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




                   COPYRIGHT ISSUES IN EDUCATION AND 
                       FOR THE VISUALLY IMPAIRED

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


                                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

                               __________

                           NOVEMBER 19, 2014

                               __________

                           Serial No. 113-119

                               __________

         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
RAUUL 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

                              ----------                              

                           NOVEMBER 19, 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

The Honorable Bob Goodlatte, a Representative in Congress from 
  the State of Virginia, and Chairman, Committee on the Judiciary     3

                               WITNESSES

Jack Bernard, Associate General Counsel, University of Michigan
  Oral Testimony.................................................     5
  Prepared Statement.............................................     7

Allan Robert Adler, General Counsel, Association of American 
  Publishers
  Oral Testimony.................................................    13
  Prepared Statement.............................................    15

Scott C. LaBarre, State President, Colorado National Federation 
  for the Blind
  Oral Testimony.................................................    39
  Prepared Statement.............................................    40

Roy S. Kaufman, Managing Director, New Ventures, Copyright 
  Clearance Center
  Oral Testimony.................................................    44
  Prepared Statement.............................................    46

          LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING

Prepared Statement of the Honorable John Conyers, Jr., a 
  Representative in Congress from the State of Michigan, and 
  Ranking Member, Committee on the Judiciary.....................    55

                                APPENDIX
               Material Submitted for the Hearing Record

Prepared Statement of the Honorable J. Randy Forbes, a 
  Representative in Congress from the State of Virginia and 
  Member, Committee on the Judiciary.............................    71

Letter from Allan Robert Adler, General Counsel, Association of 
  American Publishers............................................    72

Letter from Blake E. Reid........................................    78

Letter from Denise Marshall, Executive Director, The Council of 
  Parent Attorneys and Advocates, Inc. (COPAA)...................    82

Prepared Statement of Sandra Aistars, Chief Executive Officer, 
  Copyright Alliance.............................................    84

Prepared Statement of the Library Copyright Alliance (LCA).......    92

Prepared Statement of Cory Sandone, President, the Association of 
  Medical Illustrators (AMI).....................................   115

Prepared Statement of Andrew Shore, Executive Director, the 
  Owners' Rights Initiative......................................   122

Response to Questions for the Record from Roy S. Kaufman, 
  Managing Director, New Ventures, Copyright Clearance Center....   124

 
                   COPYRIGHT ISSUES IN EDUCATION AND 
                       FOR THE VISUALLY IMPAIRED

                              ----------                              


                      WEDNESDAY, NOVEMBER 19, 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 3:30 p.m., in 
room 2141, Rayburn Office Building, the Honorable Howard Coble, 
(Chairman of the Subcommittee) presiding.
    Present: Representatives Coble, Goodlatte, Marino, Chabot, 
Farenthold, Nadler, Conyers, Jeffries, and Jackson Lee.
    Staff Present: (Majority) Joe Keeley, Subcommittee Chief 
Counsel; Olivia Lee, Clerk; (Minority) Jason Everett, Counsel; 
and Norberto Salinas, Counsel.
    Mr. Coble. Good afternoon, ladies and gentlemen. Thank you 
again for being here today.
    I am an avid fan of schools and universities in our Nation, 
with a particular fondness, of course, to North Carolina 
schools. I have long taken pride as the co-chair of the 
Creative Rights Caucus that so many of the educational 
materials used around the world are created and published in 
America.
    Like all copyright owners, publishers are adapting to the 
digital age with new forms of access to new types of works. 
Most of us in the room today carried our books to school, 
perhaps injuring backs in the process, with one particular 
teacher who assigned what seemed to be the heaviest books she 
could find.
    Today, however, students' backs carry a much lighter load 
with iPads and laptops replacing printed books. This switch to 
e-books saved some backs and some books as well, since students 
do not need to buy textbooks if they don't want or need them.
    E-books are at the heart of an important and recent 
copyright case at Georgia State University, and I am sure we 
will hear about this later this afternoon.
    I am a Tar Heel fan more than a Panther fan, but I will 
overlook that for the moment, for purposes of convenience.
    Finally, our Nation has long supported our visually 
impaired by creating laws to enable the conversion of 
copyrighted works and devoting Federal funding to projects such 
as the National Library Services at the Library of Congress. 
Two of our witnesses today, in fact, have personal experience 
with visual impairments. I welcome their thoughts as well, as 
we will continue reviewing our Nation's copyright laws.
    Again, welcome to all of you for being here. We are looking 
forward to the hearing.
    And now I am pleased to recognize the distinguished 
gentleman from New York, the Ranking Member of the 
Subcommittee, Mr. Jerry Nadler.
    Mr. Nadler. Thank you, Mr. Chairman, for holding this 
hearing on copyright issues related to education and 
accessibility.
    As you know, the Copyright Act provides exceptions and 
limitations for education and for the benefit of blind and 
visually impaired people. Publishers produce a wide variety of 
educational materials for teachers and students, many of whom 
now access material through interactive online classes and 
multimedia formats.
    One of the fastest trends in educational uses in technology 
is online learning. However, distance learning raises all sorts 
of questions about copyright protection. I would like to hear 
from the witnesses about whether or not they think the current 
eligibility requirements for the distance education copyright 
exception are effective.
    As it stands now, the distance education exception is only 
available to accredited nonprofit institutions and only allows 
the performance of portions of these types of works without a 
license. The online learning environment is different from 
face-to-face learning, and publishers and authors believe these 
restrictions are important, as there is a greater risk of 
piracy in an online learning environment.
    As we examine the online education marketplace, we need to 
take a look at the Technology, Education, and Copyright 
Harmonization Act, the TEACH Act. I wonder where they got that 
acronym. The TEACH Act is located in Section 110(2) of the 
Copyright Act. It was enacted 12 years ago to deal with the 
increase in online education.
    I understand that many educators now say that the TEACH Act 
is extremely complex. I would like to hear from our witnesses 
about ways to make the TEACH Act more workable and, presumably, 
more simple.
    The Copyright Act supports uses that will benefit the 
general public while balancing the rights of authors. The fair 
use doctrine applies to the creation of accessible format 
copies of copyrighted works and may also apply to educational 
uses.
    I would like the witnesses to discuss fair use in 
educational activities as it relates to recent judicial 
decisions.
    It is often difficult to predict how a court will rule when 
it comes to educational use, because fair use is fact-specific. 
It is also often difficult to provide reliable guidance to 
teachers and educators, and this has been a major criticism of 
fair use law. Teachers and educators want reliable guidance 
about what they are permitted to do in the learning 
environment.
    We want to teach our students how to be doctors, 
scientists, innovators, and we want to discourage copyright 
infringement, so we have to get this right and find a proper 
balance between protecting copyright holders' rights and still 
ensuring fair use by students and teachers.
    We should also examine the exception for certain 
performances and displays of copyrighted works in classrooms. 
Section 110(1) allows educators and students to screen films on 
topics that a class is studying and provides important benefits 
to the education community. The use must be only in nonprofit 
institutions and must be in person in the classroom.
    In addition, the Copyright Act contains exceptions for 
blind and visually impaired persons. In particular, the Chafee 
amendment has helped provide access to copyrighted works, but 
the number of authorized entities that may create and 
distribute accessible works has been an issue of debate.
    I look forward to hearing from the witnesses about whether 
or not the Chafee amendment ought to be read to include the 
disability services office of a university or the accessibility 
service of a public library system, as those in the visually 
impaired community have argued.
    I thank Chairman Coble and Chairman Goodlatte for including 
these issues as part of the Subcommittee's review of the 
Copyright Act. I look forward to hearing from our witnesses, 
and I yield back the balance of my time.
    Mr. Coble. I thank the gentleman.
    Mr. Goodlatte, the Chairman of the full Committee, would 
you like to have an opening statement, sir?
    Mr. Goodlatte. Yes, thank you, Mr. Chairman.
    Our American education system depends upon the usage of a 
wide variety of copyrighted works, from CAD software that 
future engineers use to learn how to design and build our 
growing cities, to historical news clips used by teachers to 
explain important historical events. In recognition of the 
important role of education in our society, the fair use 
provisions of Title 17 specifically identify educational uses 
as being potentially considered fair use.
    Copyright law has long recognized that relatively small 
uses of copyrighted works for education are likely to be 
considered a fair and, therefore, free use. In contrast, the 
use of an entire work may and often does require the copyright 
owner to be compensated for his or her work.
    A large number of copyright owners have responded to the 
need to educate future scholars by offering educational pricing 
for full access to newspapers, magazines, and software. Their 
support of students is much appreciated by parents who pay the 
bills, as well as teachers who are, therefore, able to offer 
cutting-edge software in their courses.
    Title 17 also includes several specific provisions related 
to distance learning, the utility of at least one of which has 
been called into question by educational institutions. However, 
copyright owners should and do have the expectation that 
whenever their works are used for educational use, distance 
learning or otherwise, these student versions of works do not 
escape the educational market and replace routine commercial 
sales of their products to businesses.
    Although their means of access to copyrighted works may be 
different than others, the visually impaired community has the 
expectation and the right to participate in our community and 
the copyrighted works created within it. Our Nation's laws have 
long recognized and encouraged conversion of copyrighted works 
into formats for the visually impaired. The National Library 
Service at the Library of Congress is but one example of this, 
and I welcome the head of NLS who is in the audience today.
    The technology used to access copyrighted works for the 
visually impaired has changed with the digital revolution.
    A witness from the American Federation for the Blind 
highlighted this fact at a prior hearing on Chapter 12. The 
digital revolution may require updates to copyright laws for 
all Americans.
    As the final copyright review hearing of 2014, I want to 
thank the witnesses for making their time to be here this 
morning.
    I want to particularly thank the Chairman of the Committee, 
Mr. Coble, who has done many, many, many years of work on 
intellectual property law and has guided this Committee for the 
last 2 years in a comprehensive review of our copyright laws 
that has been very thoroughgoing. And we hope to move forward 
on many of the ideas developed by the Chairman and others who 
have worked on this.
    But since he will be departing the Congress, I want to 
particularly thank him for the contributions that he has made 
for a significant part of his life. And I think we should give 
him a round of applause. [Applause.]
    Thank you, Mr. Chairman.
    Mr. Coble. Mr. Chairman, thank you for your generous words. 
I appreciate it. I will give you more time, if you like to have 
more time. [Laughter.]
    I do thank you for that.
    We have a very distinguished panel today. I will begin by 
swearing in our witnesses before introducing them.
    If you would please rise, I will present the oath to you.
    Do you swear that the testimony that you are about to give 
is the truth, the whole truth, and nothing but the truth, so 
help you God?
    Let the record reflect that the witnesses answered in the 
affirmative.
    You may be seated.
    Folks, you have heard me in the past. This is the last time 
I will be able to admonish you about our 5-minute rule. There 
is a panel before you with three colors. As long as the green 
is illuminated, you are on safe, thick ice. Once the green 
changes to amber, and then amber to red, the ice on which you 
are skating is thin. You will not be punished, however, if you 
don't comply. But if you can stay within the 5-minute rule, we 
would be appreciative.
    Our first witness today is Mr. Jack Bernard, Associate 
General Counsel at the University of Michigan Law School. As 
the lead copyright writer for the university, Mr. Bernard's 
contributions create access for individuals with print 
disabilities. Mr. Bernard received his J.D. from the University 
of Michigan Law School and his master's in higher education 
from the University of Michigan.
    Mr. Bernard, it is good to have you with us.
    Our second witness is Mr. Allan Adler, General Counsel of 
the Association of American Publishers. In his position, Mr. 
Adler deals with intellectual property and new technology 
issues in our Nation's book and journal publishing industries. 
He holds his J.D. from George Washington University School of 
Law and B.A. from the State University of New York at 
Binghamton, home of the Tri-Cities, I think.
    Right, Mr. Adler?
    Mr. Adler. Yes, sir.
    Mr. Coble. Good to have you with us.
    Our third witness is Mr. Scott LaBarre, Colorado State 
President of the National Federation for the Blind. In his 
position, Mr. LaBarre specializes in laws affecting individuals 
who are blind and disabled. In addition, he serves as President 
of the National Association of Blind Lawyers and sits as chair 
of the American Bar Association's Commission on Mental and 
Physical Disability Law. He received his J.D. from the 
University of Minnesota and B.A. from St. John's University.
    Mr. LaBarre, it is good to have you with us as well.
    Our fourth and final witness is Mr. Roy Kaufman, Managing 
Director of New Ventures at the Copyright Clearance Center. In 
his position, Mr. Kaufman is responsible for expanding service 
for disabilities at the CCC, both toward new markets and 
services. He has lectured extensively on the subjects of 
copyright licensing and law medium. Mr. Kaufman received his 
J.D. from Columbia School of Law and his bachelor's degree from 
Brandeis University.
    It is good to have you with us, Mr. Kaufman.
    I apologize for my raspy throat. I am coming down with the 
early stages of a bad cold. Bear with me.
    Mr. Bernard, if you will, kick us off, and keep your eye on 
that ever-bright green to amber to red light as it illuminates.
    Again, it is good to have all of you with us.

     TESTIMONY OF JACK BERNARD, ASSOCIATE GENERAL COUNSEL, 
                     UNIVERSITY OF MICHIGAN

    Mr. Bernard. Thank you, Mr. Chairman and Members of the 
Committee. Good afternoon. I am so pleased to be here.
    My name is Jack Bernard, and I am Associate General Counsel 
at the University of Michigan. I am here on behalf of higher 
education associations whose members teach the vast majority of 
college students, and on whose campuses the abundance of public 
research takes place.
    We think about copyright every day, in the context of the 
academy because our own missions are so consonant with the 
central theme of copyright, which is to promote progress in 
order to advance learning. The teaching, research, scholarship 
that we do on our campuses walks hand-in-hand with the 
fundamental objectives of copyright, so it is never far from 
our minds to be thinking about copyright.
    We also think regularly about the balance in copyright. 
That is, we want to maintain a robust, expressive environment 
consistent with the First Amendment, at the same time that we 
want to offer copyright holders some incentive to actually 
create works and to distribute those works for the purpose of 
progress. Those two things happen hand-in-hand, and we are 
mindful of those in the academy. They are important to what we 
do every day, in terms of our teaching and scholarship and 
research.
    We are also well-suited to think about these issues because 
we sit in a lot of the seats that copyright makes available. 
Postsecondary institutions and their constituents are copyright 
holders. They are authors and creators. They are also 
distributors and publishers. At the same time, they are users 
and consumers of copyrighted works.
    As authors of works, as creators of works, every year, 
postsecondary institutions and their constituents create 
millions of copyrighted works for the purpose of advancing 
society. Whether we are just talking about drawings with pen on 
paper, or the latest in holography, or how we describe the new 
throat stent that allows infants to breathe who have weak 
esophaguses, we are making these kinds of contributions on a 
daily basis.
    We are also distributing massively. We are not just 
distributing in the ways people ordinarily think, like speaking 
to students in the classroom or writing books or articles. We 
also have television stations and radio stations. We have 
satellites, and we have Internet nodes. We are trying our best 
to get the message out through the means that are there, but we 
are also mindful of the rights that are associated with 
messaging, and particularly around copyright.
    Finally, we are robust consumers of copyrighted works. If 
you just look at the libraries of postsecondary institutions, 
they spend billions of dollars every year just on acquisitions. 
This doesn't include all the money postsecondary institutions 
spend on things like licensing software or licensing music or 
film. So this is a robust part of the engagement that happens 
on college campuses, interacting with copyrighted works.
    Now postsecondary institutions feel that copyright is 
working pretty well. I mean, nothing is perfect, but it is 
working pretty well for us because it enables us to make the 
broad kind of research and scholarly uses that we typically 
make. We know that as technology moves forward, as there are 
new models of doing business, as there are new and innovative 
ways of putting forward ideas and also getting new information, 
that copyright will have to adjust. But those adjustments 
should not undermine the central pillars of copyright, which is 
a balance between the copyright holders' rights in Section 106, 
the public's limitation on those rights in Section 107, and the 
complementary sections of the copyright in Sections 108 through 
122, which allow either more robust uses of the Copyright Act 
or of copyrighted works, or they make it easier for the public 
to make determinations.
    For instance, in Section 108 of the Copyright Act, 
libraries can use Section 108 rather than going through a fair 
use analysis to make determinations about preserving works. If 
you want to think about expanding roles, look at Section 115, 
where a person at a university might make a recording of 
someone else's recording, and make their own recording of 
someone else's work, and use the mechanical license in that 
context.
    Our feeling is that copyright is actually doing very well 
for us. It is critical that we maintain a flexible fair use, 
and that fair use allows us to know that we can adjust over 
time the uses that we are making in order to provide these 
important, robust experiences on the college campus.
    I will just conclude by saying, when we think about 
accessibility, we can't think of a circumstance in which the 
Copyright Act should ever prevent a university or college from 
making a reasonable accommodation for its students. So the 
central message here is that we think the Copyright Act is 
doing superb work overwhelmingly. While there are places to 
nudge, we would urge Congress not undermine the three pillars 
of copyright.
    Thank you.
    [The prepared statement of Mr. Bernard follows:]
    Prepared Statement of Jack Bernard, Associate General Counsel, 
                         University of Michigan
                     statement of higher education
    Submitted on behalf of: Association of American Universities 
American Association of Community Colleges American Association of 
State Colleges and Universities American Council on Education 
Association of Public and Land-grant Universities National Association 
of Independent Colleges and Universities
                      submitted november 17, 2014
    The higher education associations listed above collectively 
represent a broad range of higher education institutions in the United 
States, including public and private colleges and universities with 
comprehensive graduate and professional education programs. Our members 
educate a substantial majority of American college and university 
students and conduct most of the nation's basic research.
A Carefully Considered Bargain
    In the United States, we are particularly thoughtful and deliberate 
when we turn our attention to copyright law, because it is so deeply 
connected to two of our most fundamental values: freedom of expression 
and promotion of progress. Copyright law provides a strong, effective 
incentive for authors, artists, musicians and others to produce 
creative works that enrich the lives of our nation's citizens and 
produce new knowledge about and understandings of the human condition 
and the world in which we live. Because the exercise of copyright 
rights also has the potential to curtail expression and innovation, 
however, we have crafted the provisions of our copyright law to strike 
the appropriate balance between the rights granted to copyright holders 
and the rights reserved for the public.
A Common Cause
    Universities share a common mission with copyright--namely, to 
serve society by promoting the ``Progress of Science and useful Arts'' 
by encouraging and supporting the creation and dissemination of 
knowledge and creative works for the public's benefit. At the same 
time, universities have a distinctively robust relationship with 
copyright law. Universities and their constituents--faculty, students, 
and staff--are creators, distributers, and consumers of copyrighted 
material, a dynamic that has only become more complex in the digital 
era.
    Our member colleges and universities, the federal government, 
industry, and philanthropic organizations spend billions of dollars 
annually to conduct research and scholarship for the benefit of 
society. Frequently, the copyrighted works that result from this 
research are made freely available to the public or are submitted to 
publishers, which conduct critical peer review and work with authors of 
accepted manuscripts to prepare articles for commercial distribution. 
Unsurprisingly, postsecondary institutions are among the nation's 
leading copyright consumers, as well. We reliably purchase and license 
billions of dollars of copyrighted works each year and our students, 
too, annually purchase billions of dollars of copyrighted works.
    To provide a few additional examples of the intricate relationship 
that institutions of higher education have with copyright:

          University faculty--who are authors themselves--
        present and discuss copyrighted works in both analog and, 
        increasingly, digital formats. For example, as a norm, faculty 
        now teach using PowerPoint presentations and comparable 
        applications and assign materials that are best accessible 
        through digital means. In addition to using such presentations, 
        faculty regularly exploit the vast capacities of the Internet, 
        often accessing research collections held by museums, 
        libraries, and academic and research institutions worldwide in 
        real time. In today's world, course management systems are at 
        least as much a part of the collegiate classroom as the 
        chalkboard.

          ``Flipped classroom'' experiences, which are a form 
        of blended learning, are becoming increasingly common at 
        American universities. In the flipped classroom, the professor 
        or instructor presents her lectures, slides, notes, and other 
        handouts asynchronously through a course management system 
        before the students come to class. The instructor then can 
        spend precious class time in a much more engaged interaction 
        with students rather than lecturing to them. Classroom activity 
        may be recorded, providing students with opportunities to 
        revisit material covered in live classroom sessions and 
        supplement the more interactive, discussion-based live 
        classroom experience. These experiences also offer alternatives 
        to students who, due to illness or other causes beyond their 
        control, cannot attend the live classroom sessions.

          Faculty collaborate within and across institutions of 
        higher education, domestically and internationally, on 
        innovative projects that are difficult to situate within the 
        traditional contours of intellectual property. For example, 
        full-text searching and deep and broad data mining have opened 
        up unprecedented opportunities for innovative scholarship in 
        many different fields, including the biological and physical 
        sciences, the humanities, social sciences, law, etc. 
        Researchers from scores of postsecondary institutions across 
        the world are working collaboratively and in parallel to 
        explore the complexities of the human genome. Because access to 
        the night sky and from certain vantage points are 
        geographically bound, much astronomical research happens 
        through networks of scholars. Similar synergistic efforts take 
        place across disciplines such as medicine, volcanology, public 
        health and infectious disease, environmental studies, 
        journalism, public policy, physics, and archaeology, to name 
        but a few.

          Students commonly need to access copyrighted content, 
        including audio-visual content, as a central component of their 
        educational experiences. Students also yearn to innovate; for 
        example, imagine the student who wishes for her senior project 
        to explain the role of children in 20th century literature by 
        creating an audiovisual presentation, which might include 
        music, performance, and images to illustrate themes and provide 
        critical examples. The doctoral dissertations of today are 
        increasingly dynamic, interactive tools for imparting 
        knowledge.

          Universities also support a range of internal and 
        affiliated enterprises that both generate and depend upon use 
        of copyrighted works, including research libraries, archives, 
        museums, and academic presses. Universities operate television 
        and radio stations, satellites, cable networks, Internet nodes, 
        and a host of other communication hubs that transmit and 
        receive copyrighted communications. They have music studios, 
        film and video production teams, animation labs, virtual 
        reality labs, 3D printers, and art studios that foster every 
        imaginable expressive medium.

    Copyright supports the fundamental mission of colleges and 
universities to create and disseminate new knowledge and understanding 
through teaching, research, and scholarship. Copyright does this not 
only by providing incentives for the creation of new works through the 
grant of proprietary rights to copyright holders, but also--equally 
critically--by carefully limiting those rights in order to facilitate 
public access to, and use of, creative works.\1\
---------------------------------------------------------------------------
    \1\ To be clear, as the higher education associations noted in 
their amicus brief in Cambridge University Press v. Patton, at 30, No. 
12-14676 (11th Cir., Oct. 17, 2014), available at http://
www.acenet.edu/news-room/Documents/GSU-AmicusBrief.pdf, academic works 
are typically created with the author's expectation that they will be 
widely disseminated and discussed for the purpose of scholarship. 
Academic authors do not look to the economic incentives of copyright 
protection to induce them to create. Even for such works, however, 
copyright remains an important means of protecting the integrity of 
academic works and ensuring appropriate attribution.
---------------------------------------------------------------------------
Maintain the Basic Structure of Rights in the Copyright Act
    First, as an overarching matter, because many sectors of society, 
including the academy, rely on how the Copyright Act structures the 
balance of rights, the higher education associations believe that any 
endeavor to update, amend, or even tweak the Copyright Act should not 
disrupt the basic structure of rights. This structure has three 
connected pillars: a) the rights of copyright holders, b) fair use, and 
c) other limitations supporting additional public uses. This framework 
has been extraordinarily successful. Changes to the relationship among 
these grounding elements would destabilize the higher education 
ecosystem.
    The first pillar, the rights of copyright holders, is currently 
spelled out in Sec. Sec. 106 and 106A.\2\ These valuable rights are 
subject to and limited by the rights and uses authorized for the public 
in Sec. Sec. 107-122. This structure balances the constitutional speech 
and progress objectives of the public with the copyright holders' 
opportunities to make and to authorize important uses of their 
copyrighted works.
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    \2\ These rights include the right to reproduce (i.e., make copies) 
of a work; create derivative works based on the work; distribute copies 
of the work; publicly display the work; perform the work; and, for 
sound recordings, to perform the work publicly by means of a digital 
audio transmission.
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    The public's fair use rights (Sec. 107), the second pillar of 
copyright's structure, stand out among the other limitations on a 
copyright holder's rights, because the flexibility built into fair use 
enables copyright to achieve its constitutional objectives. Courts can 
ensure that the public has sufficient uses so as not to transgress the 
First Amendment and, at the same time, enable copyright holders to 
receive their benefits in this bargain. Fair use allows the 
uncertainties that emerge from new uses, new technologies, or new 
business models to be addressed in a manner that achieves copyright's 
constitutional purpose.
    The additional rights and uses (Sec. Sec. 108-122) of the third 
pillar have a complementary relationship with fair use. Those that 
expand upon fair use (e.g., the compulsory license rights in Sec. 115) 
enable the public to make important uses that would likely fall outside 
fair use. Others (e.g., reproduction rights for libraries and archives 
in Sec. 108) enable the public to apply simpler metrics (than the 
sometimes unpredictable four-factor test of fair use) to make 
appropriate uses of copyrighted works. Through this pillar, Congress 
has been able to foster uses most beneficial to the public without 
hindering the flexibility necessary for fair use.
    Although a changing world may indeed warrant new provisions or 
adjustments to the Act, these modifications should not disrupt the 
time-tested structure that carefully balances the copyright holder's 
rights with limitations that authorize rights and uses for the public.
Fair Use
    The fair use provisions of Sec. 107 permit the use of copyrighted 
works without permission or payment under certain circumstances. Fair 
use is a necessary means of 1) ensuring that copyright law does not 
obstruct the very learning that it should promote; 2) promoting the 
public interest; and 3) securing First Amendment rights. In fact, the 
very mission of American higher education--to expand and disseminate 
knowledge and understanding through education, research, and 
scholarship, and to foster public service--depends on the fair use 
right, notwithstanding the uncertainty that sometimes accompanies 
reliance on it.\3\ Accordingly, the higher education associations 
listed above strongly support the continued viability of flexible fair 
use as a bedrock principle of U.S. copyright law.
---------------------------------------------------------------------------
    \3\ As will be discussed below, other limitations on a copyright 
holder's rights that authorize educational uses in the copyright law--
such as Section 110(2) (codified as the TEACH Act)--are so narrow and 
unwieldy that they must be used in conjunction with fair use in order 
to be of any real practical value to educators and scholars.
---------------------------------------------------------------------------
    As described above, the power to enact copyright law was included 
in the Constitution to enrich society by stimulating creative 
expression and thereby advancing public knowledge. The Supreme Court 
has consistently emphasized that the primary goal of copyright is to 
serve the public interest, not the author's private interest.\4\ The 
Eleventh Circuit recently reaffirmed this fundamental principle in its 
decision in Cambridge University Press et al. v. Patton (otherwise 
known as ``the Georgia State'' case): ``The fair use doctrine also 
critically limits the scope of the monopoly granted to authors under 
the Copyright Act in order to promote the public benefit copyright is 
intended to achieve.'' \5\ Moreover, also in the Georgia State case, 
the Eleventh Circuit expressly recognized the specific importance and 
relevance of fair use in the education context, asserting that 
``Congress devoted extensive effort to ensure that fair use would allow 
for educational copying under the proper circumstances and was 
sufficiently determined to achieve this goal that it amended the text 
of the statute at the eleventh hour in order to expressly state it.'' 
\6\
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    \4\ ``The copyright law, like the patent statutes, makes reward to 
the owner a secondary consideration.'' United States v. Paramount 
Pictures, Inc., 334 U.S. 131 (1948); see also Sony Corp. of Am. v. 
University City Studios, Inc., 464 U.S. 417, 429 (1984) (``The monopoly 
privileges that Congress may authorize are neither unlimited nor 
primarily designed to provide a special benefit. Rather, the limited 
grant is a means by which an important public purpose may be 
achieved.'').
    \5\ Cambridge University Press v. Patton, at 18, No. 12-14676 (11th 
Cir., Oct. 17, 2014).
    \6\ Id. at 27.
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    In short, Section 107 statutorily shapes the boundaries of a 
copyright holder's rights as delineated in Section 106. It provides a 
pliable fair use standard that entails a case-specific analysis of 
whether particular uses of copyrighted works are outside the scope of 
what the copyright holder is entitled to prohibit.\7\ This multi-
factored approach ensures that public and private interests are 
appropriately balanced.
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    \7\ In determining whether the use made of a work in any particular 
case is a fair use the factors to be considered shall include--(1) the 
purpose and character of the use, including whether such use is of a 
commercial nature or is for nonprofit educational purposes; (2) the 
nature of the copyrighted work; (3) the amount and substantiality of 
the portion used in relation to the copyright work as a whole; and (4) 
the effect upon the potential market for or value of the copyrighted 
work.
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    Higher education institutions rely on the elasticity that fair use 
offers. The availability of fair use enables the effective use of 
copyrighted works when licenses are not reasonably available or when 
they are not required, even when available. Universities have found, 
for example, that several major educational publishers refuse to 
license content for library reserves, and that some copyright holders 
simply fail to respond to requests to use copyrighted works. Other 
rights holders are quick to demand royalties or licenses for sentence-
long quotations that are used in scholarly works. If fair use applies, 
the university may elect to use the work, but the perceived risk of an 
aggressive, misguided legal challenge nevertheless may cause the 
university to forego a legitimate use. Universities and their faculty--
who are, again, themselves authors and distributers--recognize the 
important copyright rights granted to authors, publishers, and other 
copyright holders. Fair use must be available, however, if the mission 
of higher education is to be realized.
    Colleges and universities utilize fair use to teach and research in 
innovative ways. Extensive use of online resources in education is 
perhaps the most salient development related to fair use since the 
enactment of the 1976 Act. Access to and dissemination of digital works 
for purposes of teaching, scholarship, and research are essential to 
the higher education process. Full-text searching has been called the 
most significant advance in search technology in the past five decades, 
for it allows scholars to perform searches in seconds that used to take 
days, months, or even years--if the search was possible at all.\8\ 
``Text mining'' is a powerful new form of statistical research made 
possible through application of fair use to digitized works.
---------------------------------------------------------------------------
    \8\ In Authors Guild, Inc. v. HathiTrust, 755 F. 3d 87 (2nd Cir. 
2014), the Second Circuit held that digitizing and enabling full-text 
search is a transformative use and a fair use. The court cited cases 
from many circuits to support this holding, thereby diminishing a 
previously perceived circuit split.
---------------------------------------------------------------------------
    Fair use, along with Section 121 (``Reproduction for blind or other 
people with disabilities''), also expands educational opportunities for 
people who have print disabilities. Digitization based on fair use is 
necessary to overcome disadvantages that students who have print 
disabilities historically have faced in research, scholarship, and 
instruction. For the first time, students and scholars who have 
disabilities are now able to access a universe of knowledge that, in 
its traditional form, they could not. Fair use also facilitates 
institutional compliance with federal nondiscrimination laws that 
require higher education institutions to provide reasonable 
accommodations to people who have disabilities. These statements find 
support in District Court Judge Baer's statement in Authors Guild v. 
HathiTrust, quoted approvingly by the Second Circuit, that he could not 
``imagine a definition of fair use that would not encompass the 
transformative uses made by the [universities' digitization project] 
and would require that I terminate this invaluable contribution to the 
progress of science and cultivation of the arts that at the same time 
effectuates the ideals espoused by the ADA.'' \9\
---------------------------------------------------------------------------
    \9\ Authors Guild, Inc. v. HathiTrust, 755 F. 3d 87 (2nd Cir. 
2014), quoting Authors Guild, Inc. v. HathiTrust, 902 F.Supp.2d 445, 
460-64 (S.D.N.Y. 2012).
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    Finally, fair use complements the provisions of Section 108 
(``Reproduction by libraries and archives'') to assure the preservation 
of information for future generations. Libraries and archives are only 
allowed to distribute digital copies made under this provision to a 
very limited extent, however, and consequently must rely on Section 108 
and Section 107 in concert in order to enable the accessibility of the 
digital copies to the public. Section 108(b) and 108(c) specifically 
authorize libraries and archives to make digital copies of unpublished 
works that are not otherwise commercially available, but such copies 
may only be made available to the public on the premises of the library 
or archive in possession of such copy. Section 108(e) allows libraries 
and archives to distribute such works in digital form, but only to 
patrons who specifically request such a copy; and it does not 
explicitly permit libraries and archives to provide access by 
displaying or performing the work, so it does not specifically allow 
for computer display or performance. And, although Section 108(h) is 
more expansive in affording nonprofit educational institutions (which 
would include museums and other collections within such institutions) 
the right to ``reproduce, distribute, display or perform'' digital 
copies of works, such rights only apply to works in their last twenty 
years of term of copyright. What is more, none of the foregoing 
sections apply to the reproduction or distribution of music, pictorial, 
graphic or sculptural works.
TEACH Act
    The TEACH Act, enacted in late 2002 and located in Section 110(2) 
of the Act, was intended to broaden educators' rights to perform and 
display works in the context of digital distance education. Section 
110(2) is strictly limited in scope--for example, requiring that 
audiovisual and dramatic musical works be shown only as clips--
particularly in comparison with the rights afforded to educators in 
face-to-face teaching settings in Section 110(1). The disparity between 
face-to-face and distance learning, however, has become far less 
relevant in the twelve years since the TEACH Act became law, as online 
education has rapidly flourished. Indeed, many educators find that the 
TEACH Act's complexity, combined with its array of limitations and 
conditions, render it essentially useless.
    Nonetheless, with the continued growth of online education, a 
workable TEACH Act would benefit students and faculty engaged in online 
education. The higher education associations therefore respectfully 
propose that Congress and the Copyright Office consider updates and 
revisions to Section 110(2) to make the TEACH Act consonant with 
current and anticipated pedagogical practices by enabling a fuller 
exploitation of ever-evolving digital technology for educational 
purposes.
Orphan Works
    The higher education community appreciates Congress's and the 
Copyright Office's ongoing attention to the challenges presented by 
orphan works--works protected by copyright, but whose copyright holders 
cannot be identified or located. Orphan works present a serious problem 
for institutions of higher education. Typically, these works are 
unavailable for sale, new or otherwise, and there is no reliable way--
even with a good faith, diligent effort--to secure permission to use 
them. This situation generates uncertainty and raises the specter of 
copyright liability for colleges and universities (particularly smaller 
institutions that cannot afford regular legal counsel). Consequently, 
university libraries, museums, archives, and other public-service 
entities holding orphan works are deterred from using these works--some 
of which may be very significant--for education, research, and broad 
public benefit.
    The higher education associations do not at this time endorse any 
present or past proposed regulatory or legislative mechanism to manage 
uses of orphan works. We do wish to caution, however, that any such 
orphan works program must effectively balance the interests of 
copyright holders whose works might be mistakenly identified as orphan 
works against the importance of enabling more vigorous uses of orphan 
works for the public. Further, any regulatory or legislative approach 
must avoid excessive regulatory burdens that make effective use of 
orphan works infeasible and must be sensitive to the requirements and 
capacities of universities and other non-profit institutions and permit 
appropriate tailoring for differing circumstances; for example, it 
should not specify procedures for educational and research uses that 
would be more appropriate for commercial entities.
The Digital Millennium Copyright Act (DMCA)
            Section 1201
    The higher education associations remain concerned that Section 
1201 is adversely affecting, and will continue to adversely affect, the 
ability of the educational community to access copyrighted works for 
the purpose of engaging in lawful, noninfringing uses of those works 
and/or using uncopyrighted materials integrated in those works. 
Congress made clear that the Section 1201 rulemaking process was meant 
to temper the restrictive effects of Section 1201 by ensuring that 
access controls would not be used to impede users' rights to use the 
copyrighted works in lawful, noninfringing ways.
    Yet contrary to Congressional intent, the DMCA's 1201 rulemaking 
provisions are not only unduly burdensome, but also require such 
unrealistically extreme evidence of harm that the procedure fails to 
provide any real relief to entities wishing to use such works in good 
faith. Furthermore, the cumulative effect of Section 1201's prohibition 
against circumvention of technological protection and the limited 
utility of the rulemaking in practice nullifies the fair use of any 
technologically protected copyrighted works: fair use enables use 
without permission, but the Section 1201 anti-circumvention provisions 
prevent access to a work whose use would otherwise be fair.
    We therefore respectfully urge the Copyright Office to recommend, 
and the Librarian to adopt, an expansion of ``classes of works'' 
falling within the scope of Section 1201 exempted works, in order to 
more closely and expediently effectuate the purpose of Section 1201 as 
expressed in the statute and legislative history. One such class of 
exempt works could be lawfully-acquired ``per se'' educational works, 
comprising, for instance, scientific and social science databases, 
academic monographs and treatises, law reports, and educational 
audiovisual works; a ``user and environment'' restriction could be 
placed on such a list to curtail any possible abuses. Another option 
might be to allow for presumptions in the triennial rulemaking process; 
that is, the fact that a class was previously designated could create a 
presumption that redesignation is appropriate.
Importance of Open Access Options
    The higher education associations wish to take this opportunity to 
reiterate our goal of creating lawful, noninfringing new opportunities 
for expanded public access to scholarly publications. We share this aim 
with President Barack Obama's Administration, which articulated 
corresponding public access policies in the Office of Science and 
Technology Policy's February 2013 Memorandum on Increasing Access to 
the Results of Federally Funded Scientific Research.\10\ Research 
universities have a mission to create and build upon new knowledge, 
broadly disseminate the results of their research, and preserve 
information for future generations.
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    \10\ See http://www.whitehouse.gov/sites/default/files/microsites/
ostp/ostp_public_access_memo_
2013.pdf.
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    Although peer-reviewed scientific and scholarly publications have 
served researchers and scholars well by making high-quality articles 
broadly available, the price of some journals has risen far beyond 
reasonable costs, placing a tremendous burden on research libraries and 
individual subscribers and restricting access to new knowledge. Digital 
technologies have enabled new ways to disseminate and preserve the 
results of research and scholarship. These technologies, coupled with 
enlightened public access policies such as those espoused by OSTP, can 
both reduce the cost and increase the dissemination of research and 
scholarship. It is imperative that publishers--commercial and non-
profit academic publishers alike--accommodate their copyright policies 
to enable the benefits of digital publishing to be realized fully. 
Novel approaches to rights protection, such as the Creative Commons 
licenses that allow authors themselves to determine which protections, 
if any, they want to apply to their works, creatively advance the 
fundamental goals of copyright. The higher education associations 
caution that any updates or revisions to the copyright law should not 
erode or allow others to impinge upon these alternative approaches to 
constituting and organizing intellectual property dynamics.
                                 ______
                                 
    The Constitutional purpose of copyright law is to promote learning 
and creative expression. The considered constellation of exclusive 
rights, balanced by fair use and carefully calibrated limitations on 
those rights, is integral to achieving this purpose. Without these 
checks and balances in the copyright law, educational, scholarship, and 
research opportunities would be lost, to the detriment of students, 
scholars, and researchers at America's higher education institutions 
and to the detriment of our nation, its economy, and the quality of 
life of our citizens. Higher education requires flexibility rather than 
too-narrow or overly-prescriptive exemptions for research, scholarship, 
and teaching. A loss of this flexibility would impede teaching, 
learning, research, and scholarship, the very ``Progress of Science'' 
the founders intended copyright to promote.
                               __________

    Mr. Coble. Thank you, Mr. Bernard. Appreciate your 
testimony.
    Mr. Adler?

 TESTIMONY OF ALLAN ROBERT ADLER, GENERAL COUNSEL, ASSOCIATION 
                     OF AMERICAN PUBLISHERS

    Mr. Adler. Thank you, Mr. Chairman. Thank you for the 
opportunity, along with Mr. Nadler and other Members of the 
Subcommittee, to testify today on behalf of AAP.
    For publishers and students, teachers, libraries, and 
academic institutions of higher education, copyright and 
digital technologies are enabling a new world of online and 
other digital learning solutions that help colleges help 
students to stay in school, become more fully engaged in 
learning, and improve their outcomes and graduation rates.
    College students with print disabilities also benefit from 
accessible digital content when they have accessible systems 
and devices to make it available.
    But confusion with the scope and application of fair use, 
based on the new jurisprudence discussed in an earlier hearing, 
can diminish investments in the new creative content and 
services that have been copyright's foundation for centuries.
    The hallmarks of this new jurisprudence include 
shortcutting the statutory fair use criteria with the bloated 
concept of transformativeness and subjective notions of what is 
in the public interest or offers significant public benefits. 
Disagreement about the propriety of this fair use expansion is 
playing out on thousands of campuses nationwide and featured in 
pending litigation by three academic publishers against Georgia 
State University.
    My written statement explains our key points, which briefly 
are, first, there is no general or per se exception for use of 
copyrighted material for educational purposes or by nonprofit 
educational institutions under the Copyright Act, and such uses 
are not presumptively fair use.
    The Supreme Court has confirmed that Congress resisted 
pressures from special interest groups to create presumptive 
categories of fair use, and it has held that the mere fact that 
a use is educational and not-for-profit does not insulate it 
from a finding of infringement.
    Court rulings in the pending Georgia State litigation show 
troubling hallmarks of this new jurisprudence for fair use 
analysis. That litigation addresses Georgia State's fair use 
claim for the university's switch from licensed paper course 
packs for curriculum reading to unlicensed digital versions of 
the same materials for the same purpose.
    The appellate court's analysis included these problems. 
First, copyright's principle of media neutrality means, as the 
concurring judge noted, that use of a copyright protected work 
that had previously required the payment of a permissions fee 
does not all of a sudden become fair use just because the same 
work is distributed via a hyperlink instead of a printing 
press. So if a paper course pack requires permission fees, the 
same content made available in a digital format also requires 
permission fees. But the majority opinion did not take this 
view, allowing paper and digital formats to be treated 
differently.
    Also, despite the admittedly nontransformative verbatim 
copying of the works at issue, and Georgia State's cost savings 
from not paying permission fees in a fiercely competitive 
college market, the majority opinion waived the nature and 
purpose of the use at issue in favor of fair use simply because 
it provides a broader public benefit furthering the education 
of students at a public university.
    Although Congress requires evaluation of harm to potential 
markets under Section 107, the majority opinion endorsed a 
market harm analysis that looks only at harm to existing 
markets, significantly undermining the incentives for 
publishers to invest in exploring entry into relevant new 
markets.
    Uncertainty over the Georgia State litigation outcome 
demonstrates a need for guidance at a national level to clarify 
fair use in education and other contexts. To our knowledge, no 
one, including AAP, is urging Congress to amend Section 107. 
But AAP urges Congress to direct the Copyright Office to 
initiate a study to help clarify fair use in a more 
participatory, transparent, and timely manner than is likely 
through legislation.
    Conclusion: Publishers will continue to invest in 
innovative digital content, technologies, and services if they 
have confidence in the exercise of their exclusive rights. But 
they won't have that confidence if the new jurisprudence gives 
nonprofit educational institutions and educational purposes a 
privileged, cost-free status not found in the law.
    Without clarification, not only publishers, but the entire 
ecosystem of higher education will miss opportunities in new 
digital learning solutions.
    On accessibility, until recently, consumer markets for 
accessible materials were nonexistent. A copyright exemption 
called the Chafee amendment largely shaped efforts to ensure 
and expand the availability of accessible copies. But now 
technology is enabling ordinary consumer markets to serve the 
extraordinary needs of accessibility. It is important to ensure 
the copyright exemptions safety net doesn't diminish publisher 
investments that are fueling such progress.
    Finally, AAP urges Congress and the administration to 
consider that progress as they review the efficacy of the 
Chafee amendment and the possible need to revise it for U.S. 
compliance with the WIPO Marrakesh Treaty upon Senate 
ratification.
    Thank you.
    [The prepared statement of Mr. Adler follows:]
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
                               __________
    Mr. Coble. Thank you, Mr. Adler.
    Mr. LaBarre?

   TESTIMONY OF SCOTT C. LaBARRE, STATE PRESIDENT, COLORADO 
               NATIONAL FEDERATION FOR THE BLIND

    Mr. LaBarre. Thank you, Mr. Chairman, and Members of the 
Committee. It is, indeed, an honor and pleasure to testify 
before you today.
    I am totally blind, Mr. Chairman. I have been so for over 
36 years. Consequently, your light system will not do a lot for 
me, so when I am on that thin ice, please rescue me and 
interrupt me whenever you need to.
    I come at this today from a slightly different perspective 
in two ways. Number one, I am not a copyright lawyer, although 
my participation as the National Federation of the Blind 
delegate to WIPO for the last several years has given me quite 
a schooling in copyright law. But my primary focus of practice 
is disability rights law, so that gives me one perspective.
    The other perspective is as the ultimate consumer of some 
of the very topics we are talking about here. Being blind since 
the age of 10, I have had to access information in a different 
way, and that journey has been a difficult one. It has been a 
difficult one because it is fair to say that I have faced a 
dearth of information.
    The vast majority of published works are not available in 
accessible formats. Consequently, a great deal needs to be done 
to make those formats accessible.
    I cannot tell you how many times it would take weeks or 
months to get the same book that my sighted colleagues were 
using in a way that I could meaningfully use it. Quite frankly, 
many times during my education, I never got a copy of a 
particular book or work.
    Now today's emerging technology, the revolution that we are 
all living, is something that we in the blindness community 
have, certainly, welcomed. But one of the main points I wish to 
make before this Committee today is that technology in and of 
itself is not the answer. And technology, as referenced by my 
good colleague Mr. Adler, is not opening up published works for 
the use of blind and low-vision Americans and other citizens of 
the world, because even though technology holds out a great 
deal of promise, if it is not accessible, if it is not usable 
by the systems that blind and low-vision people use, then the 
divide we face only grows wider. And despite the fact that a 
great deal of digital content has been in play for many, many 
years, we in the community still have very little access to 
that information.
    So we believe our copyright system promotes the progress of 
science and the useful arts, as the Constitution says. To that, 
we say this means the Constitution provides a right to access 
information. And anything we do with our copyright system 
should bolster and strengthen access to information.
    It is true that the Chafee amendment has provided some 
relief to those of us who are blind and low-vision. It has 
opened up more doors that had been previously closed. 
Nevertheless, we have access in the United States to only a few 
hundred thousand works in accessible formats, as compared to 
the millions of works that are accessible to everybody else who 
happens not to be blind or low-vision.
    So the copyright system needs to change the paradigm. We 
need to think about it in a little bit different way.
    Traditionally, what we have believed is that the approach 
would be one of reasonable accommodation. This is an after-the-
fact fix to something that is inaccessible. Reasonable 
accommodation being, for example, putting a book into Braille, 
hardcopy Braille, audio, or whatever.
    But we in this technical revolution have the opportunity to 
make every single published work accessible from the beginning. 
That is the promise that technology holds, and that is what the 
copyright system needs to support.
    Therefore, we are bringing to Congress, as you know, 
Congressman Coble, because you are a cosponsor, the new TEACH 
Act--Technology, Equality and Accessibility in College and 
Higher Education. This law calls for guidelines to be created 
so that colleges and universities offer their various 
instructional materials and other educational aspects in an 
accessible way.
    Mr. Marino [presiding]. Mr. LaBarre, this is Tom Marino. I 
am the Vice Chair. Mr. Coble stepped out, so I am sitting in 
the Chair.
    Could you please wrap up here shortly?
    Mr. LaBarre. Certainly.
    Mr. Marino. Thank you.
    Mr. LaBarre. We, certainly, ask this Congress to support 
H.R. 3505, the TEACH Act. And we also believe that until we 
have a day when all works are born accessible, we do need 
exceptions and limitations to copyright. We strongly urge the 
United States Senate and, if it comes as an executive 
agreement, this House to ratify and adopt the Marrakesh Treaty.
    Thank you.
    [The prepared statement of Mr. LaBarre follows:]
Prepared Statement of Scott C. LaBarre, President, National Federation 
  of the Blind of Colorado; President, National Association of Blind 
 Lawyers; Counsel for National Federation of the Blind; and Attorney, 
                          LaBarre Law Offices
                              introduction
    Good afternoon Chairman Goodlatte, distinguished members of the 
committee and other witnesses. My name is Scott LaBarre, and I am here 
on behalf of the National Federation of the Blind (NFB). The NFB is the 
oldest and largest nationwide organization of blind people with over 
fifty-thousand members in fifty-two affiliates across the country; I am 
President of the National Federation of the Blind of Colorado, 
President of the National Association of Blind Lawyers, and legal 
counsel for the Federation. I am also here today as an attorney that 
specializes in disability rights law, the former Chair of the American 
Bar Association's Commission on Disability Rights, and a blind parent.
    I appreciate the opportunity to speak about copyright issues that 
affect blind students in the education space. It is tremendously 
important for me to be here today because I want to make sure that 
nothing stands between blind students and their dreams. I know 
firsthand the barriers blind students face and even though I graduated 
law school in 1993, blind students today face essentially the same 
issues and it is high time that we take strong and bold action to 
eliminate barriers that are largely artificial and unnecessary. It is 
equally important for me to be here because it shows that Chairman 
Goodlatte and the committee are concerned about students with 
disabilities. We are grateful for your initiative in hosting this 
hearing and your willingness to collect our feedback.
    I have been a leader in the organized blind movement for nearly 
thirty years, and I have never been more encouraged than I am right 
now. The possibilities of technology offer countless opportunities to 
improve access for blind students and make millions of texts available 
to blind people across the globe. But, I also have never been more 
worried than I am right now, as those possibilities are still pending. 
If they are missed, a new brand of discrimination will roll out that is 
more damaging than the print world ever was. My testimony will address 
policy recommendations for how Congress can proactively address this 
quandary.
    I will discuss 1) The paradigm shift from the accommodations model 
to a focus on mainstream access; 2) The HathiTrust case and potential 
clarifications in copyright law to promote the use of accessible 
digital formats; 3) Changes to copyright law that compliment solutions 
for accessible instructional material in the TEACH Act; and 4) the 
Marrakesh Treaty to Facilitate Access to Published Works for Persons 
Who Are Blind, Visually Impaired, or Otherwise Print Disabled.
                      a focus on mainstream access
Issue
    The transformation of print text into digital formats has 
revolutionized the way we access the written word, and this 
transformation holds particularly profound promise for the blind. Blind 
students have long been relegated to an ad-hoc, after-the-fact 
accommodations model in higher education where titles, academic 
journals, and other educational resources are only made available after 
a time consuming and expensive conversion of those materials into 
Braille, large print or audio formats. This method is adequate in a 
print world, but the explosion of a new, digital world opens the door 
for blind students to bypass this model and have mainstream, instant 
access to all of the same content as their sighted peers. The 
opportunity to expand the circle of participation that stems from this 
explosion of information will only be harnessed if the conversion to 
digital text is promoted by lawmakers, and if the digitized copies are 
available in an accessible format.
    Fortunately, there is a framework for success in these objectives. 
Copyright law promotes converting titles into accessible formats with 
the Chaffee Amendment and fair use provisions, and federal district and 
circuit courts have upheld the application of these exemptions to the 
creation of accessible digital formats for the blind in the landmark 
HathiTrust case. A few small clarifications from Congress could 
reinforce this decision and reduce future disputes. Similarly, the 
Americans with Disabilities Act requires institutions of higher 
education and libraries to provide equal access for students and 
patrons with disabilities, a task made significantly easier when 
mainstream content is available in accessible digital formats. 
Lawmakers could incentivize schools to move away from the 
accommodations model by offering technical criteria for accessible 
instructional material, thereby reducing litigation and stimulating the 
market. The upcoming Congress is likely to consider ratification of a 
``Books Across Borders'' treaty, offering lawmakers an opportunity to 
encourage other countries to adopt policies similar to ours and allow 
blind people access to millions of titles in the international book 
market.
Policy Recommendation
    The framework is there, but we will not achieve success without the 
right perspective. Often, when lawmakers are approached about bills 
that promote accessibility, the reaction seems to be that legislation 
is unnecessary because the entities in question are successfully 
deploying the accommodations model. Braille, large print and other 
specialized formats are indeed important and should not be devalued, 
but this model must be used in concert with a significant, purposeful 
drive towards mainstream access. Or, lawmakers assume that if entities 
are opposed to mainstream access that it must be inherently harmful to 
those entities. In reality, mainstream access benefits everyone. Data 
and common sense tells us that if we can remove the need to provide 
personal, specialized treatment to an entire population of users, we 
can reduce costs and expand the circle of participation simultaneously.
    For people with disabilities that demand equality, a government 
that desires policies that systemically benefit everyone and a society 
that rejects ``separate-but-equal'' practices, mainstream access must 
be a fundamental goal. This approach is the undercurrent of my 
testimony and should be considered when examining or implementing the 
policy recommendations I make today.
             hathitrust and clarifications to copyright law
Issue
    The Authors Guild has defiantly opposed efforts to make digital 
books accessible to the blind, forcing advocates to overcome this 
resistance through repeated complaints to federal agencies and 
litigation in federal courts.
    The landmark decision in The Authors Guild, Inc., et. al., v. 
HathiTrust, et. al. case by the United States District Court for the 
Southern District of New York, 902 F. Supp.2d 445 (S.D.N.Y. 2012) and 
affirmed in important respects by the United States Court of Appeals 
for the Second Circuit, 755 F.3d 87 (2d Cir.2014), supports the view 
that copyright law does indeed provide the framework to promote the 
conversion of print materials to accessible digital texts. The 
HathiTrust is a repository of accessible digitized content administered 
by the University of Michigan and Indiana University, a repository that 
allows blind students at the thirteen participating universities to 
access the millions of volumes of texts included in the repository. The 
Chafee Amendment allows for copies of texts to be made by an authorized 
entity that has a ``primary mission to provide specialized services 
relating to adaptive reading or information access needs.'' In the 
HathiTrust case, United States District Court Judge Baer found that the 
digitization of the millions of texts by the university libraries was 
not a violation of copyright law because ``The ADA requires that 
libraries of educational institutions have a primary mission to 
reproduce and distribute their collections to print-disabled 
individuals, making each library a potential `authorized entity' under 
the Chafee Amendment.''
    The Second Circuit Court upheld this decision, and found that the 
copying done in the HathiTrust was also acceptable under the fair use 
provision. Fair use considers factors like whether the market is 
meeting necessary services on its own, the purpose and character of the 
use, including whether the use is for non-profit educational purposes, 
the nature of the copyrighted work, the effect of the use upon the 
potential market for or value of the copyrighted work, among other 
facts. What is unique about the application of fair use doctrine in the 
HathiTrust case is that, while the accessible formats are explicitly 
only available to blind and low vision students, the digitization as a 
whole was done in a mainstream fashion. The process was done to benefit 
all students, but with consideration for how to expand that benefit 
beyond the mainstream users so the blind students have the same level 
of access. The appellate court's ruling should encourage future 
universities to digitize works in a way that ultimately perpetuates a 
mainstream model of access.
Policy Recommendation
    Regardless of whether the HathiTrust is characterized as an example 
of Chafee exemption or the fair use doctrine, it is a solid 
illustration of the framework provided by copyright law to promote and 
encourage the production of accessible digital books, particularly in a 
mainstream fashion. It is also a solid illustration of the direction 
Congress should take if it wants to reinforce this encouragement. Given 
the Author's Guilds' persistent opposition to making digital books 
accessible to the blind, some clarifications could reduce the amount of 
future disputes being similarly worked out by the courts. These 
clarifications could include an explicit statement that all educational 
institutions and libraries are ``authorized entities'' under Chaffee, 
or an added consideration for digitized works under fair use and 
Chafee.
          accessible instructional materials and the teach act
Issue
    One of the biggest issue facing students with disabilities and 
institutions of higher education is the lack of accessible 
instructional material. Although digitized libraries like in the 
HathiTrust case might improve access to digital books, instructional 
material now includes a broader range of content. In 2011, a 
congressionally authorized Commission called the Advisory Committee on 
Accessible Instructional Material by Students with Disabilities in 
Postsecondary Education (known as the AIM Commission) finished its 
examination of the status of accessible instructional material in 
postsecondary education and issued a report. The report found that ``in 
addition to accessibility challenges posed by various types of digital 
content, students with disabilities often encounter barriers when 
attempting to use course management or courseware delivery systems, 
online course registration utilities, basic productivity software and 
library reference databases. While not all of these commonly installed 
software programs are inaccessible, many of them pay only marginal 
attention to accessibility.''
    Data from the AIM Commission report and another study conducted by 
Association of Research Libraries' joint task force on services to 
patrons with print disabilities found that lack of access to 
instructional material was a persistent problem for students with print 
disabilities, and that the problem went beyond just delayed access to 
books. One study found that students with disabilities ``have 
experienced a variety of challenges, including blocked access to 
educational opportunities and matriculation failure resulting from 
inaccessible learning materials and/or their delivery systems.'' Blind 
students should not be allowed to drop out of college because they were 
denied access to critical course material. How could any student 
succeed without access to the materials? What's worse is the fact that 
these types of technologies are the very technologies that should have 
ensured blind students' full participation.
    It does not have to be this way. Titles II and III of the Americans 
with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act 
require schools to provide equal access for students with disabilities. 
In 2010, the Departments of Justice and Education issued joint guidance 
to all institutions of higher education clarifying that the mandates 
applied to the use of technology. Despite explicit warning not to use 
inaccessible technology, the problem has persisted. In the years since 
this guidance was issued, more than a dozen colleges and universities 
have faced enforcement action or entered into settlement agreements 
over this matter.
    A recurring theme in the data and settlements agreement is a 
profound lack of knowledge in colleges and universities about what 
accessibility looks like. Unlike physical access for facilities, the 
aforementioned mandates lack any specifics or technical criteria to 
facilitate their success. Institutions of higher education have no way 
of knowing whether a learning management system or web content is 
accessible, and have no direct path to compliance with the law. Without 
technical criteria that makes it easier to identify accessibility, 
schools will never have a streamlined demand to stimulate the market 
and a viable digital marketplace will never emerge. A market that does 
not include accessible materials will inevitably harm a higher 
education community that is attempting to deploy that technology and 
will surely harm blind students. Schools will continue resorting to the 
antiquated accommodations model, leaving blind students behind and 
increasing liability for lawsuits. This cycle must be stopped.
Policy Recommendation
    One goal of copyright law is to make clear when copying is 
acceptable and when it is not, and the scenarios that are acceptable 
were designed to promote the copying of texts in order to make them 
accessible to people who are blind or have low vision. Similar goals 
need to be incorporated into non-discrimination mandates as they apply 
to institutions of higher education and their use of accessible 
instructional material. The Technology, Education and Accessibility in 
College and Higher Education Act (H.R. 3505/S. 2060) aims for these 
goals by authorizing the creation of voluntary accessibility guidelines 
for instructional material used in postsecondary education, and then 
incentivizing their use by offering a safe harbor from litigation to 
any school that only uses technology that conforms to those guidelines. 
The more schools that conform to the guidelines, the more the market 
will include accessible material.
    The TEACH Act has bipartisan support in both chambers, support from 
the publishing industry, and endorsements from over twenty disability 
advocacy groups. However, revisions to copyright law can complement the 
TEACH Act and efforts to develop clarifying accessibility guidelines. 
The first recommendation of the AIM Commission report was the creation 
of accessibility guidelines, and the second was ``Congress should 
review the scope, effectiveness and function of the Copyright Act as 
amended (Section 121, the Chafee Amendment) to determine whether it or 
any of its key component elements, as well as its implementation 
through applicable regulations, need to be updated to adequately 
address the needs of individuals with print disabilities, including 
those enrolled in postsecondary education.''
    This recommendation is rooted in the fact that technology is 
constantly evolving with types of material regularly converging into 
new, hybrid formats. A textbook and an assessment were once two 
different documents, but now digital textbooks often include 
assessments. A website and a group discussion were two different 
forums, but now learning management software brings web content and 
group discussions into one digital space. Similarly, the scope of 
students with print disabilities is evolving. The amount of students 
with learning disabilities is increasing, and inaccessible 
instructional material might create barriers for students that were 
once considered ``mainstream'' in the print-world, but now have 
limitations caused by the inaccessibility of the digital world. 
Copyright law must be updated to reflect the agnostic nature of 
technology and to compliment the goals of the accessibility guidelines 
created by the TEACH Act.
                            marrakesh treaty
Issue
    In 2013, I was the NFB's delegate to the Diplomatic Conference of 
the World Intellectual Property Organization, which took place in 
Marrakesh, Morocco. The conference concluded successfully with the 
adoption of the Marrakesh Treaty to Facilitate Access to Published 
Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print 
Disabled. The day the conference concluded, fifty-one countries signed 
the treaty, and the United States joined the rank in October of last 
year.
    Unlike in the United States, over two-thirds of the world's 
countries do not have laws that allow copying of copyrighted works into 
accessible formats. In these countries, national law would consider 
copying a text into an accessible format (like Braille) without 
authorization of the rights holder a violation of copyright. Not only 
does this discourage digitization of works so that blind and other 
print disabled people can access the same titles as mainstream readers, 
this erects barriers to trade because the export or import of 
accessible format copies could trigger infringement liability. It is 
critical that these limitations be removed. Given the high cost of 
producing accessible format copies, the ability to share accessible 
format copies across borders would be particularly beneficial to the 
blind in all countries, including the United States. The treaty enables 
countries to import and export accessible copies of a given text rather 
than having to create their own, and enable those in other countries to 
acquire U.S. editions that are not now available in their home 
countries. This would also have a highly tangible benefit for the blind 
of the U.S. because we currently do not have access to accessible 
formats produced in other countries. This is particularly important in 
attempting to access accessible books in foreign languages. 
Additionally, access to English language books can be greatly improved 
because some sixty countries officially speak English and produce 
accessible formats that we cannot currently access.
    The Marrakesh Treaty requires contracting parties to adopt 
copyright exemptions that are modeled after U.S. copyright law, 
including:1) the making of accessible format copies; 2) the domestic 
distribution of accessible format copies; 3) the export of accessible 
format copies; and 4) the import of accessible format copies.
Policy Recommendations
    The State Department is currently developing the ratification 
package for this treaty, and I hope the package will be completed in 
time for the Senate to consider ratification during the next Congress. 
Because the Marrakesh treaty calls for contracting parties to adopt 
copyright exemptions that have already been adopted by the U.S., 
ratification should not require any amendments to copyright law. We 
urge our esteemed representatives in the House that are familiar with 
copyright law and invested in equality for students with disabilities 
to urge your Senate colleagues to give this treaty sincere 
consideration. Because the Obama Administration has not finalized its 
work on the Marrakesh Treaty, it is possible that it could come to this 
House in the form of an executive agreement. I urge the sound minds in 
this room that initiated this important hearing to review the Marrakesh 
treaty thoughtfully, recognize the benign effect it will have on U.S. 
law, and endorse the overwhelmingly positive effect it will have on 
blind people here and across the globe.
    Thank you for your time and consideration, and I look forward to 
taking your questions.
                               __________

    Mr. Marino. Thank you, sir.
    Mr. Kaufman?

        TESTIMONY OF ROY S. KAUFMAN, MANAGING DIRECTOR, 
            NEW VENTURES, COPYRIGHT CLEARANCE CENTER

    Mr. Kaufman. Mr. Marino and Members of the Subcommittee, 
thank you for the opportunity to appear today before you to 
discuss how voluntary market-based solutions can efficiently 
meet the needs of stakeholders in the educational environment.
    My name is Roy Kaufman, and I am Managing Director of New 
Ventures at Copyright Clearance Center, a not-for-profit 
licensing hub founded by authors, publishers, and content users 
in response to issues that arose in connection with the 1976 
Copyright Act.
    CCC has been active since 1978, enabling efficient, lawful 
reuse of copyrighted materials. We represent more than 600 
million rights primarily for text works under agreements with 
more than 12,000 rightsholders. These rightsholders range from 
individual authors to local and national newspapers, to 
universities, commercial and noncommercial publishers. In many 
cases, these works are created by academics and for academics.
    Our users and rightsholders include residents of every U.S. 
State. We license more than 1,200 domestic academic 
institutions and more than 35,000 businesses globally. We are a 
net importer into the United States of revenues for reuse of 
published materials.
    Our mission is to make copyright work for everyone. We 
develop products and services that smooth market friction and 
are voluntary, opt-in, market-driven, and nonexclusive.
    I offer two examples in which market-based licensing 
solutions have helped bridge the gap between users and 
creators.
    The first involves interlibrary loan. Interlibrary loan, or 
ILL in this context, means the practice of copying materials in 
possession of one library for delivery to another. It operates 
at the intersection of two limitations on the exclusive right 
of copyright holders, Sections 107 and 108.
    However, even with these legal accommodations, ILL has 
proven to have serious limitations. Thus, 5 years ago, after 
completion of a pilot with the California State University 
system, the State University of New York, and Scientific 
Publishers, we launched a product that speeds delivery of 
digital articles, operates 24/7, 365 days, and is usually less 
expensive for the library than traditional ILL, all while 
providing compensation to the publishers.
    We now have millions of articles available, and nearly 300 
academic libraries have adopted it, with new institutions 
coming on board each week.
    This is just one example of how users and publishers 
working together have been able to develop a better, faster, 
more cost-effective solution.
    I now turn to electronic use of text-based works in the 
classroom. It has long been established that when print 
photocopies of copyrighted works are made for student use, 
copyright fees must generally be paid. In the late 1990's, 
classroom content began to migrate from print into online and 
digital formats. While this migration changed the manner in 
which students accessed content, academic institutions are 
continuing to use content to educate students through verbatim 
copying.
    Throughout this shift, CCC has worked with academic 
libraries to help make academic digital copyright clearance 
more efficient. First, we offer transactional licenses for 
electronic works on a per-work basis. Later, we worked with 
publishers and more than 50 institutions of higher education to 
create a repertory or blanket-style license to cover print and 
electronic reuse by faculty, staff, students, and, indeed, 
distance learners, as has come up earlier.
    As of today, 150 academic institutions have purchased this 
repertory license and more than 1,000 others have continued to 
clear print and digital uses on an as-needed, transactional 
basis.
    However, one result of the migration to digital copying has 
been that some academic institutions are increasingly using it 
as an excuse to cease paying copyright holders. The GSU case, 
which was mentioned by Chairman Coble before, examines this.
    That case is still pending in the courts. What is most 
relevant to my testimony is that at the time of the lawsuit, 
when GSU had 6,700 works in its electronic course system, it 
could have purchased a repertory license from CCC for an annual 
license fee of $3.75 a student. This license would have granted 
GSU friction-free permission to use millions of works in 
electronic reserves and in print and electronic course packs.
    We know the license is appropriate for academic 
institutions such as GSU. We built it with them for them.
    Fair use line-drawing is inevitably complex and uncertain. 
Making copyright work is not. Copyright works when creators and 
users, taking reasonable and differing conceptions of fair use 
boundaries into account, get together and build solutions.
    With this in mind, CCC has created multiple, easy-to-use, 
reasonably priced license mechanisms.
    We urge Congress, as it considers these issues, to 
recognize the potential for voluntary, opt-in, market-based 
solutions that further all constitutional purposes of 
copyright.
    Thank you again for the opportunity to testify today. CCC 
looks forward to working with the Subcommittee as it continues 
to explore these important issues.
    [The prepared statement of Mr. Kaufman follows:]
       Prepared Statement of Roy S. Kaufman, Managing Director, 
             New Ventures, Copyright Clearance Center, Inc.
    Chairman Coble, Ranking Member Nadler, and Members of the 
Subcommittee:
    Thank you for the opportunity to appear before you today to discuss 
copyright issues in education, and specifically about how voluntary 
market-based solutions can efficiently meet the needs of users, 
creators and other copyright holders. My name is Roy Kaufman, and I am 
Managing Director of New Ventures at Copyright Clearance Center, Inc. 
(CCC). CCC is a Massachusetts-based, not-for-profit licensing hub and 
rights aggregator, which was founded by authors, publishers and content 
users in response to issues that arose in the legislative process 
leading to the Copyright Act of 1976.\1\
---------------------------------------------------------------------------
    \1\ See, e.g., S. Rep. No. 94-473, 94th Cong., 1st Sess., at 70-71 
(1975).
---------------------------------------------------------------------------
                              introduction
    CCC has been a centralized licensing solutions provider since the 
effective date of the current Copyright Act, January 1, 1978, enabling 
efficient, lawful access to copyrighted materials. We represent more 
than 600,000,000 rights, primarily text works, under agreements with 
more than 12,000 rightsholders. These rightsholders range from 
individual authors and author estates, to literary agents, local 
newspapers, media companies, blogs, society publishers, universities, 
and large and small publishers of all kinds of text-based materials, 
many of whom in turn represent the interests of an even larger body of 
creators and employees. Additionally, we broker the rights of 
counterpart collective organizations from more than 30 other countries, 
who also represent millions of creators and publishers. We license 
reuse (such as emailing, online posting and photocopying) of 
copyrighted works to more than 1,200 US domestic academic institutions, 
and to more than 35,000 business organizations in the US and 180 other 
countries, covering millions of students, faculty, researchers and 
staff, as well as knowledge workers, managers and other employees.
    CCC's mission is to ``make copyright work for everyone.'' We 
accomplish this mission largely by developing products and services 
that smooth the inevitable market friction over the differences between 
compensable and non-compensable uses of copyrighted works, especially 
written works. All of our solutions are voluntary, opt-in, market-
driven, and non-exclusive.
    CCC, directly and through its partners, brings rights to use the 
copyrighted works of US creators to markets around the world, and is a 
net ``importer'' of revenues into the US for reuse of published 
materials. Our users and rightsholders include residents of every US 
state, and in the last ten years, we have distributed more than $1.4 
billion in royalties. For each of the past five years, we have been 
named by eContent Magazine to its list of 100 companies that ``matter 
most in the digital content industry.''
    We were formed to enable efficiency in copyright clearance for 
corporations, government organizations, and academic institutions, so 
as to avoid the need for those users to contact multiple publishers/
authors to make payments for photocopies. Today, as in 1978, we provide 
for efficient ``micro-licensing'' under the supervision of a Board of 
Directors comprised of users, publishers and authors. Last year alone, 
we issued 750,000 individual licenses for the reuse of content, and 
through repertory (or ``blanket'') licensing, authorized many millions 
more digital and paper reuses.
    While CCC represents rights of many types of creators into many 
different markets, CCC has been especially successful in offering 
products and services on behalf of rightsholders who create text-based 
works for educational, scientific and research markets. These works 
include journals and academic books created by professors, scientists, 
learned societies, commercial publishers, and university presses. In 
many cases, these works are created by academics, for academics. As 
such, we are uniquely aware from a market perspective of the tensions 
between the Constitutional purpose of copyright on the one hand 
(expressed in Article I as ``promot[ion] of Science . . . , by securing 
for limited Times to Authors . . . the exclusive Right to their 
respective Writings. . . .''), and the language of Sections 107 and 108 
of the Copyright Act. We are also aware of the power of market-based 
solutions to further all of the purposes of copyright and reconcile 
these tensions.
    Our experience shows that voluntary market-based licensing 
solutions can go a long way towards solving many of the difficult 
challenges facing stakeholders with respect to copyright and 
educational reuse. In this regard, we offer two examples of ways in 
which market-based licensing solutions have accommodated the needs of 
users and creators, and bridged the gap between copyright exceptions 
and appropriate compensation for works of creative expression.
Example 1: Interlibrary Loan, Fair Use, Sections 107 & 108 and 
        Developing a More Efficient Marketplace
    First is an example of how licensing can provide a superior, more 
efficient and more cost-effective service to academic libraries with 
respect to the sharing of documents.
    Interlibrary loan (``ILL'') operates at the intersection of two 
limitations on the exclusive rights of copyright owners: Section 107 
(Fair Use) and Section 108 (Reproduction by Libraries and Archives). 
Interlibrary loan is an old phrase that has been repurposed for a new 
use: in this context, it means not the delivery of physical objects 
owned by one academic library and shipped to another library, but the 
practice of copying (digitally or on paper) individual articles, 
chapters and excerpts from textual works in the possession of one 
library and then delivering the copies for use in other, unaffiliated 
libraries.\2\ Belying its name, this form of interlibrary ``loan'' does 
not anticipate that the borrower will return the copy.
---------------------------------------------------------------------------
    \2\ The phrase interlibrary loan technically encompasses two very 
different types of activities; the lending of physical objects such as 
books for eventual return, and the delivery of copied materials. CCC's 
testimony only concerns the latter.
---------------------------------------------------------------------------
    There are two ways in which libraries will typically engage in this 
form of interlibrary loan without the payment of a copyright fee. 
First, under Section 108 of the 1976 Copyright Act, ``lending 
libraries'' are allowed to deliver articles at the request of 
``borrowing libraries'' without permission of the copyright holder, so 
long as the articles do not substitute for a ``subscription to or 
purchase of such work.'' The Congressionally-formed National Commission 
on New Technological Uses (CONTU) developed guidelines that have come 
to be known as the ``Rule of 5'' to establish what constitutes a use 
that falls short of substituting for a ``subscription to or purchase 
of'' a journal.\3\
---------------------------------------------------------------------------
    \3\ See Final Report of the National Commission on New 
Technological Uses of Copyrighted Works (``CONTU'') (1978). At the time 
of CONTU, unlike now, articles were typically sold in bundles known as 
subscriptions, and were not sold individually online, as there was no 
online. Today, most articles (as well as most journal subscriptions) 
are purchased in online formats and it is increasingly common for 
librarians to purchase individual articles in lieu of, or in addition 
to, subscribing to journals. This is especially true for corporate 
libraries, but also occurs with academic libraries.
---------------------------------------------------------------------------
    Under the ``Rule of 5,'' the borrowing library tracks the copies it 
receives from other libraries of a given journal's articles and pays no 
copyright fee for borrowing up to five articles from the past five 
years of a journal. Libraries that determine for themselves that they 
have exceeded this limit typically pay a copyright fee through the 
publisher, through a document delivery provider, or through CCC. 
Second, some libraries take the position that a number of copies may be 
borrowed pursuant to fair use, usually for articles published more than 
five years ago (and therefore beyond the scope of the ``Rule of 5''). 
Using these exceptions, virtually all libraries engage robustly in this 
form of ILL, as borrowers, lenders, or both. However, as has been 
documented by the library community, even with these legal 
accommodations, ILL has proven to have serious limitations.\4\
---------------------------------------------------------------------------
    \4\ For example, an Association of Research Libraries report 
concluded in 1992 that ``[m]any patrons, dissatisfied with the 
limitations of our interlibrary loan services, avoid using them if 
possible.'' http://www.arl.org/storage/documents/publications/
maximizing-access-dec94.pdf
---------------------------------------------------------------------------
    In 2009, representatives from the California State University 
System approached CCC to assist it in relation to its ILL practices. 
Although Cal State was spending in excess of $1 million annually to 
borrow articles though ILL, typical ILL deliveries took 5-10 days. As a 
result, by the time the materials arrived, the requestor no longer 
needed them in more than 50% of the cases, effectively doubling the 
costs for ``useful'' ILL.\5\ Cal State approached CCC to see if we 
could fix the problem for the benefit of the university, its libraries 
and library patrons. Our response was that we thought we could and 
that, to do so, we needed to create a market-based solution with the 
cooperation of publishers of the materials most in demand at Cal 
State's ILL desks.
---------------------------------------------------------------------------
    \5\ Although copyright fees are not paid for ILL, processing 
requests can be costly for borrowers and lenders. See, e.g., website of 
the University of California, Santa Cruz (``Though we provide ILL 
services to eligible UCSC patrons at no charge, the cost of an 
interlibrary loan transaction can range from about $20 to $50.''). 
http://library.ucsc.edu/services/borrowing/interlibrary-loan-faq (last 
visited on November 16, 2014)
---------------------------------------------------------------------------
    As a result of this outreach, CCC developed a pilot program with 
multiple libraries at Cal State, the State University of New York, and 
scientific publishers. The publishers set article prices designed to 
meet this new market, and CCC developed a technology solution that 
would enable an academic library to get a copy of an article within 5-
10 minutes, rather than 5-10 days. The success of this pilot led to a 
service we call ``Get It Now.'' Get It Now also enables the article to 
be sent in a digital format directly to the requesting student, 
researcher or faculty member. Get It Now does not supplant ILL or limit 
any user's rights under Sections 107 or 108, but instead complements 
them. There are times when a library may choose to wait the 5-10 days 
it may take to obtain a journal article via ILL borrowing. But, if the 
patron needs it in 5 or 10 minutes, Get It Now can provide a cost-
effective, high-quality PDF of the article directly from the publisher, 
24 hours a day, 7 days a week. And, in many cases, the total all-in 
cost is lower than that of ILL ``borrowing.''
    CCC now has millions of articles available within this service from 
many of the world's leading commercial and non-commercial publishers, 
and nearly 300 academic libraries have adopted the Get It Now service, 
with new institutions coming on board each week. This is just one 
example of how users and publishers, working together, have been able 
to improve educational outcomes, improve use of materials, ease 
administrative burdens on institutions and still reward creators and 
publishers for the reuse of their materials though collaboration. 
Better, faster, more cost-effective.
Example 2: Electronic Use in the Classroom, and Easing Compliance in 
        the Digital Migration
    As mentioned above, CCC was created at the suggestion of Congress 
in order to help clear photocopy permissions. As the result of several 
important judicial precedents, it is well established that when print 
photocopies of copyrighted works are made for student use, copyright 
fees must generally be paid.\6\ Historically, these print copies were 
bound and sold to students in what are known as ``course packs.'' The 
courts cited in footnote 5 recognized that depriving copyright owners 
of revenues for reuse of materials in the markets for which the 
materials were created (academic and classroom use) would have a severe 
impact upon the ability of such publishers to continue to publish new 
works, to the detriment of the entire academic ecosystem.
---------------------------------------------------------------------------
    \6\ See, e.g., Princeton University Press v. Michigan Document 
Services, Inc., 99 F.3d 1381 (6th Cir. 1996) (en banc); Basic Books, 
Inc. v. Kinko's Graphics Corp., 758 F. Supp. 1522 (1991); see also 
American Geophysical Union v. Texaco Inc., 60 F.3d 913 (2d Cir. 1994) 
(photocopying in a commercial setting). Obviously this rule has its own 
exceptions, including but not limited to matters such as reuse of 
public domain works.
---------------------------------------------------------------------------
    In the late 1990s copies of individual items of content as well as 
course packs began to migrate online. Moreover, unlike printed course 
packs which were generally prepared by on- and off-campus commercial 
copying operations, these online course packs were increasingly 
prepared for uploading and then posted by faculty or specific library 
staff. These digital course packs, electronic reserves and other online 
uses have changed how the students access content, but the content that 
they use (materials published largely for academic use), and the manner 
in which it is used (reading, studying, marking paper copies) have 
stayed largely the same. In short, this new generation of copying is 
consumed by the same market--academic institutions--and serves the same 
purpose; educating students.
    In the earliest days of this shift, CCC was approached by academic 
libraries and asked to help make digital academic copyright clearance 
more efficient, as we had already done for printed course packs and for 
print and electronic reuse by businesses. We initially responded to 
this library demand by offering licenses for electronic reserves on a 
per-work or ``transactional'' basis. Then, as a result of more library 
requests, CCC--working with publishers and representatives from more 
than 50 institutions of higher education--created a repertory 
(``blanket-style'') license to cover print and electronic reuse by 
students, faculty, staff, distance learners, and other affiliates of 
the institution. As electronic use has become more widespread and 
interchangeable with print, over 150 academic institutions have 
purchased this repertory license from CCC (and have paid license fees 
that CCC distributes to the rightsholders), and many more have 
continued to clear print and digital uses on an as-needed transactional 
basis.
    However, one increasingly common and disturbing result of this 
migration to digital copying has been that some academic institutions, 
who routinely as a matter of business practice and copyright law 
cleared permission for reuses in print format, are no longer doing so 
for electronic reproductions. An ongoing litigation examines this 
phenomenon, pitting the concerns of academic publishers on the one hand 
against strongly argued positions of fair use.
    In that case, Georgia State University (GSU), with more than 30,000 
students, 100 fields of study, and 250 degree programs offered through 
eight colleges, abandoned its prior policy of seeking permission for 
reuse of copyrighted material for course packs and stopped paying 
publishers altogether for academic copying of academic materials in 
electronic formats, even for multiple chapters used over multiple 
years. The GSU case,\7\ which was brought by three academic publishers, 
including two university presses, is still pending in the courts.
---------------------------------------------------------------------------
    \7\ Cambridge University Press v. Patton, Nos. 12-14676 and 12-
15147 (11th Cir., October 17, 2014), opinion at http://
media.ca11.uscourts.gov/opinions/pub/files/201214676.pdf. CCC and the 
Association of American Publishers, recognizing the long-term negative 
effects on the market for scholarly works of the GSU policy, and after 
settlement discussions failed, provided financial support to the 
plaintiff publishers.
---------------------------------------------------------------------------
    The Court of Appeals for the Eleventh Circuit recently unanimously 
overturned in its entirety a decision of the District Court for the 
Northern District of Georgia which was largely in favor of the 
university, and directed the District Court to reanalyze the facts of 
the case under a framework for fair use laid out by the Court of 
Appeals. The Court of Appeals decision was accompanied by a concurring 
opinion by one of the judges. As the concurring opinion makes clear, at 
stake in the GSU case is more than where to draw lines in case by case 
analysis, but rather the disturbing market harm caused by practices 
such as those at GSU.\8\ If entire courses are offered using materials 
without compensation to creators, fewer works will be created. In this 
respect, the majority opinion agreed that GSU's practices risked 
``severe market harm'' to academic publishers. \9\
---------------------------------------------------------------------------
    \8\ ``[T]his case arises out of a university-wide practice to 
substitute `paper coursepacks' (the functional equivalent of textbooks) 
that contained licensed copyrighted works with `digital coursepacks' 
that contained unlicensed copyrighted works. This was done for the vast 
majority of courses offered at GSU and, as will be seen, it was done 
primarily to save money.'' Id. at 116 (special concurrence of Judge 
Vinson) (quotation marks and emphasis in the original).
    \9\ ``[B]ecause Defendants' unpaid copying was nontransformative 
and they used Plaintiffs' works for one of the purposes for which they 
are marketed, the threat of market substitution is severe.'' Id. at 111 
(majority opinion); see also id. at 93, n.31 (majority opinion).
---------------------------------------------------------------------------
    While the final outcome of the case is unknown, what is most 
relevant to today's discussion is that, at the time of the lawsuit, GSU 
could have purchased a repertory license from CCC for an annual license 
fee of $3.75 per student. This license would have granted GSU friction-
free permission to use millions of works in, among other things, 
electronic reserves, print and electronic course packs and other paper 
and digital formats, and would have authorized reuse by all of the 
university's administrators, faculty and students. We know the license 
is appropriate for the academic, research and administrative needs of 
academic institutions; we built it with them for them.
    We note this, not to denigrate the role of fair use in the 
educational setting but, rather, to observe that fair use line-drawing 
is inevitably complex and uncertain. At least to the extent that fair 
use is to be determined on a case by case basis, fair use does not lend 
itself to bright-line rules regarding page and chapter counts. How much 
of the work was used qualitatively as well as quantitatively? What is 
the intended market for the work? What is the potential market harm?
    Our experience indicates that there are other means of ``making 
copyright work.'' These involve sitting down with creators and users, 
determining the rights needed, the rights available, and the fair 
pricing for the rights and uses, taking reasonable (and differing) 
conceptions of fair use boundary lines into account. With this in mind, 
CCC has created multiple, easy to use, reasonably priced license 
mechanisms meeting the needs of academic institutions. In all, more 
than 1,200 colleges and universities participate in one or more of 
these license programs. Our newest, aggregated license, which 
encompasses online uses of the type GSU has been engaging in, costs 
less annually per student than one small pizza, enables faculty to 
focus on the important business of teaching, and spares administrators, 
faculty, and librarians from needing copyright expertise in order to do 
their jobs. Market-based solutions require different options for 
different customers, and we have delivered those options in the past 
and will do so in the future.
                               conclusion
    Licensing does not supplant fair use and statutory limitations such 
as Section 108. Fair use will not and should not disappear merely 
because a copyright holder offers to license a use of its work, or 
because a user accepts such a license. For licensing to work, 
rightsholders need to offer value, which means in part providing 
licenses for rights that go beyond a reasonable notion of what is 
allowed pursuant to statutory exception. Increasingly, it also requires 
providing services that compliment copyright licenses, such as 
delivering content along with such licenses as CCC does with Get It 
Now.
    We urge Congress, as it considers the consequential issues before 
it, to take account not only of the ``first principles'' of copyright 
law that should guide sound policy-making, but also to recognize the 
potential for voluntary, opt-in, market-based solutions of the type CCC 
has developed that meet the reasonable needs of users, while helping 
promote the creation of works of authorship that further the 
Constitutional purposes of copyright--the ``promotion of Science and 
the useful Arts.''
    Thank you again for the opportunity to testify today. CCC looks 
forward to working with the Subcommittee as it continues to explore 
these important issues.
                               __________

    Mr. Marino. Thank you, Mr. Kaufman.
    As is my tradition, I hold my questioning until last and 
give my colleagues the opportunity to ask questions, since I am 
going to be here.
    So therefore, the Chair recognizes the gentleman from 
Texas, Congressman Farenthold.
    Mr. Farenthold. Thank you very much.
    I would like to start by asking Mr. Adler, it is my 
understanding that after the publishers first sued Georgia 
State, Georgia State adopted a new e-reserve policy that was 
very similar to the e-reserve policy that your organization had 
agreed to with Cornell and other universities. The publishers 
nonetheless continued to litigate against the new e-reserve 
policy, and this new policy was subject to the decision in the 
District Court in the 11th Circuit.
    Why did the publishers continue to pursue Georgia State 
after it adopted its new policy? Shouldn't they have just 
declared victory once Georgia State adopted a policy that they 
were okay with?
    Mr. Adler. First of all, Mr. Farenthold, the policy that 
was adopted was not the same as the principles that we had 
worked out with Cornell and Marquette and Hofstra and Syracuse. 
It was a very different kind of policy.
    Secondly, the policy was largely intended to try to moot 
the litigation based on the arguments made by Georgia State to 
the court that none of the infringing activities that we 
alleged to have occurred under the prior policy were actionable 
anymore, because they had simply acted to replace the policy.
    As you know, that is not a very suitable way to go about in 
Federal court seeking redress of grievances. Basically, we felt 
that there had been violations of copyright law committed. They 
needed to be answered to the court, and simply can't be 
eliminated by changing the policy and saying that whatever 
happened before no longer matters.
    Beyond that, the new policy that they have continues to 
operate in a way that even the majority of the appellate court 
that reversed and remanded the case back to the district court 
found was largely misusing a mathematical formula in a simple 
arithmetic way of determining whether in a particular instance 
a use of a publisher's works was fair use. As long as they 
continue to do that, the same types of problems that existed 
under the previous problem were going to continue.
    Mr. Farenthold. Okay, let me go to Mr. LaBarre. I might 
come back to you, Mr. Adler.
    Mr. LaBarre, do you foresee technology solving this 
problem, as more and more books become available in e-book 
format? You are starting to see the e-book manufacturers 
provide accessibility functions like text to speech. You have 
the new Amazon tablet that is supposed to be pretty good with 
text to speech. Is a lot of this stuff going to eventually take 
care of itself?
    Mr. LaBarre. Well, we hope so, in one regard. The problem 
is that a lot of the devices that are made, or the software 
that is used, is not compatible with the type of assistive 
technology that we use. I may have a laptop here that has on it 
something called JAWS for Windows. It is a screen-reading 
program. But if the underlying software or item cannot be read 
by JAWS, then that document is as inaccessible to me as it ever 
was.
    So this is the point: Technology holds out the promise, but 
we need to put in place procedures and guidelines, and make it 
clear that when you build this technology, it can be accessed, 
because inherently, all digital information is a bunch of zeros 
and ones. It is neither print-friendly, Braille-friendly, 
audio-friendly. It is digital information.
    As long as we construct a way to get at that information in 
a nonvisual manner, then what you are saying is, indeed, true. 
We will have access to many more books. And the potential 
exists that we can have access at the same time.
    However, if we don't build the appropriate infrastructure 
and have the appropriate guidance from, for example, Congress, 
then we will not reach that day and not realize the promise 
that technology----
    Mr. Farenthold. Obviously, a little bit beyond the scope of 
the intellectual property issue, but I do think it is something 
that Congress could investigate, and it may take care of 
itself.
    I wanted to get Mr. Adler's comment on that as well.
    It is clearly in publishers' and authors' best interests to 
move away from paper books. It is cheaper to produce. You don't 
have overprints. You don't have warehousing. It is easier to 
update.
    Is there a reluctance within your community to moving to 
digital? And do you think a move to digital solves this 
accessibility issue?
    Mr. Adler. No, sir. There is not a reluctance at all on the 
part of publishers to move to digital. I think the explosion of 
e-book trade has indicated that publishers, certainly, are 
interested in, and are engaging in, use of digital formats in 
order to distribute their works.
    But there are two important things, also, that we have to 
consider. One is the fact that much of the marketplace doesn't 
want digital works. For that reason, there is still a healthy 
demand for works in printed format. It depends upon the type of 
work at issue, but there are people out there who are not 
interested in having a Kindle or any other device to read 
books. They just like to read books in paper form.
    Mr. Farenthold. The battery does not run out on my hardback 
books, so I understand that.
    But I see my time has expired.
    Mr. Adler. If I could just finish, the other point is that, 
according to the U.S. Bureau of Labor Statistics and the Census 
Bureau, about three-quarters of the publishers in the United 
States are small businesses. These are businesses that may have 
as few as 10 employees, and they produce as few as two or maybe 
three works a year.
    For many of them, they don't have the ability to invest in, 
or the sophistication to use, some of the production facilities 
that are required in order to produce works in the types of 
digital formats that do lend themselves greater to 
accessibility.
    Mr. Farenthold. I can't believe it is harder to publish 
something digitally than it is hardcopy. I am not buying that.
    But I yield back.
    Mr. Marino. The Chair recognizes the gentleman from New 
York, the Ranking Member of the Subcommittee, Congressman 
Nadler.
    Mr. Nadler. Thank you. I will start with asking Mr. Adler--
he is missing only an ``N'' in front of his name to be in 
better shape. [Laughter.]
    Mr. Adler, why do educational publishers consider it so 
important to improve clarity and predictability in the 
application of fair use to the use of copyright works for 
education purposes? What is the problem there?
    Mr. Adler. The chief issue with respect to Georgia State 
University, and this is why, with respect to Mr. Farenthold's 
question, Georgia's change of policy was not to adopt the type 
of policy that was adopted by the other schools he mentioned, 
because the other schools accepted the principle that it 
doesn't matter what form of media a work is formatted in for 
distribution and use. The issues of copyright apply the same 
way whether you are dealing with a work in digital or print 
format.
    Georgia's policy continued with a practice that didn't 
accept that notion and continued to treat the fact that even 
though it had been paying permission fees for paper course 
packs, it continued to deny that it had to pay fees for the 
same type of course----
    Mr. Nadler. The required clarity is that the law applies in 
both cases?
    Mr. Adler. Yes, so the fact of the matter is that now so 
many publishers are producing material specifically for the 
academic market in digital forms using online platforms that 
have greater functionality and are more helpful to instructors 
in dealing with some of the problems of students today and 
higher education. We are concerned about this lack of 
willingness to accept the media neutrality premise.
    Mr. Nadler. And you think the scope and applicability of 
fair use by the courts has strayed from the statutory language 
and the Supreme Court precedent?
    Mr. Adler. Yes, it has.
    Mr. Nadler. And that should be straightened out by us or 
the Supreme Court?
    Mr. Adler. Yes, the Supreme Court announced the notion of 
the importance of transformativeness in fair use analysis in a 
case that involved parody, where what was involved was the 
creation of a new work with new original expression in 
commenting on a pre-existing work.
    Many of the decisions in the area of transformativeness now 
no longer require that there be a new work produced or that 
even new original expression be applied to the pre-existing 
work. They simply decide that if there is a different purpose 
to which the work is being applied, and that purpose can be 
viewed as having social benefit, that constitutes fair use. 
That is a distortion of what the Supreme Court has said.
    Mr. Nadler. Thank you.
    Mr. Bernard, can you explain why the higher education 
associations strongly support the continued viability of 
flexible fair use as a bedrock principle?
    Mr. Bernard. Yes, thank you, Congressman.
    So fair use enables postsecondary institutions to be able 
to make decisions at the time that the problem emerges, rather 
than waiting for Congress to create another limitation to make 
particular kinds of uses.
    In order to do the kinds of work we do on our campuses, we 
actually need to be thinking about the students that we see 
today.
    So, for instance, just to think about the questions that we 
have been asked and are now starting to answer about access for 
people who have print disabilities, were fair use not available 
to the University of Michigan and other libraries who 
participate in HathiTrust, we would not have taken that 100,000 
or so works and turned it into 13 million works that scholars 
and students attending postsecondary institutions will have the 
opportunity to access, so they actually don't have to wait 
weeks upon weeks to be able to decide whether or not they want 
to even use the work that has been either converted or 
digitized. Now these works are immediately available.
    It is fair use that enabled that. Our institutions make 
these kinds of judgments----
    Mr. Nadler. It is flexible fair use that has enabled that.
    Mr. Bernard. It is. It is the opportunity to weigh those 
things. There is no question that copyright holders have 
rights.
    I realize that that there is a meme out there that suggests 
that postsecondary institutions think that everything should be 
free. But this is not how we view things. We spend an 
extraordinary amount of money every year buying copyrighted 
works or licenses to those works because we think that is the 
right thing to do.
    Mr. Nadler. I have one other question before the time runs 
out, because I see that yellow light is on.
    Although Mr. Coble is not in the Chair, he would cut it off 
quickly, nonetheless.
    Do you think the Section 110(1) classroom exception should 
be modified to include places other than traditional 
classrooms, for example, in a gym or library on school grounds?
    Mr. Bernard. I think that is, certainly, plausible, and 
something that we ought to be thinking about. I also think we 
ought to consider the classroom of today, which is an 
asynchronous classroom. The course management systems that----
    Mr. Nadler. What do you mean by asynchronous?
    Mr. Bernard. What I mean is that aspects of the course 
experience that the student has with the faculty member doesn't 
happen right in front of the faculty member. The faculty member 
might say, ``What I would like you all do is view this material 
or interact with this material and then come back and talk to 
me.'' It might even be that students actually leave the 
classroom or it might be that they do it at home.
    We are starting to do these flipped classrooms where 
faculty members are doing their lectures in a digital format, 
including showing images, films, sound--those sorts of things. 
Students see that at home, along with doing their homework and 
reading, and then they come to class and they can actually 
interact with the faculty member in person.
    Rather than having the faculty member just be the sage on 
the stage, the faculty member is actually able to answer 
questions, because the lecture has already happened. And this 
is the modern classroom.
    Mr. Nadler. I like that phrase, ``sage on the stage.''
    But let me ask just one more question, a general question. 
Are there other updates to Section 110(1) that you think are 
needed?
    Mr. Bernard. We use Section 110(1) robustly. We don't use 
Section 110(2) all that much. We end up relying on fair use, to 
your earlier question.
    But Section 110(1), we haven't really had problems with it. 
We show what we need to in the context of the classroom. We, 
certainly, would like it to apply to asynchronous learning.
    Mr. Nadler. Thank you.
    I yield back.
    Mr. Marino. Thank you.
    The Chair recognizes the gentleman from Michigan, the 
Ranking Member of the full Committee, Congressman Conyers.
    Mr. Conyers. Thank you, Chairman Marino.
    I ask unanimous consent to put in my opening statement.
    Mr. Marino. Without objection.
    [The prepared statement of Mr. Conyers follows:]
    
    
    
    
    
    
    
    
    
    
    
    

                               __________
    Mr. Conyers. Thank you.
    Let me turn to General Counsel Adler to ask this question. 
How has the Chafee amendment helped copyright issues for the 
blind or other individuals with print disabilities?
    Mr. Adler. The copyright exemption that is known as the 
Chafee amendment was necessary at a time which was largely pre-
digital, when in order to be able to try to make printed works 
useful to people who have print disabilities, such as blindness 
or low-vision, you needed to convert those works in some manner 
so that they would be usable.
    The Chafee exemption was designed to ensure that there was 
no unnecessary delay in obtaining permission from the copyright 
owner of the particular work in order for certain authorized 
entities who knew how to do those conversions to be able to go 
ahead and create accessible versions of those works.
    Later on, digital technology has allowed for great strides 
to be made in making works inherently accessible, hopefully in 
the marketplace, so that you have only one version of a product 
that can be purchased by people with print disabilities, as 
well as consumers who don't have those print disabilities.
    But the Chafee amendment has been very useful. It helped 
establish Bookshare, which is the largest online digital 
library of accessible works available for people with print 
disabilities. And AAP was very proud to work with Benetech in 
order to see that the launch of Bookshare was successful.
    Mr. Conyers. Thank you.
    Counsel Jack Bernard, how would you assess how the current 
copyright regime works for educational institutions, such as 
universities?
    Mr. Bernard. Thank you, Congressman. The copyright regime 
is working pretty well for us. I mean, we do have the 
challenges of the flexible fair use standard that we like. We 
appreciate having the flexible fair use standard. It means we 
have to invest in it and work hard.
    Copyright is working well for postsecondary institutions, 
because it creates opportunities for us not only to have access 
to works, but to provide access to works.
    Higher education is changing dramatically right now in so 
many ways. The flexibility afforded by the Copyright Act, and 
specifically Section 107, enables us to analyze the kinds of 
new uses that we want to make.
    Because the Copyright Act is structured so that there are 
Sections 108 through 122, Congress has the opportunity to 
authorize additional uses, so that we wouldn't have to go 
through that more difficult fair use analysis, as happened in 
Section 108. We, certainly, welcome those opportunities to 
expand the limitations on copyright holders' rights for the 
benefit of the public.
    Mr. Conyers. Thank you very much.
    Mr. Bernard. Thank you.
    Mr. Conyers. Could I ask State President LaBarre and 
Managing Director Kaufman if they have any additional comments 
that they would like to make in connection with our purposes of 
this hearing this afternoon?
    Mr. LaBarre. Yes, Mr. Congressman, if I may, I want to 
respond a little to what Mr. Adler was saying.
    Now, it is true that technology is changing how we access 
information, but it is not the cure-all. Consequently, Chafee 
needs to be as strong as ever, and we need to ratify Marrakesh.
    What I mean by that is that this technology that I have in 
front of me that allows me to get access to digital works, if 
they are inherently accessible, which is still a minority of 
such works, is expensive. It costs thousands of dollars.
    Consequently, there are blind and low-vision people who 
cannot use the technology and still need the hardcopy Braille, 
the audiobooks, and large print.
    So regardless, if every book were somehow inherently 
digitally accessible today, there would still be a significant 
number of people who are blind and visually impaired who still 
would not have access.
    And I wish we were at a time when even those digital works 
were largely, if not totally, accessible. But they are not, so 
we still have a long way to go.
    Mr. Conyers. Do you have anything you would like to add?
    Mr. Kaufman. Yes, I will make it brief, given the time.
    I would just like to say that within the educational 
environment, we have great opportunities and new ways to use 
digital content, especially for distance-learning, massive 
online open courses, and things like that, and that voluntary 
opt-in licensing is a really good way to match up the needs of 
the users, be they educational institutions or students, and 
rightsholders on the other side.
    Thank you.
    Mr. Conyers. Thank you very much.
    I thank all the witnesses.
    I yield back my time.
    Mr. Marino. Thank you, sir.
    The Chair recognizes the gentleman from New York, 
Congressman Jeffries.
    Mr. Jeffries. I thank the Chair, and I thank the 
distinguished members of the panel for your presence here 
today, as well as for your presentations.
    I think, as every Member of this Committee, I take 
seriously our responsibility to protect the intellectual 
property rights of the creative community of innovators, 
certainly a charge that finds its roots in the Constitution, 
Article 1, as we know it, authors and inventors.
    But as we move forward with the 21st century innovation 
economy, and in the context of that innovation economy and its 
connectivity to the educational arena, I would be interested, 
perhaps beginning with Mr. Adler, how do we balance the 
changing classroom environment and the different ways in which 
learning may take place as a result of the digital revolution 
with that sacred constitutional charge that we have to make 
sure we are protecting intellectual property of authors, in 
this case?
    Mr. Adler. Thank you, Mr. Jeffries, for the question.
    As I said, we are in the midst of a revolution in which 
educational publishers are basically now providing online 
learning solutions as well as customizable content that can be 
used online or with a variety of different kinds of digital 
devices. Those materials, as I say, can be personalized for the 
needs of individual students and help them be able to better 
engage in their learning process and stay in school to achieve 
better outcomes.
    During that process, I think it shouldn't be a problem for 
people to understand that, as in most aspects of use of 
copyrighted works in digital formats, licensing is going to be 
involved. The fact that licensing is now convenient, is 
affordable, as we argued in and demonstrated in the Georgia 
State litigation, it should be become part and parcel of the 
educational environment, which doesn't mean that there is an 
end to fair use in that environment. It simply means that as 
greater functionality is desired and the ability of these 
materials in digital formats to be used in more creative ways 
and available to more people through different channels, that 
licensing becomes a more important aspect of being sure that 
copyright is respected while these materials are being widely 
distributed and used in the higher education sector.
    Mr. Jeffries. Now, I know the Georgia State case is still 
working its way through the court system, and I gather an 
application for the entire circuit to hear the case is 
currently pending. But what, if any, lessons can or should 
Congress or this panel draw from the issues litigated in that 
Georgia State case?
    Mr. Adler. Well, among other things, again, the importance 
of the copyright principle of media neutrality.
    Congress has made it clear, the Supreme Court has made it 
clear, and I guess it has to be reaffirmed again, that the 
rights of copyright owners and the way in which those rights 
apply to uses of their works, doesn't change from one medium to 
another. So that in the digital environment, the same type of 
respect for copyright that was accorded to works in analogue 
formats must also be accorded in digital formats as well.
    Besides that, the notion that on campuses all across the 
country people get to choose among diverse choices for the 
types of material they use, the medium in which they use them, 
how they access them, how they are delivered to them, gives 
them a great deal of freedom in order to shape their own 
agenda.
    The publishers are not trying to tell teachers how to 
teach. They are simply trying to provide them options in terms 
of the tools that are available for them to decide what is the 
best way to get the best results with their students.
    Mr. Jeffries. Mr. Bernard, could you weigh in?
    Mr. Bernard. Thank you, Congressman. I think there is an 
opportunity here for a note of caution along a couple lines 
that I want to think about with you.
    That idea of a world in which everything is digital gives 
us wonderful opportunities, as Mr. Adler has described, 
tremendous opportunities that education avails itself of. But 
there is also the concern that we might actually start 
transgressing on what would be a fair use.
    That is, in a world where everything is digital, it is 
possible to license a page, a paragraph, a sentence. And I 
think we would want to be very clear that we don't want to end 
up in a world where just because there is an extant license 
means that the public will not be able to make some uses to 
which it is entitled.
    Fair use is there, in part, in order to protect our ability 
to make our First Amendment rights available. So it is critical 
that we think about that relationship.
    In addition, another thing to be concerned about is, in the 
realm of a license regime, we start losing our ability to make 
first-sale uses. That is, the digital book you buy may not 
necessarily be something you can pass on.
    Now, there have been efforts to move along these lines. But 
I think the digital collections people have, they may not be 
able to share. So the value of the work itself, the ability to 
promote the kind of colloquy and interaction that we have when 
we share works with other people, may disappear in a regime 
that is governed by licenses.
    Mr. Jeffries. Thank you.
    I yield back.
    Mr. Marino. Thank you. My Democratic colleague Dr. Chu was 
unable to attend today, but she asked if I would present a 
question to each of you actually, so we will start with Mr. 
Bernard and then we can go right down the line, should you 
choose to answer these questions.
    Dr. Chu asked Mr. Kaufman, Mr. Bernard, Mr. Adler, and Mr. 
LaBarre, if you would like to address this also, you all 
address the GSU litigation in your testimony. Mr. Bernard noted 
that the 11th Circuit recognized that, ``Congress devoted 
extensive effort to ensure the fair use would allow for 
educational copying under the proper circumstances.'' The 
publisher's lawsuit against GSU indicates that there is 
disagreement over what those proper circumstances are.
    What do each of you think the value would be for the day-
to-day educational needs of faculty and students if 
stakeholders could work with the Copyright Office to come up 
with safe harbors or some other mutually agreed guidance?
    If you need me to repeat any of that, just let me know.
    Mr. Bernard. Okay, so thank you, Congressman. I think 
postsecondary institutions, higher education, is always looking 
for the opportunity to talk about how we might make things work 
well. I think the Georgia State case, in my view, is an 
unnecessary case. It is a case that could have been resolved 
through diplomacy.
    I think it is that kind of diplomacy that is of critical 
importance. Yes, we are not always going to agree, but, 
overwhelmingly, we find a way to come to common ground, because 
it is not a good use of anyone's time to have these kinds of 
disputes that are very, very expensive.
    I think the Copyright Office, certainly, can be helpful. I 
know that my university and others have partnered with the 
Copyright Office to talk about things like making works 
accessible to people who have print disabilities, orphaned 
works, so I think there is value in having an open discussion.
    Mr. Marino. Mr. Adler?
    Mr. Adler. Yes, Mr. Marino. As I said in our oral 
statement, we urge the Congress to direct the Copyright Office 
to engage in a study that would involve soliciting public 
comment, holding roundtables for public discussions, to help 
clarify how fair use operates in the educational setting as 
well as in other contexts. We think that the Copyright Office, 
as the Government's expert on copyright, has repeatedly been 
tasked over the years by Congress to look into a number of 
different issues, to report to Congress with recommendations 
about how to address particular situations and problems.
    There is no reason why the Copyright Office shouldn't be 
tasked to employ its expertise in the area of fair use. So we 
would strongly support a recommendation of that nature.
    Mr. Marino. Thank you.
    Mr. LaBarre, please?
    Mr. LaBarre. Yes. Certainly, in one context, fair use has 
been of great benefit to the blind and low-vision. The Supreme 
Court, in fact, has recognized that transforming materials into 
accessible formats is almost impliedly a fair use. So we, 
certainly, believe that Congress needs to reaffirm those 
principles, as it did in 1976 when adopting the current version 
of the copyright regime.
    With respect to these other more global issues that are 
going on in terms of mainstream education, the comments I made 
earlier about getting access to that stream are relevant here. 
We would like to be on the same footing to debate some of these 
issues, but we are not even inside that room yet because we 
don't have access to materials on a broad basis.
    Finally, with respect to the issue of safe harbors, I 
referenced in my testimony the TEACH Act, our new TEACH Act 
that is before this Congress. It would offer to educational 
institutions a safe harbor from litigation, if those 
institutions follow the guidelines that would be developed with 
respect to making material and published works accessible in 
the educational space.
    The reason this is necessary is, although we have broad 
mandates from this Congress that the educational experience 
must be accessible to an individual with a disability and you 
must be able to participate on terms of equality, no one really 
knows how to do that. That is why it is critical that we 
develop these guidelines. And as part of that, in doing so, and 
if institutions comply with those guidelines, they would, in 
fact, have a safe harbor from litigation.
    Mr. Marino. Thank you, sir.
    Mr. Kaufman?
    Mr. Kaufman. Yes, the short answer to your question is yes. 
The longer answer is we would be very happy to work with the 
Copyright Office in looking into these issues. That is, in 
fact, how we fulfill our mission of making copyright work. We 
do this through working with stakeholders, users, creators, 
everyone who we can get into a room and try to work out these 
things to function and smooth out any ruffles.
    So, yes. Thank you.
    Mr. Marino. Thank you. I am a big proponent of anyone 
having a dog in the fight be sitting at the table and taking 
part in the procedures like this.
    I am going to convert now over to my questioning. The 
question you responded to was for Dr. Chu, and now I am going 
to take a couple moments and ask some of my questions.
    I want to start with Mr. Bernard. I come from a prosecution 
background, so everything is very narrowly defined. We 
constantly refer to the fair use, but some of us refer to 
flexibility or the flexible fair use.
    Where do you draw that line? What is not flexible? What is 
flexible? Who is to make that determination without litigating?
    Mr. Bernard. It is important that we are able, as higher 
education, to engage in communication and speech. And every 
time a person is prevented from using an expressive work, this 
is an incursion into speech.
    Now, it is an incursion into speech that has another 
constitutional benefit; that is, incentivizing people to 
promote progress. But the line there is a delicate line. It is 
a line that we work out a great deal with content holders and 
as content holders ourselves.
    So I understand the Copyright Act is designed to have that 
pressure valve in it, so that courts and people sitting around 
the table can talk about how they might smooth over 
disagreements.
    So the rigidity there is a challenge because we are at the 
confluence of the First Amendment and the progress clause. We 
want to be able to do both. It is a very delicate thing.
    So I understand the attraction. I assure you that many 
people on our campuses would love bright lines for everything. 
But there are risks with bright lines, in this context.
    And I would say, too, when we talk with the Copyright 
Office about these issues, it is important not to diminish that 
flexibility, because it is useful in the kinds of engagements 
we have.
    And as I said before, we spend an extraordinary amount of 
money and energy as customers. My library is a customer of the 
Copyright Clearance Center. These relationships are important 
relationships, and just because there is a flexible fair use 
doesn't mean they won't happen.
    Mr. Marino. Thank you.
    Mr. Adler, would you like to respond to that?
    Mr. Adler. Yes, we know that it has been very difficult for 
any agreement to be reached on any kind of quantitative 
standards for fair use. No one wants to have page counts or 
questions of whether chapters or other units of works 
constitute a fair use unit as such.
    That has been a real difficulty ever since the codification 
of fair use, wherein Congress, actually, in its legislative 
history endorsed a compromise for classroom guidelines that 
attempted to go in that direction.
    We understand that in the digital environment, the 
classroom guidelines clearly don't work well or satisfy the 
needs of education at any level.
    But there are important principles that still remain to be 
applied. The Supreme Court has made it clear, for example, that 
in order to negate fair use, one need only show that if the 
challenged use should become widespread, it would adversely 
affect the potential market for the copyrighted work.
    There are 4,000 institutions of higher education in this 
country, and if they were all doing exactly what Georgia State 
has been doing, that would meet the definition of the Supreme 
Court's concern about alleged fair use becoming so widespread 
that it adversely impacts the incentives of rightsholders to 
continue creating works for that market.
    Mr. Marino. Thank you.
    Mr. LaBarre?
    Mr. LaBarre. Well, with respect to fair use, I want to 
reference the Second Circuit Court of Appeals' opinion in the 
Authors Guild v. HathiTrust case. This is a perfect 
demonstration of how fair use can open up doors to communities 
who haven't otherwise had an opportunity to access information. 
In that case, of course, the court deemed the University of 
Michigan's and other universities' development of the 
HathiTrust and making that available to persons who are blind 
and otherwise print-disabled, and deemed that that was indeed 
perfectly in keeping with Congress' intent in developing the 
fair use clause.
    We need to reaffirm that and make sure that we find other 
similar uses, because in this case, as it is now applied, if 
you register with the University of Michigan, you can get 
access to millions of works in an accessible format that you 
did not have the ability to do previously.
    Mr. Marino. Thank you.
    Mr. Kaufman, would you care to respond?
    Mr. Kaufman. Yes, sure. What I like about your question is 
it is why I kind of like licensing.
    So there are things everyone is going to look at and say 
that is fair use. And there are things that most people 
rationally look at and say that needs permission. And then 
there are some grounds in the middle where there is room for 
honest debate.
    With a license, you can take away their need for honest 
debate, because you develop within the license flexibility, so 
that you are granting permission, particularly when you do a 
repertory license to cover all of these uses where you don't 
need to decide in each and every case is this fair use, is this 
on the line, does this require permission? You cover it all, 
and do it in expensively, and build the ambiguity, frankly, 
into the price.
    Mr. Marino. Bear in mind that space between the lines of 
fair use, every time it gets litigated, could become narrower 
and narrower.
    Thank you.
    Now it is my pleasure to have Congresswoman Jackson Lee 
from Texas ask questions.
    Ms. Jackson Lee. Thank you, Mr. Chairman.
    Although we are in the waning hours of this Congress, I 
think this is a very important hearing and probably one that 
maybe requires some further study as to how we can respond.
    As I look at the Georgia State case, I am wondering and 
reflecting upon what we did in yesteryear of copying and 
Xeroxing, and professors or people Xeroxing notes.
    So I guess I would like to ask, on the Georgia State case, 
any thoughts, Mr. Kaufman, about a legislative response to 
that, based upon what the 11th Circuit did?
    Mr. Kaufman. I think we need to see where the case ends up 
in the 11th Circuit. We, as an organization, were formed 
because of the Xerox machine, in large measure, and because of 
deliberations before the 1976 act. So we exist to license 
photocopies, in the earliest instance, and we have migrated 
online as an organization.
    Whether legislative action is needed to get people to 
recognize the media neutrality concept and to continue to clear 
permissions for digital uses to things that were clearly 
required in print, I am not sure yet.
    Ms. Jackson Lee. Do you think that there is a calling or 
higher need to balance the arguments you are making with the 
arguments of learning and teaching?
    Mr. Kaufman. I think the arguments that I am making 
incorporate learning and teaching. In the Georgia State case, 
it would have cost $3.75 per student for a year to be able to 
copy millions and millions of works in print and digital 
format. As one of our customers once said, this actually 
enables us to make greater lawful use of the things that we are 
already buying.
    So I think our license solution actually really was created 
for academic use and for institutional use within the academy. 
I think it works very well to do so, as long as people respect 
the law and avail themselves of the license.
    Ms. Jackson Lee. Let me go to Dr. Bernard and mention the 
importance of the flexibility of fair use.
    Would educational institutions also benefit from specific 
guidance or more official best practices? And in your view, are 
professors and other instructors able to easily determine what 
educational uses are, in fact, fair on a practical and day-to-
day basis?
    Mr. Bernard. So I would see higher education saying that it 
would be wonderful if Congress said in Section 123 of the 
Copyright Act, as yet to be enacted, that it would, certainly, 
be an acceptable use to make some percentage use for the 
purposes of teaching and learning. I think you could take an 
approach like that and say at the same time that this would in 
no way limit fair use in terms of going beyond that, like we do 
in other sections.
    I should also add that there is no barrier. I know that 
there has been this idea of a barrier for postsecondary 
institutions to seek licenses. My institution secures almost 
$10 million in licenses for the kinds of works that the 
Copyright Clearance Center makes available. So this licensing 
model, the idea that there is this barrier over media, it 
doesn't graft onto my experience with what postsecondary 
institutions do. And that $10 million number is an annual 
number to gain access to these works for our students.
    So this is something that is already working and doesn't 
require legislation. But if you wanted to create some kind of 
safe harbor, a reasonable safe harbor that didn't include fair 
use, I think higher education would welcome that opportunity.
    Ms. Jackson Lee. What you are telling us is that you 
already have a global access that you utilize, that your 
professors can draw down on, based upon the responsibility of 
the university, period, and then your professors are covered as 
they draw down on those materials to give access to the 
students.
    Mr. Bernard. Sure. Most institutions purchase licenses, and 
they don't necessarily all purchase the same licenses, and the 
licenses have gaps. They don't cover every work. So there is no 
question that there is need for organizations and ways to get 
access.
    But abundantly, abundantly, we use licenses to get access 
to many, many millions of works each year, because our students 
need that access in order to promote progress, to be the next 
generation.
    Ms. Jackson Lee. And your professors adhere to--they 
understand and you educated them about it, and they understand 
how to access and use it in their teaching?
    Mr. Bernard. There is no question that we educate our 
faculty about it. But you know it is like herding cats at 
times. The faculty can be confused, make mistakes. But we work 
with those who do. All institutions run into circumstances 
where somebody has transgressed some line, and we work with 
them pretty assiduously.
    Ms. Jackson Lee. I would ask the gentleman for an 
additional minute.
    Mr. Marino. Without objection.
    Ms. Jackson Lee. Thank you very much.
    I want to hear from--I will say a free-for-all from both 
Mr. LaBarre and Mr. Adler, please. I heard from Mr. Bernard and 
have not heard from Mr. LaBarre.
    I want to specifically speak about the visually impaired 
and just give me, in this moment that I have, what can be the 
most important message that we get out of this hearing today as 
it relates to the visually impaired.
    Mr. LaBarre, do you want to start?
    Mr. LaBarre. Sure. Thank you very much.
    I think the most important message is there isn't one 
solution. It isn't just Chafee. It isn't just Marrakesh. It 
isn't just the TEACH Act that we have before this Congress. And 
by the way, it isn't just licensing.
    Our community has used licensing, for example, Bookshare 
uses some licenses with publishers to get material into 
accessible formats. None of these is the solution alone.
    What I think this Congress needs to know and needs to 
endorse is we need all of these tools at our disposal to get 
rid of the great information gap that people who are blind or 
low-vision still face, despite the advances in technology, 
despite Chafee.
    We in this country have access to something less than 5 
percent of published works in accessible formats. So we need to 
use all the tools, and we need to make it clear that it is a 
high priority of this Nation to use these tools, so that 
someday, hopefully, we will, indeed, catch up.
    Ms. Jackson Lee. Yes?
    Mr. Adler. Ms. Jackson Lee, if I may respond to that, I am 
not sure why my friend Mr. LaBarre failed to mention this, but 
the TEACH Act that he so strongly advocates, is intended to 
have the access board, the Government's expert body on 
disabilities, basically provide guidelines to inform publishers 
and manufacturers of educational delivery systems for content, 
what constitutes accessible materials for those purposes.
    That legislation was drafted jointly by the Association of 
American Publishers and the National Federation for the Blind. 
We have been working the Hill with the National Federation for 
the Blind, obtaining bipartisan support in both the House and 
Senate for that legislation.
    One of the things that people need to understand is that 
for many publishers, and particularly those that I mentioned 
earlier, the small publishers, the ones who are really small 
businesses, they don't necessarily know what is required to 
make a work accessible.
    That is why this legislation is extremely important. If 
experts can produce guidelines that will give them a good idea 
of what qualities are involved to make a work in digital format 
accessible, that will greatly improve the availability of 
accessible works, as Mr. LaBarre says is very much needed.
    Ms. Jackson Lee. So in concluding, you are sensitive to Mr. 
LaBarre's point about accessibility and publishers through the 
TEACH Act.
    Mr. Adler. Absolutely. We are jointly working with them on 
that. We are also working with our publishers on adapting their 
production of their publications to an EPUB 3.0 type of format 
that lends itself to greater and more easily casting works in 
accessible formats.
    We and other publishers are continuing along with those 
initiatives, so that the production of these works continues to 
have a better opportunity to add accessibility as one of the 
features of these works when they are brought to market.
    Ms. Jackson Lee. Mr. Chairman, thank you very much.
    Mr. Marino. You are welcome.
    Ms. Jackson Lee. I want to just thank you very much. I 
think this issue with the visually impaired is very important. 
I think this was a good discussion between, in particular, Mr. 
Adler and Mr. LaBarre.
    Mr. Marino. Agreed.
    Ms. Jackson Lee. Thank you.
    Mr. Marino. You are welcome.
    Ms. Jackson Lee. I yield back.
    Mr. Marino. This concludes today's hearing. I want to thank 
all the witnesses for attending. I also want to thank all the 
individuals who came to sit and listen to this testimony.
    Without objection, 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 4:54 p.m., the Subcommittee was adjourned.]
    
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