUS standards provide the 
equivalent of a UPC or bar code system for visual works.
    With the global rights language in place, we are now 
developing the PLUS Registry at PLUSregistry.org as a 
nonprofit, international hub for image rights information, 
connecting all registries in all countries. Using the PLUS 
Registry, anyone in any country will be able to instantly 
identify the creator, rights holder, and descriptive 
information associated with any registered visual work, even in 
the event that the work was distributed many years ago and 
bears no identifying information.
    Museums and libraries and archives will use the PLUS 
Registry to facilitate preservation and to maximize public 
access. Creators and other image rights holders will use the 
PLUS Registry to ensure that they can be easily found and 
contacted by anyone seeking information about their visual 
works. Publishers and other businesses will use the PLUS 
Registry to identify and contact image rights holders and to 
manage image rights associated with vast quantities of works. 
Search engines will use the PLUS Registry to automate rights 
management and to allow individuals and businesses to make 
informed decisions about using visual works.
    Persistent attribution is not only the key to ensuring the 
survival of independent visual artists, but is vital to the 
success of all rights holders and distributors engaged in 
licensing the use and reuse of visual works. Importantly, 
persistent attribution, in combination with fair use and other 
exceptions, is also the key to ensuring that museums, 
libraries, and archives are best able to preserve visual works 
and to maximize public access to our cultural heritage.
    Thank you for your time and consideration. I look forward 
to taking your questions.
    [The prepared statement of Mr. Sedlik follows:]
    
    
    
    
    
    
    
    
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    Mr. Coble. Thank you, Mr. Sedlik. Thanks to each of you.
    We try to apply the 5-minute rule to ourselves. So if you 
could make your responses as terse or as brief, at the same 
time responding to the question, we would appreciate that.
    Mr. Lukow, what are the most important changes that need to 
be made to update section 108 for purposes of preservation and 
reuse of copyrighted works?
    Mr. Lukow. Well, we would certainly like all pre-1972 sound 
recordings federalized and, therefore, along with other 
audiovisual works, brought under all paragraphs of section 108. 
We would like section 108 to allow us to provide copies to 
researchers for audiovisual and sound recording materials. We 
would like it to allow us to preserve materials in order to 
save them for future generations before they are visibly 
deteriorating. Those three things alone are at the heart of 
what we are looking for from section 108.
    Mr. Coble. I thank you for that response.
    Mr. Neal, is there hope for users and owners to be able to 
agree on how orphan works and mass digitization efforts should 
be treated under the law?
    Mr. Neal. I believe that there are many opportunities for 
the user community and the content community to work together. 
I want to emphasize that the largest digital collection that 
exists in every library in this country is the material that we 
license and purchase from publishers and vendors. A very small 
percentage of our digital collections represent materials that 
we have converted, we have digitized, or that we have captured 
as born digital information. I think there are many 
opportunities from us to learn from each other, as we did in 
the 108 Study Group process, and to build the right 
understandings and working relationships that allow me as a 
librarian to make content available to my students and my 
faculty in responsible and appropriate ways.
    Mr. Coble. I thank you, sir.
    Mr. Sedlik, I have consistently supported photographers. 
How have their business models been altered by digitization for 
photographers? Are they flourishing or still adapting to the 
digital age?
    Mr. Sedlik. Chairman Coble, the photographers are still 
adapting to the digital age and making their best efforts to 
identify their works. The most challenging aspect of being a 
photographer today is ensuring that your works are identifiable 
after they leave your hands. If we can achieve that, the 
photographers will be able to make a living from their creative 
works during their copyright life and society will benefit to 
the maximum.
    Mr. Coble. Thank you, sir.
    Ms. Constantine, should a revision of section 108 include 
specific provisions for orphan works or mass digitization, or 
should orphan works and mass digitization be covered by 
different provisions of law?
    Ms. Constantine. We would think that if our solution, 
collective licensing, was implemented and that there was money 
to be had for the uses, then that would be a solution.
    With respect to section 108 and mass digitization, it was, 
as my testimony references, not--it was addressed to some 
extent with respect to the technology of photocopying way back 
in the 1960's at the hearings, and mass digitization was not 
taken into account in the current law but it was anticipated, 
and I think that 108 covers it adequately now. But I do think 
that a collective licensing solution would be the best solution 
for both orphan works and for mass digitization.
    Mr. Coble. I thank you for that.
    Mr. Rudick, I have time for one more question, and you will 
be my clean-up hitter. Do you want to add anything generally?
    Mr. Rudick. Your question was what?
    Mr. Coble. I said I have time for one more question, and I 
will call on you to be clean-up hitter. Do you want to add 
anything generally?
    Mr. Rudick. Yes. With respect to the question that Jan just 
answered, section 108 only applies to libraries, archives, and 
I hope someday museums. Orphan work issues and mass 
digitization issues go beyond libraries. There are for-profit 
mass digitization programs. And many of us have orphan work 
problems, including authors and publishers, because we are 
diligent about clearing rights and sometimes we have trouble 
doing that. So I think those should be handled separately from 
section 108.
    And with respect to the collective licensing, there is an 
effective voluntary collective licensing program in the United 
States, which is the Copyright Clearance Center. It does not 
cover all types of works. It focuses on literary works, and it 
is voluntary. But it exists.
    Mr. Coble. Thank you, sir.
    I see my red light has illuminated.
    I recognize the gentleman from New York, Mr. Nadler.
    Mr. Nadler. Thank you.
    First of all, let me begin by asking unanimous consent to 
submit a statement from the Writers Guild of America for the 
record and also a statement of the Copyright Alliance, which my 
colleague, Representative Chu, wanted to make sure was part of 
the record.
    Mr. Coble. Without objection.
    [The information follows:]
    
    
    
    

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    Mr. Coble. And I will remind the witnesses the record will 
remain open for 5 days. So nobody is holding a stop watch on 
you.
    Mr. Nadler?
    Mr. Nadler. Thank you.
    As a loyal Columbia alumnus, I will start with Mr. Neal. 
Mr. Neal, Mr. Rudick and Ms. Constantine suggest exploring the 
possibility of some sort of collective licensing agreement. I 
think I just heard Mr. Rudick say that that exists already. And 
the Copyright Office is currently exploring that.
    What is your view of this approach, and might it be worth 
exploring for orphan works and for mass digitization?
    Mr. Neal. I do not think that a volunteer collective 
licensing program is what we want and need.
    Mr. Nadler. Because?
    Mr. Neal. It would not solve the orphan works problem in my 
view because I question whether many of the rights holders 
would, in fact, emerge to opt in. I also worry whether 
libraries and other users would often end up paying for things 
that would be appropriate to use for free under fair use. 
Collecting societies sometimes in this country and sometimes 
outside the United States have problematic track records, and I 
would be concerned.
    Mr. Nadler. Ms. Constantine, could you comment on that? The 
same question.
    Ms. Constantine. I disagree. I think even Mr. Neal and I 
could sit around the table and craft something that would be 
workable.
    The problem is--and we found this in the Google settlement. 
I think it is true that if you have something of value to 
somebody, they will step forward. So I think an orphan who has 
visions of some kind of compensation will be easy to find.
    And we have an affiliated organization in our Authors Guild 
called the Authors Registry. It was founded in 1995. And we 
have paid over $20 million. Last year, we distributed $2.8 
million, and we are the payment agent for two foreign rights 
organizations from the UK and one from the Netherlands. And we 
distribute secondary royalties, royalties for photocopying, 
broadcast, library lending, and it works. It has been 
successful. And we did a survey and our success rate is better 
than 80 percent. So we are able to find orphans. If there is 
money, they will come.
    Mr. Nadler. Thank you.
    Mr. Rudick, do you want to comment on that briefly before 
my next question?
    Mr. Rudick. It is wrong to think of, I think, collective 
licensing as a total solution to anything. It is a tool that 
you use----
    Mr. Nadler. It could be a partial solution.
    Mr. Rudick. Sorry?
    Mr. Nadler. It could be a partial solution.
    Mr. Rudick. It is a partial solution. It is a tool that 
helps.
    With respect to orphan works, I have always liked the 2008 
Senate bill. I think that answers our needs. I do not think you 
need, for orphan works, an elaborate scheme such as collective 
licensing.
    With respect to mass digitization, again collective 
licensing is a tool.
    I think what we need is legislation that addresses some of 
the issues that the courts are trying to address, and of 
course, that are working their way through the courts.
    Mr. Nadler. Got it. Thank you.
    Mr. Lukow, in your written testimony, you note the desire 
to increase offsite access to the Packard Campus' collection. 
In discussing offsite access in his written testimony, Mr. 
Rudick noted that, ``Without safeguards to ensure that 
electronic copies are available only to authorized users, 
remote access would amount potentially to broad unauthorized, 
uncompensated distribution of copyrighted content.'' And that 
is a real concern.
    Is it possible to ensure sufficient security?
    Mr. Lukow. Yes. The private companies, record companies, 
film studios, and online resources of audiovisual material have 
mechanisms for making access to these materials available to 
consumers. Those technologies are available. We think that they 
can be deployed under section 108 for archives and libraries as 
well.
    Mr. Nadler. Thank you. And to the extent that increased 
offsite access is developed through case law under a fair use 
approach, would sufficient safeguards develop?
    Mr. Lukow. We want fair use and section 108, both 
absolutely at our----
    Mr. Nadler. So I assume your answer is no without the 
section 108.
    Mr. Lukow. I am getting a little lost in the question. We 
definitely want to continue to rely and revise 108 and fair 
use.
    Mr. Nadler. And I would ask Mr. Rudick the same question on 
the last point. To the extent that increased offsite access 
developed through case law under a fair use approach, would 
sufficient safeguards develop?
    Mr. Rudick. I had a little trouble following the question.
    Mr. Nadler. To the extent that increased offsite access is 
developed through case law under a fair use approach, will 
sufficient safeguards develop?
    Mr. Rudick. I think that case law is not a very good way to 
address that issue. It is much better and simpler and easier, I 
think, to address it through legislation. And in our report, we 
noted that for many types of libraries, the question of remote 
access could be dealt with. What you look for is a defined user 
group. The hardest problem to solve--and it is a hard problem 
to solve--is the public library. But I do not think it is 
impossible to solve it.
    Mr. Nadler. My time has expired. Thank you.
    Mr. Coble. I thank the gentleman.
    The distinguished gentleman from Pennsylvania, Mr. Marino.
    Mr. Marino. Thank you, Chairman.
    Good afternoon, lady and gentlemen. Thanks for being here.
    I want to get right to an issue here, and I think you 
danced around it a little but I did not quite get the gist of 
what you were trying to say, or I could be wrong on this 
totally. But when you hear my question, you will understand.
    How are we going to pay for this? I would like each of you 
to respond to that, if you would like to, starting with Mr. 
Lukow.
    Mr. Lukow. Each of us?
    Mr. Marino. Yes. I mean, there is so much in there. We talk 
about music. We are talking about films. We are talking about 
documents. We are talking about papers. I am sure I am missing 
so many other things. And there is no one that does not want to 
see these items preserved, preserve our history--we learn from 
it. We teach our children and our grandchildren about it. But 
how are we going to pay for this restoration? How are we going 
to pay for this process? We are $18 trillion in debt.
    Mr. Lukow. We are grateful to the Congress and the American 
people for having funded the creation of the Packard Campus, in 
collaboration with our private sector partner, the Packard 
Humanities Institute. It is a preservation factory. It 
dramatically increased our preservation capabilities in some 
cases by a power of 10. We preserve about 40,000 items every 
year at the Packard Campus. So with continued support of annual 
appropriations, we have years and years worth of work ahead of 
us, but we are doing well.
    Mr. Marino. But what if we come up with a way--and I am 
asking you for recommendations on it--with a minimal or maybe 
no support by the taxpayers? How do we do this? What do the 
universities have to say? What do the individual entities have 
to say about this, in addition to the Library of Congress? Your 
budget is what? About $19 million a year?
    Mr. Lukow. Yes, for the Packard Campus.
    Mr. Marino. I imagine there are hundreds and hundreds of 
millions of dollars worth of work that can be done out there.
    Mr. Rudick and then down the line please.
    Mr. Rudick. Well, if I understand the question, in terms of 
paying for this, I think there is an opportunity for 
collaboration between the private sector and the libraries with 
respect to preservation. There is no need to do the same thing 
twice. Fundamentally, preservation is a core library mission, 
and I do not think you can rely on the private sector.
    Mr. Marino. The libraries like to--and I agree with them. 
They do not like to charge, and it is a public library. So how 
are you tying the library into--you say the libraries should 
start coming up with some type of fee?
    Mr. Rudick. There is nothing in the 108 report that 
suggested libraries should start charging for core library 
functions. I am not sure I understand that question.
    Mr. Marino. You answered it. I got it.
    Mr. Neal?
    Mr. Neal. Thank you for that question. I think it is 
important to recognize that when we preserve through digital 
technologies, we have the cost of digitizing the item. We have 
the cost of creating the intellectual infrastructure. Let us 
call it cataloging. There is the cost of the actual 
intellectual cataloging metadata, and we have the long-term 
storage of that digital object. We increasingly are allocating 
funds out of our operating budget in order to be able to take 
care of the resources that we receive, we purchase.
    Mr. Marino. At Columbia.
    Mr. Neal. At Columbia.
    Mr. Marino. Okay. So you are doing that in and of your own 
right.
    Mr. Neal. Exactly, because we recognize that is a 
fundamental part of our responsibility to my current faculty 
and students and to future scholars and students who are going 
to need that stuff.
    Mr. Marino. How can we help, though? Columbia and the 
universities are not going to be able to do this on their own 
given the fact of the cost of education, the way that that is 
going. I need recommendations. I need suggestions. We need 
suggestions.
    Mr. Neal. Well, I think public-private partnerships are 
essential. We work, for example, with a large number of 
publishers and vendors who we make these collections available. 
They get a number of years in order to commercially make them 
available for licensing purposes, and after a certain period of 
time, 5 years or 10 years, then it is opened up for public 
access and use.
    Mr. Marino. I have a minute for three more responses, if 
you would break it up.
    Ms. Constantine. I just would add this is not my issue, 
preservation. It is a creation of compensation for rights 
holders. But I have an idea.
    Google is reaping massive profits by its mass digitization 
efforts. If we tax them for both creator compensation and 
preservation efforts, them and others who are taking advantage 
of all of the technological advances and content that they are 
using and getting advertising revenues, that might be a way of 
getting the answers to the libraries' questions.
    Mr. Marino. Thank you.
    Mr. Donaldson, you have about----
    Mr. Donaldson. Of course, this is not my issue either, but 
the cost issue is, which is one of the many reasons we are 
opposed to setting up some sort of a registration when you plan 
to use an orphan work or if you have used an orphan work. All 
of these costs money that nobody is willing to come up with. So 
we are against all those.
    Mr. Marino. Mr. Sedlik, quickly please.
    Mr. Sedlik. Congressman Marino, I would also bring up the 
fact that there are hundreds of millions of works sitting in 
the collections undigitized by individual artists. Illustrators 
and painters, in particular, have a problem in digitizing their 
works. These works have not yet been seen by the Library or by 
any library. These are a record of our time. They are part of 
the fabric of our cultural heritage, and the individual artists 
are left with the burden of digitization.
    Mr. Marino. Thank you.
    I yield back.
    Mr. Coble. I thank the gentleman.
    The distinguished lady from California, I think, is next in 
line. Ms. Lofgren?
    Ms. Lofgren. Well, thank you very much. This has been a 
very interesting session.
    At the beginning, everybody introduced witnesses, but I did 
not get to mention that David Packard, who was from my neck of 
the woods, gave a major gift to the Library of Congress that 
actually made the center possible. And so I think it is worth 
thanking the Packard family and the Packard Foundation for that 
very generous gift that helped make this happen.
    You know, I was thinking back. Howard Berman and I decided 
a number of years ago that we would solve together the orphan 
works problem. And we engaged in discussions and we brought 
people together. And what we found was that it was impossible 
to do. Everybody was arguing with everyone else, and we could 
not get everybody on the same page, even though I think 
everybody was working in good faith. You would think it would 
be easy to solve, and we found out it was not easy to solve. 
And yet, it is still important.
    So here is a question I have. Ms. Constantine, what you 
have outlined is not exactly what we discussed, but it was 
along those lines where you do a search and if you could not 
find, then you could use. I mean, if the person owns a 
copyright, they own it. So if they want to opt out, that is up 
to them. They can make a deal separately. But if you cannot 
find the owner, that is something else. You do not want to wall 
off from the culture. And visual artists objected to that.
    What is your take on Ms. Constantine's proposal, Mr. 
Sedlik?
    Mr. Sedlik. I think, first of all, PLUS is not an advocacy 
organization.
    Ms. Lofgren. No. I understand. But I am just interested in 
your view.
    Mr. Sedlik. I would say that you would find that the visual 
artists felt threatened because of the inability to distinguish 
between works that were older and works that were created 5 
minutes ago. If I, as a photographer, create a work now and 
wished to publish it, it is going to be stripped of its 
identifying information and end up being circulated and used 
and being orphaned.
    Ms. Lofgren. It is not really orphaned. It is being 
infringed.
    Mr. Sedlik. Correct, correct.
    And I think that this was the threat that the visual 
artists perceived.
    A couple of other issues that the visual artists had were 
the inability to stop objectionable use. If their works, once 
orphaned, were out there being used in a manner that was 
counter to the beliefs of the creator and did not fall under 
fair use, that was an issue.
    Competitive use. Let us say one of my images ended up being 
picked up by someone else who found it, did a diligent search, 
did not find me, and begins making posters or some products 
with my images. And then a violation of more of my exclusive 
rights, meaning that--let us say I have an exclusive license 
with one of my images to some party, and somebody else picks it 
up as an orphan work and begins using it in a manner that 
conflicts with my exclusive license.
    The issue of being able to get all of my works into a 
registry so that I could be found is going to take years, 
hundreds of thousands of images per artist being either 
digitized or brought into a registry.
    The issue of reasonable compensation. Some works are more 
rare than others, and this can become an issue.
    Ms. Lofgren. I get the drift.
    We even talked about eliminating the visual arts from the 
orphan work proposal, and there was objection to that as well. 
Do you object? If we were able to craft an orphan works scheme 
that everybody else agreed to, but we excluded the visual arts, 
would there be objection to that?
    Mr. Sedlik. The photographer in me would have no objection 
to that. However, the PLUS Coalition has the libraries, the 
museums, the archives, the educational institutions, and these 
works, should they actually be orphaned eventually, have 
tremendous value to our society, and I do not know that we can 
exclude visual works from the orphan works act. We might have 
to treat them in a special manner.
    Ms. Lofgren. My time is just about out. Just a couple of 
observations.
    One, the fair use doctrine is a court-created doctrine. It 
always has been. It is not statutory. And I actually think we 
are better off with that. It is created because of the First 
Amendment. They do not have fair use in places that do not have 
a constitution. And I just think our capacity to err greatly is 
very high when it comes to that.
    I do think there is an opportunity on the orphan works 
thing. We have not discussed the issue of the term of copyright 
which, of course, we extended dramatically with the Sonny Bono 
Copyright Act. So, it is now basically a century and a half, 
which is a very long time. And I think that to some extent, 
that may be aggravating some of the orphan works issues. Life 
of the author plus 70 years is a long time, and it really is 
walling off--I mean, I am not suggesting--one of my colleagues 
on the Floor told me that he thought we ought to go back to the 
term that was in the Constitution. I think that 14 years would 
be rather small. But I do think we should have a discussion 
about what we have done in terms of walling off whole bodies of 
work for a century and a half. It just seems like something 
that should be part of this discussion.
    With that, my time is up, Mr. Chairman. Thank you very 
much.
    Mr. Coble. I thank the gentlelady.
    The gentleman from Missouri has no questions I am told. The 
gentleman from Florida.
    Mr. DeSantis. Thank you, Mr. Chairman.
    Ms. Constantine, so how did the snippets of books displayed 
in these search engines result in economic losses for the 
authors? And how do you respond to the argument that that 
actually could facilitate more book sales once people get a 
snippet of the work?
    Ms. Constantine. Well, I will go with the second question 
first. It is not proven. There is no evidence of that. And we 
believe taking eyeballs from a retailer like Amazon, for 
instance, and bringing it into Google where there is a search 
facility--you cannot buy anything from Google. You can buy 
something from Amazon. So you have a sight of the book from 
Amazon. You look at it, and then, ``Oh, this is an interesting 
book.'' I can look at a few pages of it. I am going to press 
and I am going to buy a book. With Google, it is not the same 
thing, and there has been no evidence that it has caused more 
sales.
    With respect to snippets, there is a very lucrative excerpt 
market out there for permissions for scholarly and other 
material that is being adversely impacted by snippets, believe 
it or not. And there was testimony to that effect at the Google 
Books settlement fair use hearing. So there are specific 
authors who are losing money because you can get a snippet of 
the information that previously they were able to sell a 
license in the open market.
    But it is not just snippets. What is happening is they are 
copying the entire books. Snippets--you can get 78 percent of 
the book. They basically blacken 10 percent of every book. So 
you can get a large chunk of the book.
    And snippets are not defined anywhere in the law or, in 
fact, in Google's back offices. They can expand and shrink at 
Google's whim. It is a made-up concept and it is a made-up 
term. So snippets can become a page or they----
    Mr. DeSantis. How does that work with Amazon? Do they have 
a limit? Because I know I have shopped----
    Ms. Constantine. 20 percent.
    Mr. DeSantis. Okay, so like table of contents and you get 
to do some of those.
    Like the public benefits to having some of these mass 
digitization products--how should they be weighed against risk 
to authors?
    Ms. Constantine. Well, the problem with mass digitization 
and what is happening now is that they are very vulnerable to 
security breaches. They are online. Once there is a security 
breach, you have widespread, flawless copies going out and 
distributed anywhere. And then there is the pirate issue.
    So the authors who I speak to are very concerned that they 
did not give permission to anybody to digitize their works, and 
they specifically do not want their works--some of them--
digitized because they are concerned about this total loss of 
marketplace if the works get out there into the Ethernet. So it 
could be a devastating blow to literary culture.
    Mr. DeSantis. Mr. Donaldson, how many projects do not 
proceed due to orphan works issues, and what is the economic 
impact of those not proceeding? I know just the ball park 
estimate from being knowledgeable.
    Mr. Donaldson. There are probably thousands. Nobody keeps 
those records, and I wish they did. But the potential is huge 
because there is so much of that wonderful old material that 
could be remade or made into films from books, articles. And in 
the documentary field, virtually all documentaries eventually 
run into the problem of wanting to use something and not being 
able to find the owner. So they have to pull back and try and 
use it within fair use or find something that may not be as 
good, but it will kind of work in that instance.
    Mr. DeSantis. So the economic impact--I mean, it is not 
insubstantial.
    Mr. Donaldson. That is correct.
    Mr. DeSantis. There would be a tangible economic impact. 
Okay, great.
    Mr. Sedlik, what has changed in the photography world since 
the original discussions about orphan works legislation, and 
have positions of photographers towards these orphan works 
changed, and if so, how?
    Mr. Sedlik. The photography organizations have come 
together to attempt to reach consensus in the interim. I do not 
know that they have reached consensus. However, I believe that 
you will find that the photographers and illustrators are very 
open to cultural heritage type usages, noncommercial in nature, 
of their works. There still remains the concern in 
distinguishing between commercial and noncommercial usages of 
orphan works.
    But I think that you will find that the photography groups 
acknowledge that society is the ultimate beneficiary of 
copyright law. The issue that they see is that if copyright is 
a tree, you do not want to chop the tree down to provide the 
public with access to the apples. You want to put a ladder up 
and let people get access and keep the tree growing strong and 
producing apples indefinitely.
    Mr. DeSantis. Great. I am out of time. I yield back to the 
Chairman.
    Mr. Coble. I thank the gentleman.
    This concludes today's hearing. I stand corrected. The 
gentleman from Florida.
    Mr. Deutch. Thank you, Mr. Chairman, and thank you to the 
witnesses for waiting around for me.
    I appreciate your holding this hearing today.
    I wanted just to go back to something that you said, Mr. 
Lukow, in your testimony earlier. You referenced the problems 
that are created by the sound recordings produced prior to 
1972, which have to rely on State rather than Federal copyright 
protections. As an avid music fan myself, I have been troubled 
that there is an enormous number of America's music legends, 
really real legends, that do not benefit from the basic 
protections of sound recordings as our contemporary artists do.
    And I applaud Ranking Member Conyers for his attention to 
this issue as well.
    You told Chairman Coble that legislation correcting this 
shortcoming is needed. I absolutely agree.
    One issue that you raised, though, that I had not 
considered before is the challenges that the pre-1972 loophole, 
I would call it for lack of a better word--the challenges that 
are created for preservation. And I would like you just to run 
through some of those issues as they relate to the issue of 
preservation.
    Mr. Lukow. Well, the bottom line is that sound recordings, 
pre-1972 sound recordings, because they have no Federal 
protection, they are not included in any of the clauses of 
section 108 which authorize preservation.
    So we are doing a lot of preservation under fair use and 
recognizing items that are degrading and in need of immediate 
preservation.
    One of our most public high profile projects was the 
Library of Congress National Jukebox where we did receive a 
license from Sony Music to digitize tens of thousands of the 
earliest recordings from the first 35 years of history. So that 
became a major preservation and access project. It is very 
successful. We are going to be adding another 10,000 recordings 
to the jukebox later this year.
    Mr. Deutch. Great. I appreciate that.
    Mr. Rudick, I just wanted to turn to you on a different 
issue, although judging from your reaction, you may have a 
comment on my first question.
    Mr. Rudick. Well, I just wanted to point out that among the 
recommendations in the section 108 report is a proposal that 
would address just the concern that Mr. Lukow raised. So we did 
recognize the problem and we did propose just the solution that 
is being requested. Sorry.
    Mr. Deutch. No. I appreciate that.
    I wanted to talk about the orphan films that I think you 
had discussed. No, no. Mr. Donaldson?
    Mr. Donaldson. Yes, sir.
    Mr. Deutch. Sorry about that. That is what I get for 
running to another meeting in between.
    Of those, I think there were 10,000 of them, 10,000 orphan 
films?
    Mr. Donaldson. At the UCLA film and television archive 
alone.
    Mr. Deutch. I am just curious. Again, a process question. 
Did UCLA try contacting the director or writer for the films as 
an attempt to try to get at this? I imagine that many of them 
are still with us or, at a minimum, their heirs would know 
where to find the copyright holder.
    Mr. Donaldson. I do not know the answer to that question, 
but I would say that a substantial search for the copyright 
owner of a film, when otherwise not locatable, should include 
contacting the director and writer because they talk to each 
other and maintain friendships over a lifetime and say, ``Oh, I 
know where that guy went.'' To me, a substantial search really 
has to be a substantial search. That would include friends of 
friends. Bill Saunders has tried all kinds of ways to find out 
who owns his grandfather's music.
    Mr. Deutch. I appreciate it.
    Mr. Chairman, I appreciate your holding this hearing open 
long enough for me to ask a couple questions. And I yield back.
    Mr. Coble. You are indeed welcome.
    Again, we will express our thanks to the distinguished 
panel that has joined us today.
    This concludes today's hearing. Thanks to all of our 
witnesses for attending.
    Without objection, as I said previously, all Members will 
have 5 legislative days to submit additional written questions 
for the witnesses or additional materials for the record.
    This hearing is adjourned.
    [Whereupon, at 3:41 p.m., the Subcommittee was adjourned.]
                            A P P E N D I X

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               Material Submitted for the Hearing Record
















                                
































                                








































                                








                                










                                

             Prepared Statement of Marc Maurer, President, 
                  the National Federation of the Blind
    Section 108 of the Copyright Act provides a safe harbor for 
libraries and archives to make copies of copyrighted works, without 
prior authorization, under a very limited set of circumstances. In the 
words of the statute, ``[n]othing in this section . . . in any way 
affects the right of fair use as provided by section 107.'' \1\ Section 
108 could not be any clearer that it does not supplant or otherwise 
limit fair use rights. Because fair use is critical to enabling the 
blind to access our society's wealth of information, the National 
Federation of the Blind (``NFB'') respectfully requests that any 
revision to the Copyright Act retain a provision expressly stating that 
libraries' right to copy is not limited to the circumstances enumerated 
in section 108.
---------------------------------------------------------------------------
    \1\ 17 U.S.C. Sec. 108(f)(4).
---------------------------------------------------------------------------
    Making copies of copyrighted works for the blind has long been 
considered a paradigmatic example of fair use.\2\ Through the doctrine 
of fair use, blind individuals have been able to access copies of works 
that would otherwise be unavailable to them given the scant market for 
accessible texts. Fair use and section 121 \3\ of the Copyright Act 
have worked to vastly increase access to copyrighted works for the 
blind. Programs like the Library of Congress National Library Service 
for the Blind and Physically Handicapped, Learning Ally, and Bookshare 
allow quick access to hundreds of thousands of popular titles to blind 
and other print-disabled readers.
---------------------------------------------------------------------------
    \2\ Copyright Law Revision, H. R. Rep. No. 94-1476 at 73 (1976); 
Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 455 
n.40 (1984).
    \3\ 17 U.S.C. Sec. 121 permits authorized entities to copy and 
distribute copyrighted materials to the blind and other print-disabled 
individuals in specialized formats.
---------------------------------------------------------------------------
    With the development of the HathiTrust digital library, a digital 
collection of more than ten million works from various university 
libraries, equal access to scholarly works for blind students and 
scholars has become a reality. Before the HathiTrust, blind university 
students would have to wait weeks or months for limited, ad hoc access 
to required course reading and had no meaningful opportunity to engage 
in library research. The HathiTrust has begun to change this. Blind 
students and scholars at participating universities now have access to 
millions of texts at their fingertips, with the ability to browse 
titles, skim through book chapters, consult tables of contents and 
indices, and perform research on par with their sighted peers. The 
HathiTrust has been revolutionary for the blind.
    If section 108 were to be revised so that it limited, or could be 
interpreted as limiting, libraries' rights to make copies for the blind 
under sections 107 or 121 of the Copyright Act, all of the progress in 
advancing access to information for the blind would be lost. Indeed, in 
its lawsuit challenging the legality of the HathiTrust digital library, 
the Authors Guild has argued that section 108 requires that the 
HathiTrust be shut down.\4\ The crux of the Authors Guild's argument is 
that the HathiTrust violates the Copyright Act because it exceeds the 
bounds of section 108 by including copies of every work in the 
libraries' collections (rather than only those specifically requested 
or otherwise authorized under section 108) and by permitting blind 
readers to access the digital copies on their home computers outside of 
the walls of the library. Given the clear language of section 
108(f)(4), the district court rejected the Authors Guild's argument.\5\ 
Nevertheless, the Authors Guild has continued to argue on appeal that 
the libraries are not permitted to copy beyond what is authorized under 
section 108.\6\
---------------------------------------------------------------------------
    \4\ The Authors Guild, Inc. v. Hathitrust, 902 F. Supp. 2d 445, 456 
(S.D.N.Y. 2012). The NFB intervened as a defendant in this lawsuit.
    \5\ Id. at 457-58.
    \6\ The Authors Guild's appeal to the United States Court of 
Appeals for Second Circuit is pending. See No. 12-4547-cv (2d Cir.)
---------------------------------------------------------------------------
    If the Authors Guild's argument were to prevail, or if section 
108(f)(4) were eliminated, the doors of the library would, as a 
practical matter, be closed to the blind. If libraries' right to copy 
materials were limited to only those rights set forth in section 108, 
libraries could make copies for archival purposes, but they could not 
create libraries of digital copies for use by the blind because such 
copies would not have been made upon the ``request'' of the user, but 
in advance of and in anticipation of such requests.\7\ Thus, a student 
in need of sources for a research paper would have to wait for library 
staff to make an accessible copy of each book that seemed remotely on 
point--a process that might take longer than the time in which the 
student had to write the paper. Yet sighted students could simply walk 
into the library, browse the stacks, and immediately select and begin 
reading relevant texts. In a world in which libraries could not engage 
in mass digitization to make accessible copies of their collections in 
advance of individual requests, there is no way a blind student could 
compete with his peers or meaningfully engage in library research. The 
only way that blind students and scholars can be assured of timely and 
equal access to information is by having large collections of 
accessible digital copies ready for use in advance of requests for 
specific texts.
---------------------------------------------------------------------------
    \7\ 17 U.S.C. Sec. 108(d),(e).
---------------------------------------------------------------------------
    The other problem with confining libraries' ability to copy texts 
to the confines of section 108 is that it limits digital copies made 
for archival purposes from leaving the premises.\8\ A blind Ohio State 
University student who had persuaded Bookshare to make him a copy of 
his introduction to economics textbook would have to fly to northern 
California, where Bookshare's offices are located, each time the 
professor assigned new pages.
---------------------------------------------------------------------------
    \8\ 17 U.S.C. Sec. 108(b)(2), (c)(2)
---------------------------------------------------------------------------
    A revision of the Copyright Act that limited libraries' right to 
make accessible copies to only those circumstances enumerated in 
section 108 would therefore remove accessible texts from the hands of 
blind individuals, effectively excluding the blind from participation 
in our increasingly information-driven society. Such an outcome would 
run counter to the purpose of the Copyright Act, which is ``to promote 
the Progress of Science and useful Arts.'' \9\ The Constitution is 
clear that copyright is first and foremost a tool for promoting 
learning, not for barring the blind from our collective storehouses of 
knowledge. Thus, to fulfill the purposes of copyright and to advance 
the tremendous progress that has been made in opening the library doors 
to the blind, the rights of libraries to make copies should not be 
limited to the circumstances enumerated in section 108, but should 
continue to include the rights set forth in section 107 and 121 of the 
Copyright Act.
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    \9\ U.S. Const., Art. I, Sec. 8, cl. 8.


                                 
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