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87–423 PDF 2014

PRESERVATION AND REUSE OF 

COPYRIGHTED WORKS 

HEARING 

BEFORE THE

SUBCOMMITTEE ON 

COURTS, INTELLECTUAL PROPERTY, 

AND THE INTERNET 

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED THIRTEENTH CONGRESS 

SECOND SESSION 

APRIL 2, 2014 

Serial No. 113–88 

Printed for the use of the Committee on the Judiciary 

( 

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

COMMITTEE ON THE JUDICIARY 

BOB GOODLATTE, Virginia, Chairman 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

HOWARD COBLE, North Carolina 

LAMAR SMITH, Texas 

STEVE CHABOT, Ohio 

SPENCER BACHUS, Alabama 

DARRELL E. ISSA, California 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JIM JORDAN, Ohio 

TED POE, Texas 

JASON CHAFFETZ, Utah 

TOM MARINO, Pennsylvania 

TREY GOWDY, South Carolina 

RAU ́ L LABRADOR, Idaho 

BLAKE FARENTHOLD, Texas 

GEORGE HOLDING, North Carolina 

DOUG COLLINS, Georgia 

RON DeSANTIS, Florida 

JASON T. SMITH, Missouri 

[Vacant] 

JOHN CONYERS, JR., Michigan 

JERROLD NADLER, New York 

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

STEVE COHEN, Tennessee 

HENRY C. ‘‘HANK’’ JOHNSON, JR., 

Georgia 

PEDRO R. PIERLUISI, Puerto Rico 

JUDY CHU, California 

TED DEUTCH, Florida 

LUIS V. GUTIERREZ, Illinois 

KAREN BASS, California 

CEDRIC RICHMOND, Louisiana 

SUZAN DelBENE, Washington 

JOE GARCIA, Florida 

HAKEEM JEFFRIES, New York 

DAVID N. CICILLINE, Rhode Island 

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., 

Wisconsin 

LAMAR SMITH, Texas 

STEVE CHABOT, Ohio 

DARRELL E. ISSA, California 

TED POE, Texas 

JASON CHAFFETZ, Utah 

BLAKE FARENTHOLD, Texas 

GEORGE HOLDING, North Carolina 

DOUG COLLINS, Georgia 

RON DeSANTIS, Florida 

JASON T. SMITH, Missouri 

[Vacant] 

JERROLD NADLER, New York 

JOHN CONYERS, JR., Michigan 

JUDY CHU, California 

TED DEUTCH, Florida 

KAREN BASS, California 

CEDRIC RICHMOND, Louisiana 

SUZAN DelBENE, Washington 

HAKEEM JEFFRIES, New York 

DAVID N. CICILLINE, Rhode Island 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

STEVE COHEN, Tennessee 

JOE KEELEY, Chief Counsel 

HEATHER SAWYER, Minority Counsel 
(III) 

C O N T E N T S 

APRIL 2, 2014 

Page 

OPENING STATEMENTS 

The Honorable Howard Coble, a Representative in Congress from the State 

of North Carolina, and Chairman, Subcommittee on Courts, Intellectual 

Property, and the Internet .................................................................................. 1 

The Honorable Jerrold Nadler, a Representative in Congress from the State 

of New York, and Ranking Member, Subcommittee on Courts, Intellectual 

Property, and the Internet .................................................................................. 2 

WITNESSES 

Gregory Lukow, Chief, Packard Campus for Audio Visual Conservation, Library of Congress 

Oral Testimony ..................................................................................................... 7 

Prepared Statement ............................................................................................. 9 

Richard S. Rudick, Co-Chair, Section 108 Study Group 

Oral Testimony ..................................................................................................... 25 

Prepared Statement ............................................................................................. 27 

James G. Neal, Vice President for Information Services and University Librarian, Columbia University 

Oral Testimony ..................................................................................................... 32 

Prepared Statement ............................................................................................. 34 

Jan Constantine, General Counsel, The Authors Guild, Inc. 

Oral Testimony ..................................................................................................... 55 

Prepared Statement ............................................................................................. 58 

Michael C. Donaldson, Esq., Partner, Donaldson & Callif, LLP 

Oral Testimony ..................................................................................................... 78 

Prepared Statement ............................................................................................. 80 

Jeffrey Sedlik, Professor, President and Chief Executive Officer, Plus Coalition 

Oral Testimony ..................................................................................................... 94 

Prepared Statement ............................................................................................. 96 

LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING 

Material submitted by the Honorable Jerrold Nadler, a Representative in 

Congress from the State of New York, and Ranking Member, Subcommittee 

on Courts, Intellectual Property, and the Internet ........................................... 102 

Material submitted by the Honorable Jerrold Nadler, a Representative in 

Congress from the State of New York, and Ranking Member, Subcommittee 

on Courts, Intellectual Property, and the Internet, on behalf of the Honorable Judy Chu, a Representative in Congress from the State of California, 

and Member, Subcommittee on Courts, Intellectual Property, and the Internet .......................................................................................................................... 104 

APPENDIX 

MATERIAL SUBMITTED FOR THE HEARING RECORD

Supplemental Statement of James G. Neal, Vice President for Information 

Services and University Librarian, Columbia University ................................ 120 
Page

IV 

Supplemental Statement of Michael C. Donaldson, Esq., Partner, Donaldson 

& Callif, LLP ........................................................................................................ 128 

Prepared Statement of Allan Adler, General Counsel, Vice President for Government Affairs, the Association of American Publishers (AAP) ..................... 144 

Prepared Statement of the Computer & Communications Industry Association 

(CCIA) ................................................................................................................... 164 

Prepared Statement of Edward Hasbrouck for the National Writers Union 

(UAW Local 1981, AFL-CIO) ............................................................................... 168 

Prepared Statement of Marc Maurer, President, the National Federation of 

the Blind ............................................................................................................... 173 
(1) 

PRESERVATION AND REUSE OF 

COPYRIGHTED WORKS 

WEDNESDAY, APRIL 2, 2014 

HOUSE OF REPRESENTATIVES

SUBCOMMITTEE ON COURTS, INTELLECTUAL PROPERTY, AND THE INTERNET

COMMITTEE ON THE JUDICIARY

Washington, DC. 

The Subcommittee met, pursuant to call, at 2:13 p.m., in Room 

2141, Rayburn Office Building, the Honorable Howard Coble 

(Chairman of the Subcommittee) presiding. 

Present: Representatives Coble, Goodlatte, Marino, Smith of 

Texas, Chabot, Chaffetz, Holding, Collins, DeSantis, Smith of Missouri, Nadler, Chu, Deutch, Richmond, DelBene, and Lofgren. 

Staff present: (Majority) Joe Keeley, Chief Counsel; Tricia White, 

Clerk; (Minority) Stephanie Moore, Minority Counsel; Heather 

Sawyer, Counsel; and Jason Everett, Counsel. 

Mr. COBLE. Good afternoon, ladies and gentlemen. Welcome to 

our hearing today on preservation and reuse. 

Several of the witnesses have thanked me for letting you be here. 

Thank you all for responding to our invitation to be with us today. 

We are delighted to have a very distinguished panel. 

American culture has been described as a key component of our 

Nation’s exports, not just from a financial perspective but also as 

a demonstration of the creative ability of those who live in a democracy with constitutional guarantees. 

It should come as no surprise that as the Co-Chair of the Creative Rights Caucus, along with the gentlelady from California, Ms. 

Chu, I especially value the unique creations of American artists. 

The fact that some of these creations can be lost forever, due to an 

abandonment or outright deterioration, is a loss for our society. I 

welcome efforts to preserve our Nation’s cultural history. 

As some of you may know, I am an ardent advocate of blue grass 

music. Despite my support, I recognize that blue grass may not be 

the most popular music available to Americans, and we can disagree agreeably about that. But blue grass is a part of the culture 

of my State, and I do not want that culture to be lost with time. 

So I am pleased to learn of efforts like those at the Library of Congress and elsewhere to preserve our Nation’s culture for future generations. 
2 

Clearly, there are those who have raised questions that some efforts claiming to focus on preservation may, in fact, be neglecting 

the rights of copyright owners who still exist and could potentially 

be located with minimal effort. I am sure we will hear about that 

later today. 

Several years ago, the Subcommittee spent a fair amount of time 

on the orphan works issue. While I do not wish to repeat that investment of time here this afternoon, I do want to hear more about 

the other issues of section 108, the role of libraries and museums, 

as well as mass digitization. That word throws me every time. 

In closing, we welcome our many eminently qualified panelists, 

as I have said before. Thank you for taking time from your respective business schedules to join us today. We look forward to hearing from you subsequently. 

And I am now pleased to recognize the distinguished gentleman 

from New York, the Ranking Member, Mr. Jerry Nadler, for an 

opening statement. 

Mr. NADLER. Thank you, Mr. Chairman. 

Today we examine whether existing law adequately allows for 

the preservation and reuse of copyrighted works with appropriate 

protections for content creators and other rights holders. This topic 

touches on a broad range of interrelated issues, including the existing exception contained in section 108 of the Copyright Act that allows limited unauthorized reproduction of copyrighted works by libraries and archives, and how the existence of orphan works complicates preservation and reuse. 

Ensuring the preservation of creative works is unquestionably 

important. Our libraries, archives, and museums have always 

played a critical role in compiling and preserving this Nation’s rich 

cultural and historical heritage, and we all want to ensure that 

they have the tools necessary to continue their important work. 

At the same time, and as our copyright law appropriately reflects, authors, artists, and other creators have the exclusive right 

to control and exploit their works. Our goal is to ensure that we 

strike the right balance. 

Recognizing the unique public service mission served by libraries 

and archives, Congress first enacted section 108 in 1976, allowing 

these entities a limited exception for preservation, replacement, 

and research purposes long before technological innovations made 

it possible to make digital copies of analog works on a mass scale, 

a process otherwise known as mass digitization. And while orphan 

works legislation has previously been considered by Congress, 

these proposals like the relatively minor adjustments made to section 108 through the Digital Millennium Copyright Act of 1998 did 

not directly grapple with mass digitization. 

This hearing, thus, allows us to revisit preservation and reuse 

issues in light of the considerable technological changes that have 

taken place in the last few years. 

As a starting point for this discussion, I am interested in hearing 

from our witnesses regarding what parts of the recommendations 

issued by the Copyright Office Section 108 Study Group remain relevant today and whether further studies or adjustments might be 

warranted. 
3 

I am similarly interested in hearing whether the existence of orphan works, commonly understood to be copyrighted works whose 

owners cannot be identified or located making it impossible to negotiate terms for their use, remains a problem and, if so, how we 

should address it. 

Recent litigation over mass digitization seems to confirm the 

need for a solution. Those cases involve a public-private partnership between Google and HathiTrust to digitize the library collections of several universities. In the case brought by the Authors 

Guild against Google, the District Court Judge recognized that orphan works remain ‘‘a matter more suited for Congress than this 

court.’’ As the judge explained, ‘‘the questions of who should be entrusted with guardianship over orphan books, under what terms, 

and with what safeguards are matters more appropriately decided 

by Congress than through an agreement among private self-interested parties.’’ 

Ongoing uncertainty regarding how to deal with orphan works 

also played a part in a related case brought by the Authors Guild 

against HathiTrust where the inability of several universities to 

create a procedure that accurately identified orphan works resulted 

in suspension of efforts to digitize these works. This would seem to 

confirm that orphan works continue to be a problem in need of a 

solution, and I look forward to hearing from our witnesses on what 

we should do. 

To the extent that some of you may feel that congressional action 

is not needed, what are other workable options, particularly in response to judicial requests for congressional action? 

Mass digitization may pose a similar dilemma. Some stakeholders may take the view that no action is needed, while others 

may firmly believe that this issue should be addressed. There are 

unquestionable benefits to be gained from mass digitization in certain circumstances. For example, digitization allows print-disabled 

individuals unprecedented access to books that enables them to 

compete on equal footing with their sighted peers. It may also enhance the ability to collect and preserve fragile or out-of-production 

works. At the same time, bulk digitization involves millions of 

copyrighted works, some of which are orphan works, and raises 

complex questions about protections for creators of these works and 

other rights holders. 

Congress has afforded libraries and archives special privileges in 

the Copyright Act in recognition of the unique and critical role they 

play in capturing and preserving the Nation’s rich history. Rules 

sought and potentially created by and for these institutions may be 

appropriate for other users for uses of copyrighted works. Mass 

digitization also presents new and different opportunities and risks 

related to online access to copyrighted works that raise critical and 

complicated questions that are not presented by analog copies. 

These are just a few of the many issues that we will begin grappling with today. As we do so, we should take note of the Copyright 

Office’s ongoing review of orphan works and mass digitization. 

That process, which started with a Notice of Inquiry in 2012 and 

included 2 days of public roundtables just last month, will provide 

useful guidance. I look forward to reviewing the Copyright Office’s 

recommendations. 
4 

In the meantime, our witnesses provide a diversity of perspectives and a wide range of experience, and I look forward to hearing 

from them today. 

With that, I thank the Chairman again, and I yield back the balance of my time. 

Mr. COBLE. I thank the gentleman. 

Without objection, opening statements of other Members will be 

entered into the record. 

I will ask the witnesses, if you will, to please rise and raise your 

right hand. We traditionally swear in our witnesses. 

[Witnesses sworn.] 

Mr. COBLE. Thank you. You may be seated. 

Let the record show that each of the witnesses responded in the 

affirmative. 

Ms. Chu, you want to introduce the last witness. Right? 

Ms. CHU. Yes. 

Mr. COBLE. All right. 

For the third time, I want to say how distinguished the panel before us is, and we appreciate your being here. 

You will see two clocks on your table. The green light—you may 

go full ahead. When the light turns amber, that is your warning 

that you are running out of time and you will have 1 minute at 

that point. If you can wrap up on or about 5 minutes, that would 

be appreciated. You will not be severely punished if you fail to do 

that, but we try to keep within the 5-minute range up at this table 

as well. 

Our first witness today is Mr. Gregory Lukow, Chief of the Audio 

Visual Conservation Center at the Library of Congress, located at 

the Packard Campus in Culpepper, Virginia. Mr. Lukow has been 

with the Library of Congress for over a dozen years, overseeing the 

development of the Packard Campus and its preservation programs. Mr. Lukow received his degree in Broadcast Journalism and 

English from the University of Nebraska and his M.A. in Film and 

Television Study from UCLA. And I am sure, Mr. Lukow, you are 

an ardent Husker fan, I suspect. There was no great risk, I assumed, in saying that. 

Our second witness is Mr. Richard Rudick, Co-Chair of the Section 108 Study Group. Mr. Rudick retired from John Wiley and 

Sons, where he served for 26 years, including as senior Vice President and General Counsel. Mr. Rudick received his J.D. from the 

Yale School of Law and is a graduate of Middlebury College. Mr. 

Rudick, good to have you with us. 

Our third witness is Mr. James Neal, Vice President for Information Services and University Librarian at Columbia University. Mr. 

Neal oversees 22 libraries at Columbia and has participated in a 

wide range of professional roles in the library community, including 

the Section 108 Study Group. Mr. Neal received his B.A. in Russian Studies at Rutgers and his two masters degrees in History 

and Library Science from Columbia. 

Our fourth witness is Ms. Jan Constantine, General Counsel of 

the Authors Guild since 2005. Ms. Constantine is responsible for 

representing the interests of the Authors Guild in all legal matters. 

Ms. Constantine received a B.A. from Smith College and is a graduate of George Washington University’s National Law Center. 
5 

Our fifth witness is Mr. Michael Donaldson, partner at Donaldson & Callif, LLP. Mr. Donaldson is the former President and 

board member of the International Documentary Association where 

he was an advocate for the interests of documentarians. Mr. Donaldson earned his Bachelor of Science degree from the University 

of Florida and his J.D. from the University of California at Berkeley. 

I am now pleased to recognize the distinguished lady from California who has asked permission to introduce our sixth and final 

witness. 

Ms. CHU. Thank you, Mr. Chairman. 

I have the pleasure of introducing Professor Jeffrey Sedlik, who 

is the President and CEO of PLUS Coalition, a nonprofit that seeks 

to connect images to rights holders and rights information. He is 

also an educator at the Art Center College of Design in Pasadena, 

California, and the City of Pasadena is in my district. In addition, 

I am delighted to say that Professor Sedlik is my constituent. 

Thank you, Professor Sedlik, for testifying today and representing 

the voices of independent visual artists. 

Mr. COBLE. I thank the gentlelady. 

Mr. NADLER. Mr. Chairman? 

Mr. COBLE. Yes, sir. 

Mr. NADLER. Could I simply give a special welcome to Mr. Neal 

since he represents Columbia, and I am a proud alumnus of Columbia, as is my son, and since the last reapportionment, it is now 

in my district, so I want to give a special welcome. 

Mr. COBLE. This has no relevance to today’s hearing, but I will 

be very brief in sharing it with you. 

I was invited to address a group at the Columbia School of Law 

some recent years ago, and I had to decline, first, because there 

were scheduled votes on the House Floor that night. That was altered and then the House votes were in fact—I declined the invitation because we thought there were going to be House votes. There 

were House votes. I declined. And the lady said to me, ‘‘Well, we 

have already printed the invitations and your name is on the invitation.’’ I said, ‘‘I will miss the vote and I will be at Columbia,’’ 

which I did. 

The next day when I returned to the House Floor, I went to the 

Speaker who was in the chair, and I said, ‘‘May I explain how I 

would have voted had I been here last evening?’’ He says, ‘‘Why 

were you not here?’’ And, in a condescending tone, I said, ‘‘I was 

delivering a lecture at the Columbia School of Law.’’ [Laughter.] 

He said, ‘‘Have they lost their minds?’’ [Laughter.] 

So with that, Mr. Lukow, why do you not kick us off? 

Mr. Lukow has requested that we show a little over 2 minutes, 

I think 2 minutes and 15 seconds, of video which I think is in 

order, and we will do that now. 

[Video shown.] 

Mr. COBLE. Mr. Lukow, I would like to some day visit the Culpepper Campus, but we can talk to you about that subsequently. 

But thank you for making this available to us. 

Prior to hearing from our witnesses, I have noticed that the 

Chairman of the Judiciary Committee has arrived, and I am 
6 

pleased to recognize the distinguished gentleman from Virginia, 

Mr. Goodlatte, for his opening statement. 

Chairman GOODLATTE. Well, thank you very much, Mr. Chairman, for holding this hearing and for your forbearance. 

This afternoon, the Subcommittee will hear about the preservation and reuse of copyrighted works. This issue is becoming a more 

urgent issue for American culture as copyrighted works deteriorate 

with age. Last spring, I visited the Packard Campus of the Library 

of Congress in Culpepper, Virginia and witnessed firsthand not 

only the depth of our Nation’s great cultural history, but also the 

preservation challenges caused by the passage of time. I encourage 

all the Members of the Committee—it is not that great a distance 

out to Culpepper, and it is a fascinating experience. So, I commend 

it to you, and hope Members will get out there, along with the 

Chairman. 

The head of this facility is testifying this afternoon, and he has 

brought with him some examples of the deterioration caused by age 

and poor storage conditions. 

In the 1976 Copyright Act, Congress included several provisions 

in section 108 to address preservation and reuse issues. However, 

like many of the 1976 provisions, section 108 is woefully outdated 

for the digital age. 

In 2005, the Library of Congress and the Copyright Office convened a group of experts to make recommendations on updating 

section 108. Two of the participants in the Section 108 Study 

Group are testifying today. As they will no doubt highlight, agreement was reached on some, but not all, potential updates. 

Recently some have suggested that instead of updating section 

108 for the digital age, preservation activities should be covered by 

the fair use provisions of section 107. While it is probably true that 

there are clear-cut cases in which fair use would apply to preservation activities, fair use is not always easy to determine, even to 

those with large legal budgets. Those with smaller legal budgets or 

a simple desire to focus their limited resources on preservation may 

prefer to have better statutory guidance than exists today. 

Another issue we will look at today is how to best allow access 

to works that may have been abandoned. In 2006 and 2008, this 

Committee considered orphan works legislation, and the Senate 

passed similar legislation in 2008 by a voice vote. In a sign of how 

quickly technology and business models advance, since then a coalition of photographers, visual artists, and potential orphan works 

users have worked together to develop a technology platform to better enable the connection of copyright owners of potential orphan 

works with those interested in using them. 

In addition, none of the earlier legislation addressed the mass 

digitization issue. At a minimum, Congress needs to ensure that 

any legislative activity in this area can accommodate such rapid 

progress. 

So I look forward to hearing more about these and other preservation and reuse issues from our witnesses. I welcome all of you 

today. And I yield back to the Chairman. 

Mr. COBLE. I thank the Chairman. 
7 

Mr. Lukow, we will start with you. Again, if you all can keep a 

sharp lookout on the clocks, we will be appreciative. You are recognized, sir. 

TESTIMONY OF GREGORY LUKOW, CHIEF, PACKARD CAMPUS 

FOR AUDIO VISUAL CONSERVATION, LIBRARY OF CONGRESS 

Mr. LUKOW. Thank you. Thank you, Chairman Goodlatte, Chairman Coble, Ranking Member Nadler, and the Members of the Subcommittee. I appreciate very much the opportunity to participate in 

today’s hearing on preservation and reuse of copyrighted works. 

As Chief of the Library of Congress Packard Campus for Audio 

Visual Conservation, this statement will necessarily focus on challenges facing the Library’s audiovisual collections, and those samples that both Chairman Goodlatte and Chairman Coble mentioned 

of deteriorating media are sitting up there. I think you will appreciate the fact that they are up there because if we handed them 

around, they would probably fall apart in your hands. 

However, the issues raised by this timely hearing, including orphan works, section 108, and mass digitization, profoundly impact 

the Library’s ongoing attempts to acquire, preserve, and make 

available the American cultural record contained in the 158 million 

items in all their varied formats and collections at the Library. 

Though we have made great progress in preserving substantial 

parts of our collections, thanks to the support of the U.S. Congress 

and the American public, we face numerous formidable impediments in making this content available for research and scholarship. Copyright law restricts libraries’ abilities both to preserve collections, especially sound recordings and audiovisual works, and to 

provide access to preserved works. 

We face a cruel irony. The promising advent of digital technologies has enabled us to preserve vastly more of this heritage for 

the long-term future, but the promise is often not fully realized because the public cannot access much of this content beyond the controlled environment of our Washington, D.C. reference centers. 

Much of the vast film, television, radio, and broadcasting and recorded sound materials in our collections have been out of print for 

decades and are, in effect, orphaned works in that the companies 

that own rights to these materials do not currently make them 

available to the public from lack of commercial incentive to do so, 

absent of business models, or other reasons. 

Our statement focuses not only on orphan works, whose status 

results from ownership questions, but also on what we call these 

‘‘marketplace orphans.’’ Although such marketplace orphans have 

little or no commercial value to their rights holders, many are of 

great historic, cultural, or aesthetic value to scholars, educators, 

and the general public. Examples include films from the silent era 

and thousands of educational, independent, avant-garde, and amateur motion pictures, early television and radio broadcasts, especially local productions, and sound recordings of all types, including 

ethnic recordings, monaural classical music, operatic recordings, 

poetry, and other spoken word recordings. 

The Library recommends three priorities for statutory change. 

First, modernize section 108 so the libraries and archives can fulfill their mission to preserve audiovisual and other materials. Sev-
8 

eral parts of section 108 do not apply to audiovisual materials. As 

a result, these items do not enjoy the certain valuable preservation 

and access exceptions expressly granted to other works. Section 108 

needs to be updated for the digital age with language applicable to 

all formats. 

In addition, subsection 108(c), which was designed to help libraries and archives preserve their materials, in reality only allows 

these institutions to preserve materials already damaged or in a 

state of deterioration. In order to preserve fragile, at-risk audiovisual materials, the Library must be able to legally make copies 

of materials before they are damaged or deteriorating. 

Our second recommendation: expressly address the orphan works 

issue in copyright law. Our inability thus far to solve this issue is 

a key factor leading to the unavailability of countless parts of our 

moving image and recorded sound heritage. We need a commonsense, compromise legislative solution to this vexing problem. 

And third, and by no means least, federalize pre-1972 sound recordings. Given the historical development of U.S. copyright law, 

these works have never been brought under Federal copyright protection. This anomaly creates many vexing preservation, access, 

and rights issues as the works are covered by common law or a 

myriad of disparate State laws. Pre-1972 sound recordings must be 

brought under the Federal copyright regime, a recommendation 

that was voiced in the U.S. Copyright Office’s 2011 report on this 

topic. 

With that, I will conclude my remarks. I will refer you to my 

written testimony for a number of examples of these kinds of categories of orphan works or marketplace orphans. 

And you all, indeed, have a standing invitation to visit the Packard Campus. I hope you will do so. Thank you very much. 

[The prepared statement of Mr. Lukow follows:] 
9 
10 
11 
12 
13 
14 
15 
16 
17 
18 
19 
20 
21 
22 
23 
24 
25 

Mr. COBLE. Thank you, Mr. Lukow. 

Mr. Rudick? 

TESTIMONY OF RICHARD S. RUDICK, CO-CHAIR, 

SECTION 108 STUDY GROUP 

Mr. RUDICK. Distinguished Chairman Coble and Goodlatte, 

Ranking Member Nadler, and Members, thank you for this invitation. 

As you know already, I address you as Co-Chair of the Section 

108 Study Group convened by the Library of Congress to recommend changes in that section of the 1976 act which was enacted 

when the photocopy machine was the hot, new technology that 

challenged copyright. Half of our members came from the library, 

archives, and museum community, and half from the content and 

creative community. 

These two communities are part of a larger community, held by 

common bonds, driven in part by common goals, and bedeviled by 

similar challenges. In the end, we both serve the public interest by 

making accessible art, literature, and science. We both face serious 

economic challenges, and we have both had to redeploy our assets 

and revise our operations to deal with the opportunities and challenges presented by new digital technologies. 

We are interdependent. Libraries are important customers of 

content providers, and without the work of authors, artists, publishers, and other media producers fueled by copyright, libraries 

could no longer exist. This is a family quarrel. 

In spite of these tensions by distinguishing between what we 

needed and what we wanted and motivated by a deep-shared common concern for the need for addressing digital preservation issues, 

we were able to agree on a number of recommendations, including 

the following: adding museums as eligible institutions, allowing 

qualified institutions to copy digital material for preservation 

whenever there is risk of loss or disintegration without waiting for 

after it occurred, allowing libraries and archives to preserve, reproduce, and make available publicly available online content not restricted by access controls such as websites. 

With respect to mass digitization, after some discussion in 2005, 

we felt the time was not ripe. It is very ripe now in the wake of 

HathiTrust and Google. I think we need legislation and need to 

promote voluntary programs, including collective licensing which 

could facilitate such projects both in the not-for-profit and for-profit 

sectors. 

The study group considered or discussed whether commercial 

availability should be a factor for purposes of section 108, in effect, 

providing different rules for works offered in commerce and those 

either not intended for commercial use or no longer available commercially. Since then, this concept has been utilized or is being considered as a factor for various purposes, for example, in the Google 

Books settlement, which was rejected by the District Court in New 

York and in the European Union. Whether in the revision of section 108 or in possible legislation relating to mass digitization, I 

think we should consider this concept carefully. 

Libraries have come to rely heavily on fair use under section 107, 

in part because of the inadequacies of 108 in the digital era. But 
26 

reliance on section 107 for purposes that go far beyond those originally conceived or imagined invites, as we have seen, expensive litigation with uncertain results. A provision so dependent on balancing and analyzing individual facts and circumstances in specific 

situations is not well suited to the major projects typical of mass 

digitization, and the doctrine of fair use does not begin to address 

many of content owners’ serious concerns such as security. 

From a practical standpoint, as the study group pointed out, an 

updated and balanced section 108 dealing with digital issues would 

complement the flexibility of section 107 by providing straightforward guidance, predictability, and clarity in specific situations 

for working librarians and others. 

Clarity is the handmaiden of certainty, and an important function of the law is to provide rules which, if followed, keep us out 

of trouble. Oliver Wendell Holmes, Jr. once observed that, ‘‘Certainty generally is illusion and repose is not the destiny of man.’’ 

Surely repose is not our destiny, and it may be that absolute certainty is generally an illusion. But a level of certainty is a prerequisite for doing business, whether your business is that of a librarian, a teacher, or a student, or that of a publisher, a writer, 

or an artist. 

I appreciate the opportunity to speak to you on these issues. I 

hope that legislation which facilitates the preservation and reuse 

of copyrighted works will be enacted. 

And if I have a few more minutes, I have read my good friend 

Jim Neal’s testimony, and I agree with much of what he said. But 

he answers a question which I have been asking, which is, ‘‘Why 

do the library associations and the major libraries not support an 

updated, all-dancing, and all-singing 108 to deal with the digital 

world?’’ And I think I see the answer, which is there have been a 

number of lower court decisions that support a very expansive view 

of fair use. I think that horse is running well for them. But that 

is not how we should make policy. That is Congress’ job. And what 

we should do is whatever we can to make life easier and better for 

working librarians, consistent with the need to enable people who 

scribble for a living to survive and thrive, and also university 

presses and other publishers. In the end, we have to do what is 

right for the American people, and the hell with what horse is 

ahead right now. 

[The prepared statement of Mr. Rudick follows:] 
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Mr. COBLE. Thank you, Mr. Rudick. 

Mr. Neal? 

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

UNIVERSITY 

Mr. NEAL. Chairman Coble, Ranking Member Nadler, Members 

of the Subcommittee, thank you for this opportunity to testify 

today. I am a working librarian. 

I ask that my full statement be included in the record. It has 

been endorsed by U.S. library associations. 

I will address four issues: first, the importance of library preservation; second, how the library exceptions in section 108 of the 

Copyright Act supplement and do not supplant the fair use right 

for important library activities such as preservation; third, how 

changes in the legal landscape have diminished our need for legislation concerning orphan works; and finally, my perspective on the 

HathiTrust case. 

My overarching point is that the existing statutory framework, 

which combines the specific library exceptions in section 108 with 

the flexible fair use right, works well for libraries and does not require amendment. 

Before diving into copyright law, I would like to make clear to 

the Subcommittee that libraries are not seeking a free ride. U.S. 

libraries spend over $4 billion a year acquiring books, films, sound 

recordings, and a variety of other materials. Our objective is to 

maximize the benefit the American people receive from this enormous investment that they have made. We want to make sure that 

this material is accessible to current and future generations of 

users. Libraries think in terms of centuries, not quarterly royalty 

reports. 

First, the importance of preservation. Libraries engage in preservation activities to prevent the loss of vital cultural, historical, and 

scholarly resources. Much of this material lacks commercial value 

and publishers may not have the interest, the financial incentive, 

or the technical expertise to engage in preservation activities. 

At Columbia, there are vast collections that demand preservation 

which may include shifting formats as technologies become obsolete. 

For example, the 9/11 oral history project focuses on the aftermath of the destruction of the World Trade Center. This project 

captured 900 hours of interviews recorded on digital media. 

Another example is our human rights archive that documents 

the condition and progress of human rights around the world. Columbia is making complete copies on an ongoing basis of more than 

600 websites from around the world. The archive contains 60 million pages, including many short-lived websites from countries in 

conflict or with repressive governments. 

In short, digital resources are not immortal. They are in formats 

that are more likely to cease to exist and must be transferred to 

new digital formats repeatedly as technology evolves. This means 

that libraries require robust applications of flexible application exceptions, such as fair use, so that copyright technicalities do not 

interfere with our preservation mission. 
33 

Second, section 108 and fair use. Section 108 has proven essential to the library preservation function. The fact that section 108 

may reflect a pre-digital environment in our view does not make 

it obsolete. It provides libraries and archives with important certainty with respect to the activities it covers. Like Dick Rudick, I 

was a member of that study group. The report did not resolve 

many important issues such as orphan works or mass digitization, 

nor did it propose statutory language in areas where there was 

some agreement. 

In addition to section 108, libraries rely upon fair use to perform 

a wide range of other completely noncontroversial practices. Libraries make preservation copies of musical works and motion pictures, 

categories not covered by 108. School libraries make multiple copies of appropriate portions of work for classroom use, not covered 

under section 108. As Congress made clear with the savings clause 

in section 108, it does not limit the right of fair use. 

Third, orphan works. The significant diversity of opinions expressed to the Copyright Office in a Notice of Inquiry in 2013 and 

the recent roundtables indicate that it will be extremely difficult to 

forge a consensus on best approaches to resolve orphan works 

issues. Fortunately, fair use allows libraries to appropriately preserve orphan works and make them available appropriately to researchers and the public. 

Fourth, the HathiTrust litigation. HathiTrust is a consortium of 

libraries that preserves digitized works. There are several uses of 

the Hathi database: preservation, searches to identify where words 

or phrases appear, and full-text access only for the print-disabled. 

I want to emphasize that only the print-disabled have access to the 

full text of copyrighted works in the HathiTrust repository. The 

central legal issue was whether the copies made by Hathi were a 

fair use. 

Finally, legislative recommendations. Updating section 108 in my 

view is not necessary, as is an orphan works amendment, at least 

for the work of libraries. Other amendments may be appropriate 

with respect to statutory damages, the coverage of museums, contractual restrictions on copyright exceptions, which is a fundamental issue for libraries, and broader exceptions for people with 

disabilities. 

Thank you, Mr. Chairman. 

[The prepared statement of Mr. Neal follows:] 
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Mr. COBLE. Thank you, Mr. Neal. 

Ms. Constantine? 

TESTIMONY OF JAN CONSTANTINE, GENERAL COUNSEL, 

THE AUTHORS GUILD, INC. 

Ms. CONSTANTINE. Thank you, Chairman Coble, Ranking Member Nadler—I would like equal time. I too am a constituent. So 

thank you for all you do in New York—and Members of the Subcommittee. 

My name is Jan Constantine, and I am General Counsel for the 

Authors Guild, the largest society of published authors in the country. We have a 100-year history of contributing to debates before 

Congress on the proper scope and function of copyright law. It is 

an honor and a privilege to be here today for the Authors Guild to 

continue to serve that role before this Committee. 

Mass digitization and orphan works are two issues that I personally have spent the last 8 years grappling with. We have two active, major lawsuits addressing these very topics, one against 

Google and one against the HathiTrust, a consortium of university 

libraries. In these two lawsuits, we are striving to protect authors’ 

rights to their works against institutions vastly larger and more 

powerful than ourselves. 

Google’s chutzpah in offering libraries free e-books of other people’s property in exchange for access is truly awesome. And once 

HathiTrust had possession of these e-book editions of many of the 

world’s copyrighted literary works, it was awfully tempting to do 

something with them. So, HathiTrust sidestepped Congress and 

started its own orphan works project. 

This is not how it is supposed to be. Copyright is part of our Constitution. It is vitally important to our culture. Congress has carefully crafted rules for copying, including detailed rules for library 

copying. Ad hoc approaches to things as momentous as mass 

digitization of books or the distributing of so-called orphan books 

is wildly inappropriate. To me, these look more like exercises in 

eminent domain, Google or HathiTrust versions of eminent domain. 

But at least with real eminent domain, the property owner gets 

paid something. 

We do not like suing libraries. We do not even like suing 

Google—or maybe a little. [Laughter.] 

But we have better things to do and these issues are not best decided in the courtroom. These are major public policy issues and 

Congress, particularly this Committee, should be setting the rules. 

One thing I have learned during these 8 years is that the orphan 

works problem is vastly overstated, at least for books. A book has 

all of its property owner information printed right in it. The Copyright Office has all sorts of ownership information through its registration system. 

And HathiTrust’s orphan works program quickly showed that 

finding rights owners to so-called orphans can be a snap. 

HathiTrust had an elaborate protocol for finding rights owners. It 

did not work. But, we tried a different approach. We used Google 

which, in spite of the chutzpah, is really quite handy, and we were 

finding rights owners up, down, and sideways in moments. People 

usually do not die without a trace, at least authors of registered 
56 

copyrights do not regularly die without leaving some clue as to 

their heirs. 

Take James Gould Cozzens, the Pulitzer Prize winning novelist. 

He was on HathiTrust ‘‘orphan row.’’ That is what we called their 

list of orphan books that it was getting ready to distribute to 

250,000 or so people. Free e-books, someone else’s property. And 

who was that someone else? Harvard University. The Copyright Office says that Harvard was the owner. 

But I am not here to rehash the past. Let us talk solutions. 

We need a way forward that respects all stakeholders, authors, 

publishers, libraries, and especially readers. So, we are asking Congress to allow for the creation of a collective rights licensing organization to deal with mass digitization and orphan works. Collective 

licensing organizations such as ASCAP and BMI make sense when 

there is a limited set of rights to be licensed and it is too costly 

to ask individuals whether a use is okay. If you run a radio station 

and want to broadcast some music, it is impractical to contact 

every rights holder for each day’s playlist. So you get licenses from 

ASCAP and BMI. 

For mass digitization of books, one also needs a simple, one-stop 

shopping solution. The benefits would be enormous and pave the 

way for a true national digital library. This has to be done carefully, however. The licensing would have to be strictly limited in 

scope. Distributing print books or e-books would not be part of the 

package. In-print books would not be part of the package either. 

We should not be disrupting the commercial market. 

Instead, this is about displaying out-of-print books, and there are 

millions of them in our Nation’s libraries. We are talking displaying, not downloading or distributing, displaying books on computer screens. This is about providing access to those books at 

every college, university, community college, public school, and 

public library in the country so those institutions could provide access to the vital communities they serve. Every student could have 

a desktop access to a collection as large as their State’s university. 

It is a ‘‘level the playing field’’ game-changer, and authors would 

be compensated for those uses, as they should, rather than being 

brushed aside by those who should know better. 

There are other important things that would go with collective 

licensing. It would have to be non-compulsory. If an author wants 

out, the author gets out. It is the author’s literary property after 

all. The author gets to say ‘‘no.’’ And there would also have to be 

a referee, someone to go to if the licensing organization and an institution cannot agree on a reasonable fee. That is a feature of collective licensing organizations around the world. 

Outside of the U.S., collective licensing solutions for books in particular have been met with great success. 

In closing, I look forward to sitting down at the table with other 

stakeholders, libraries, users, creators, and other media, even 

Google. What the heck. This can be worked out. The benefits are 

just too enormous to pass up. This is about bringing our great research libraries to the desktops and laptops of students and library 

patrons across the country. A true digital library is within our 

grasp. We should go for it now. And I think once we agree on the 

shape of the table, I am sure we can get it done. 
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I would like to thank this Committee for holding this hearing 

and inviting us to participate, and I refer you to my written testimony. Thank you very much. 

[The prepared statement of Ms. Constantine follows:] 
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Mr. COBLE. Thank you, Ms. Constantine. 

Mr. Donaldson, I recognize Mr. Lukow’s football Huskers. I failed 

to mention your basketball Gaitors. For that, I want to make sure 

that I apologize. I now recognize you. 

TESTIMONY OF MICHAEL C. DONALDSON, ESQ., 

PARTNER, DONALDSON & CALLIF, LLP 

Mr. DONALDSON. My name is Michael Donaldson, representing 

documentary filmmakers and independent filmmakers really across 

the country. 

I know this is not the sexiest thing on your agenda, so I want 

to also thank you for just showing up today because this is an incredibly important issue, particularly to documentary filmmakers. 

Our office worked on over 170 documentaries in the last 12 

months. Only half a dozen of them escaped without facing the frustration of orphan works, something that can genuinely not be found 

after a very serious effort. 

Take, for instance, William Saunders who is making a documentary about his 89-year-old grandfather, a seminal songwriter in the 

country-western field in the 1960’s with recordings by Dean Martin 

and Tommy Lee Jones and Johnny Cash. His songs were sold to 

publishers. Those publishers are now out of business. His grandson, with tremendous motive and tremendous effort, has not been 

able to find who the rights holders are on his grandfather’s own 

songs. So his documentary, which should have richly embraced his 

grandfather’s music, is having to rely on fair use, which means he 

can use bits and pieces but not what he would like to use to make 

this documentary about his grandfather be all it could be. 

It is also an even bigger problem for feature filmmakers who do 

not have a fair use workaround. The UCLA film and television archive, which is second only to the Library of Congress in its size, 

has some 200,000 titles in its archive of feature films. Of those, 

over 10,000 are orphans. With all the facilities of UCLA, they were 

not able to find the authors, that is, the copyright owners, of these 

10,000 films. So they are only available for research, which means 

that these wonderful stories that somebody thought was worth saving, collectors and archivists, are not available for the retelling or 

for making sequels. These are 10,000 untold stories, and if you 

match them up with what is in the Library of Congress, you easily 

get into six figures, and maybe seven, but I defer to the Librarian 

for that. 

It also affects television. A wonderful series a few years back 

called Fallen Angels—every episode was based on the writings of 

one of those wonderful film noire writers like Dashiell Hammett or 

Raymond Chandler or Mickey Spillane, but also on some lesser 

known writers. And the producer of that television series found 

many, many stories in pulp magazines and old books that they 

wanted to make into a television episode. They could not because 

there is no fair use workaround, and if you do not have the underlying rights to those books and articles, you cannot make a derivative work from them. 

So what is the solution? The path out of this very frustrating forest of problems for independent filmmakers and documentarians is 

a substantial search, and I by that mean a genuine substantial 
79 

search which obviously would include a Google search and a lot of 

other things. If they make a substantial search and the owner 

comes up later, they should get an immediate payment of a reasonable license fee. If the search was not substantial, if they did not 

use Google or some of the other tools available like PLUS, which 

is emerging, then the copyright owner has the full panoply of ability to go after statutory damages, an injunction, the whole panoply 

of remedies that is available currently. 

We are opposed for films to have any kind of a collective bargaining because what happens is what happened in Canada. I 

mean, they have collected what, $70,000 in 12 years and nobody 

showed up to collect it? So you have this money sort of sitting there 

without any real benefit to anybody except the bureaucracy that 

set it up. 

We are immensely hopeful that this Committee moves forward 

with a legislative solution for the orphan works problem. 

Thank you again. 

[The prepared statement of Mr. Donaldson follows:] 
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Mr. COBLE. Thank you, Mr. Donaldson. 

Mr. Sedlik? 

TESTIMONY OF JEFFREY SEDLIK, PROFESSOR, PRESIDENT 

AND CHIEF EXECUTIVE OFFICER, PLUS COALITION 

Mr. SEDLIK. Chairman Goodlatte, Chairman Coble, Ranking 

Member Nadler, Members of the Subcommittee, thank you for the 

opportunity to testify today on the preservation and reuse of copyrighted works. 

Chairman Goodlatte, thank you for referring to PLUS and praising our efforts in your opening statements. 

And, Congresswoman Chu, thank you very much for the personal 

introduction. 

In addition to my role as President and CEO of the nonprofit 

PLUS Coalition, I am a professional photographer with 30 years of 

experience. I am also an educator, having served for 20 years as 

a professor at the Art Center College of Design in Pasadena, California. 

While much of the public discussion and debate on copyright 

issues focuses on big business, we must not forget that copyright 

is the engine of free expression for independent visual creators and 

other authors and that licensing the use and reuse of their copyrights, as provided under title 17, is typically the only means by 

which such creators are able to support themselves and their families and to afford to create new works for the ultimate benefit of 

the public. 

Despite the significant ongoing efforts of visual artists to protect 

their works by appending identifying information to each new work 

prior to distribution, this information is often lost or removed upon 

distribution of the works. With instantaneous worldwide distribution of images occurring upon first publication, millions of newly 

orphaned images are injected into the global ecosystem on a daily 

basis. As a result, publishers, museums, libraries, researchers, documentary filmmakers, and the public dedicate considerable time 

and resources to attempts to identify and contact rights holders in 

order to seek permission to make use of visual works, often in significant quantities. 

With demand for visual content increasing exponentially, many 

organizations now face the daunting challenge of managing millions of visual works. At that scale, the management of image 

rights seems an impossible challenge, but solving this challenge is 

entirely possible. In the not too distant past, there were no bar 

codes on any product in any store. There were no ISBN’s in any 

book on any shelf. These and other standardized, persistent identification systems are now ubiquitous, providing instantaneous global access to that vital information and successfully serving as the 

backbone for commerce and other activities. 

The lack of a similar identification system for visual works is at 

the root of many of the most significant challenges faced by image 

creators, publishers, the public, and the cultural heritage community. By employing persistent identifiers, in combination with 

image recognition technologies, in a system of interconnected registries, we can provide instantaneous automated global access to 

image rights information. 
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At the suggestion of the Copyright Office, the PLUS Coalition 

was founded in 2004 as a multi-stakeholder initiative charged with 

addressing this challenge. A nonpartisan, industry-neutral, nonprofit organization, PLUS is operated by and for all communities 

engaged in creating, distributing, using, and preserving images. 

Members of the coalition include publishers, museums, libraries, 

educational institutions, advertising agencies, design firms, photographers, illustrators, stock photo libraries, standards bodies, and 

other interested parties spanning 117 countries. This diverse spectrum of stakeholder communities has established common ground 

by jointly founding and operating the PLUS Coalition as a vehicle 

for intense collaboration on a tightly focused mission to connect images to rights holders and rights information on a global scale. 

This Committee has consistently reminded and encouraged 

stakeholder communities to cooperate in addressing and resolving 

the ever-present challenges at the nexus of copyright and technology. I am glad to report to the Committee that the PLUS Coalition, after 10 years of success, is a real-world example of the remarkable progress that can be achieved by stakeholder cooperation. 

Toward that success, the PLUS Coalition first established a system of standards facilitating the identification of rights holders and 

the communication and management of image copyright information. Essentially, the PLUS standards provide the equivalent of a 

UPC or bar code system for visual works. 

With the global rights language in place, we are now developing 

the PLUS Registry at PLUSregistry.org as a nonprofit, international hub for image rights information, connecting all registries 

in all countries. Using the PLUS Registry, anyone in any country 

will be able to instantly identify the creator, rights holder, and descriptive information associated with any registered visual work, 

even in the event that the work was distributed many years ago 

and bears no identifying information. 

Museums and libraries and archives will use the PLUS Registry 

to facilitate preservation and to maximize public access. Creators 

and other image rights holders will use the PLUS Registry to ensure that they can be easily found and contacted by anyone seeking 

information about their visual works. Publishers and other businesses will use the PLUS Registry to identify and contact image 

rights holders and to manage image rights associated with vast 

quantities of works. Search engines will use the PLUS Registry to 

automate rights management and to allow individuals and businesses to make informed decisions about using visual works. 

Persistent attribution is not only the key to ensuring the survival 

of independent visual artists, but is vital to the success of all rights 

holders and distributors engaged in licensing the use and reuse of 

visual works. Importantly, persistent attribution, in combination 

with fair use and other exceptions, is also the key to ensuring that 

museums, libraries, and archives are best able to preserve visual 

works and to maximize public access to our cultural heritage. 

Thank you for your time and consideration. I look forward to taking your questions. 

[The prepared statement of Mr. Sedlik follows:] 
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Mr. COBLE. Thank you, Mr. Sedlik. Thanks to each of you. 

We try to apply the 5-minute rule to ourselves. So if you could 

make your responses as terse or as brief, at the same time responding to the question, we would appreciate that. 

Mr. Lukow, what are the most important changes that need to 

be made to update section 108 for purposes of preservation and 

reuse of copyrighted works? 

Mr. LUKOW. Well, we would certainly like all pre-1972 sound recordings federalized and, therefore, along with other audiovisual 

works, brought under all paragraphs of section 108. We would like 

section 108 to allow us to provide copies to researchers for audiovisual and sound recording materials. We would like it to allow us 

to preserve materials in order to save them for future generations 

before they are visibly deteriorating. Those three things alone are 

at the heart of what we are looking for from section 108. 

Mr. COBLE. I thank you for that response. 

Mr. Neal, is there hope for users and owners to be able to agree 

on how orphan works and mass digitization efforts should be treated under the law? 

Mr. NEAL. I believe that there are many opportunities for the 

user community and the content community to work together. I 

want to emphasize that the largest digital collection that exists in 

every library in this country is the material that we license and 

purchase from publishers and vendors. A very small percentage of 

our digital collections represent materials that we have converted, 

we have digitized, or that we have captured as born digital information. I think there are many opportunities from us to learn from 

each other, as we did in the 108 Study Group process, and to build 

the right understandings and working relationships that allow me 

as a librarian to make content available to my students and my 

faculty in responsible and appropriate ways. 

Mr. COBLE. I thank you, sir. 

Mr. Sedlik, I have consistently supported photographers. How 

have their business models been altered by digitization for photographers? Are they flourishing or still adapting to the digital age? 

Mr. SEDLIK. Chairman Coble, the photographers are still adapting to the digital age and making their best efforts to identify their 

works. The most challenging aspect of being a photographer today 

is ensuring that your works are identifiable after they leave your 

hands. If we can achieve that, the photographers will be able to 

make a living from their creative works during their copyright life 

and society will benefit to the maximum. 

Mr. COBLE. Thank you, sir. 

Ms. Constantine, should a revision of section 108 include specific 

provisions for orphan works or mass digitization, or should orphan 

works and mass digitization be covered by different provisions of 

law? 

Ms. CONSTANTINE. We would think that if our solution, collective 

licensing, was implemented and that there was money to be had 

for the uses, then that would be a solution. 

With respect to section 108 and mass digitization, it was, as my 

testimony references, not—it was addressed to some extent with respect to the technology of photocopying way back in the 1960’s at 

the hearings, and mass digitization was not taken into account in 
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the current law but it was anticipated, and I think that 108 covers 

it adequately now. But I do think that a collective licensing solution would be the best solution for both orphan works and for mass 

digitization. 

Mr. COBLE. I thank you for that. 

Mr. Rudick, I have time for one more question, and you will be 

my clean-up hitter. Do you want to add anything generally? 

Mr. RUDICK. Your question was what? 

Mr. COBLE. I said I have time for one more question, and I will 

call on you to be clean-up hitter. Do you want to add anything generally? 

Mr. RUDICK. Yes. With respect to the question that Jan just answered, section 108 only applies to libraries, archives, and I hope 

someday museums. Orphan work issues and mass digitization 

issues go beyond libraries. There are for-profit mass digitization 

programs. And many of us have orphan work problems, including 

authors and publishers, because we are diligent about clearing 

rights and sometimes we have trouble doing that. So I think those 

should be handled separately from section 108. 

And with respect to the collective licensing, there is an effective 

voluntary collective licensing program in the United States, which 

is the Copyright Clearance Center. It does not cover all types of 

works. It focuses on literary works, and it is voluntary. But it exists. 

Mr. COBLE. Thank you, sir. 

I see my red light has illuminated. 

I recognize the gentleman from New York, Mr. Nadler. 

Mr. NADLER. Thank you. 

First of all, let me begin by asking unanimous consent to submit 

a statement from the Writers Guild of America for the record and 

also a statement of the Copyright Alliance, which my colleague, 

Representative Chu, wanted to make sure was part of the record. 

Mr. COBLE. Without objection. 

[The information follows:] 
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Mr. COBLE. And I will remind the witnesses the record will remain open for 5 days. So nobody is holding a stop watch on you. 

Mr. Nadler? 

Mr. NADLER. Thank you. 

As a loyal Columbia alumnus, I will start with Mr. Neal. Mr. 

Neal, Mr. Rudick and Ms. Constantine suggest exploring the possibility of some sort of collective licensing agreement. I think I just 

heard Mr. Rudick say that that exists already. And the Copyright 

Office is currently exploring that. 

What is your view of this approach, and might it be worth exploring for orphan works and for mass digitization? 

Mr. NEAL. I do not think that a volunteer collective licensing program is what we want and need. 

Mr. NADLER. Because? 

Mr. NEAL. It would not solve the orphan works problem in my 

view because I question whether many of the rights holders would, 

in fact, emerge to opt in. I also worry whether libraries and other 

users would often end up paying for things that would be appropriate to use for free under fair use. Collecting societies sometimes 

in this country and sometimes outside the United States have problematic track records, and I would be concerned. 

Mr. NADLER. Ms. Constantine, could you comment on that? The 

same question. 

Ms. CONSTANTINE. I disagree. I think even Mr. Neal and I could 

sit around the table and craft something that would be workable. 

The problem is—and we found this in the Google settlement. I 

think it is true that if you have something of value to somebody, 

they will step forward. So I think an orphan who has visions of 

some kind of compensation will be easy to find. 

And we have an affiliated organization in our Authors Guild 

called the Authors Registry. It was founded in 1995. And we have 

paid over $20 million. Last year, we distributed $2.8 million, and 

we are the payment agent for two foreign rights organizations from 

the UK and one from the Netherlands. And we distribute secondary royalties, royalties for photocopying, broadcast, library lending, and it works. It has been successful. And we did a survey and 

our success rate is better than 80 percent. So we are able to find 

orphans. If there is money, they will come. 

Mr. NADLER. Thank you. 

Mr. Rudick, do you want to comment on that briefly before my 

next question? 

Mr. RUDICK. It is wrong to think of, I think, collective licensing 

as a total solution to anything. It is a tool that you use—— 

Mr. NADLER. It could be a partial solution. 

Mr. RUDICK. Sorry? 

Mr. NADLER. It could be a partial solution. 

Mr. RUDICK. It is a partial solution. It is a tool that helps. 

With respect to orphan works, I have always liked the 2008 Senate bill. I think that answers our needs. I do not think you need, 

for orphan works, an elaborate scheme such as collective licensing. 

With respect to mass digitization, again collective licensing is a 

tool. 
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I think what we need is legislation that addresses some of the 

issues that the courts are trying to address, and of course, that are 

working their way through the courts. 

Mr. NADLER. Got it. Thank you. 

Mr. Lukow, in your written testimony, you note the desire to increase offsite access to the Packard Campus’ collection. In discussing offsite access in his written testimony, Mr. Rudick noted 

that, ‘‘Without safeguards to ensure that electronic copies are available only to authorized users, remote access would amount potentially to broad unauthorized, uncompensated distribution of copyrighted content.’’ And that is a real concern. 

Is it possible to ensure sufficient security? 

Mr. LUKOW. Yes. The private companies, record companies, film 

studios, and online resources of audiovisual material have mechanisms for making access to these materials available to consumers. 

Those technologies are available. We think that they can be deployed under section 108 for archives and libraries as well. 

Mr. NADLER. Thank you. And to the extent that increased offsite 

access is developed through case law under a fair use approach, 

would sufficient safeguards develop? 

Mr. LUKOW. We want fair use and section 108, both absolutely 

at our—— 

Mr. NADLER. So I assume your answer is no without the section 

108. 

Mr. LUKOW. I am getting a little lost in the question. We definitely want to continue to rely and revise 108 and fair use. 

Mr. NADLER. And I would ask Mr. Rudick the same question on 

the last point. To the extent that increased offsite access developed 

through case law under a fair use approach, would sufficient safeguards develop? 

Mr. RUDICK. I had a little trouble following the question. 

Mr. NADLER. To the extent that increased offsite access is developed through case law under a fair use approach, will sufficient 

safeguards develop? 

Mr. RUDICK. I think that case law is not a very good way to address that issue. It is much better and simpler and easier, I think, 

to address it through legislation. And in our report, we noted that 

for many types of libraries, the question of remote access could be 

dealt with. What you look for is a defined user group. The hardest 

problem to solve—and it is a hard problem to solve—is the public 

library. But I do not think it is impossible to solve it. 

Mr. NADLER. My time has expired. Thank you. 

Mr. COBLE. I thank the gentleman. 

The distinguished gentleman from Pennsylvania, Mr. Marino. 

Mr. MARINO. Thank you, Chairman. 

Good afternoon, lady and gentlemen. Thanks for being here. 

I want to get right to an issue here, and I think you danced 

around it a little but I did not quite get the gist of what you were 

trying to say, or I could be wrong on this totally. But when you 

hear my question, you will understand. 

How are we going to pay for this? I would like each of you to respond to that, if you would like to, starting with Mr. Lukow. 

Mr. LUKOW. Each of us? 
111 

Mr. MARINO. Yes. I mean, there is so much in there. We talk 

about music. We are talking about films. We are talking about documents. We are talking about papers. I am sure I am missing so 

many other things. And there is no one that does not want to see 

these items preserved, preserve our history—we learn from it. We 

teach our children and our grandchildren about it. But how are we 

going to pay for this restoration? How are we going to pay for this 

process? We are $18 trillion in debt. 

Mr. LUKOW. We are grateful to the Congress and the American 

people for having funded the creation of the Packard Campus, in 

collaboration with our private sector partner, the Packard Humanities Institute. It is a preservation factory. It dramatically increased our preservation capabilities in some cases by a power of 

10. We preserve about 40,000 items every year at the Packard 

Campus. So with continued support of annual appropriations, we 

have years and years worth of work ahead of us, but we are doing 

well. 

Mr. MARINO. But what if we come up with a way—and I am asking you for recommendations on it—with a minimal or maybe no 

support by the taxpayers? How do we do this? What do the universities have to say? What do the individual entities have to say 

about this, in addition to the Library of Congress? Your budget is 

what? About $19 million a year? 

Mr. LUKOW. Yes, for the Packard Campus. 

Mr. MARINO. I imagine there are hundreds and hundreds of millions of dollars worth of work that can be done out there. 

Mr. Rudick and then down the line please. 

Mr. RUDICK. Well, if I understand the question, in terms of paying for this, I think there is an opportunity for collaboration between the private sector and the libraries with respect to preservation. There is no need to do the same thing twice. Fundamentally, 

preservation is a core library mission, and I do not think you can 

rely on the private sector. 

Mr. MARINO. The libraries like to—and I agree with them. They 

do not like to charge, and it is a public library. So how are you 

tying the library into—you say the libraries should start coming up 

with some type of fee? 

Mr. RUDICK. There is nothing in the 108 report that suggested 

libraries should start charging for core library functions. I am not 

sure I understand that question. 

Mr. MARINO. You answered it. I got it. 

Mr. Neal? 

Mr. NEAL. Thank you for that question. I think it is important 

to recognize that when we preserve through digital technologies, 

we have the cost of digitizing the item. We have the cost of creating 

the intellectual infrastructure. Let us call it cataloging. There is 

the cost of the actual intellectual cataloging metadata, and we have 

the long-term storage of that digital object. We increasingly are allocating funds out of our operating budget in order to be able to 

take care of the resources that we receive, we purchase. 

Mr. MARINO. At Columbia. 

Mr. NEAL. At Columbia. 

Mr. MARINO. Okay. So you are doing that in and of your own 

right. 
112 

Mr. NEAL. Exactly, because we recognize that is a fundamental 

part of our responsibility to my current faculty and students and 

to future scholars and students who are going to need that stuff. 

Mr. MARINO. How can we help, though? Columbia and the universities are not going to be able to do this on their own given the 

fact of the cost of education, the way that that is going. I need recommendations. I need suggestions. We need suggestions. 

Mr. NEAL. Well, I think public-private partnerships are essential. 

We work, for example, with a large number of publishers and vendors who we make these collections available. They get a number 

of years in order to commercially make them available for licensing 

purposes, and after a certain period of time, 5 years or 10 years, 

then it is opened up for public access and use. 

Mr. MARINO. I have a minute for three more responses, if you 

would break it up. 

Ms. CONSTANTINE. I just would add this is not my issue, preservation. It is a creation of compensation for rights holders. But I 

have an idea. 

Google is reaping massive profits by its mass digitization efforts. 

If we tax them for both creator compensation and preservation efforts, them and others who are taking advantage of all of the technological advances and content that they are using and getting advertising revenues, that might be a way of getting the answers to 

the libraries’ questions. 

Mr. MARINO. Thank you. 

Mr. Donaldson, you have about—— 

Mr. DONALDSON. Of course, this is not my issue either, but the 

cost issue is, which is one of the many reasons we are opposed to 

setting up some sort of a registration when you plan to use an orphan work or if you have used an orphan work. All of these costs 

money that nobody is willing to come up with. So we are against 

all those. 

Mr. MARINO. Mr. Sedlik, quickly please. 

Mr. SEDLIK. Congressman Marino, I would also bring up the fact 

that there are hundreds of millions of works sitting in the collections undigitized by individual artists. Illustrators and painters, in 

particular, have a problem in digitizing their works. These works 

have not yet been seen by the Library or by any library. These are 

a record of our time. They are part of the fabric of our cultural heritage, and the individual artists are left with the burden of 

digitization. 

Mr. MARINO. Thank you. 

I yield back. 

Mr. COBLE. I thank the gentleman. 

The distinguished lady from California, I think, is next in line. 

Ms. Lofgren? 

Ms. LOFGREN. Well, thank you very much. This has been a very 

interesting session. 

At the beginning, everybody introduced witnesses, but I did not 

get to mention that David Packard, who was from my neck of the 

woods, gave a major gift to the Library of Congress that actually 

made the center possible. And so I think it is worth thanking the 

Packard family and the Packard Foundation for that very generous 

gift that helped make this happen. 
113 

You know, I was thinking back. Howard Berman and I decided 

a number of years ago that we would solve together the orphan 

works problem. And we engaged in discussions and we brought 

people together. And what we found was that it was impossible to 

do. Everybody was arguing with everyone else, and we could not 

get everybody on the same page, even though I think everybody 

was working in good faith. You would think it would be easy to 

solve, and we found out it was not easy to solve. And yet, it is still 

important. 

So here is a question I have. Ms. Constantine, what you have 

outlined is not exactly what we discussed, but it was along those 

lines where you do a search and if you could not find, then you 

could use. I mean, if the person owns a copyright, they own it. So 

if they want to opt out, that is up to them. They can make a deal 

separately. But if you cannot find the owner, that is something 

else. You do not want to wall off from the culture. And visual artists objected to that. 

What is your take on Ms. Constantine’s proposal, Mr. Sedlik? 

Mr. SEDLIK. I think, first of all, PLUS is not an advocacy organization. 

Ms. LOFGREN. No. I understand. But I am just interested in your 

view. 

Mr. SEDLIK. I would say that you would find that the visual artists felt threatened because of the inability to distinguish between 

works that were older and works that were created 5 minutes ago. 

If I, as a photographer, create a work now and wished to publish 

it, it is going to be stripped of its identifying information and end 

up being circulated and used and being orphaned. 

Ms. LOFGREN. It is not really orphaned. It is being infringed. 

Mr. SEDLIK. Correct, correct. 

And I think that this was the threat that the visual artists perceived. 

A couple of other issues that the visual artists had were the inability to stop objectionable use. If their works, once orphaned, 

were out there being used in a manner that was counter to the beliefs of the creator and did not fall under fair use, that was an 

issue. 

Competitive use. Let us say one of my images ended up being 

picked up by someone else who found it, did a diligent search, did 

not find me, and begins making posters or some products with my 

images. And then a violation of more of my exclusive rights, meaning that—let us say I have an exclusive license with one of my images to some party, and somebody else picks it up as an orphan 

work and begins using it in a manner that conflicts with my exclusive license. 

The issue of being able to get all of my works into a registry so 

that I could be found is going to take years, hundreds of thousands 

of images per artist being either digitized or brought into a registry. 

The issue of reasonable compensation. Some works are more rare 

than others, and this can become an issue. 

Ms. LOFGREN. I get the drift. 

We even talked about eliminating the visual arts from the orphan work proposal, and there was objection to that as well. Do 
114 

you object? If we were able to craft an orphan works scheme that 

everybody else agreed to, but we excluded the visual arts, would 

there be objection to that? 

Mr. SEDLIK. The photographer in me would have no objection to 

that. However, the PLUS Coalition has the libraries, the museums, 

the archives, the educational institutions, and these works, should 

they actually be orphaned eventually, have tremendous value to 

our society, and I do not know that we can exclude visual works 

from the orphan works act. We might have to treat them in a special manner. 

Ms. LOFGREN. My time is just about out. Just a couple of observations. 

One, the fair use doctrine is a court-created doctrine. It always 

has been. It is not statutory. And I actually think we are better off 

with that. It is created because of the First Amendment. They do 

not have fair use in places that do not have a constitution. And I 

just think our capacity to err greatly is very high when it comes 

to that. 

I do think there is an opportunity on the orphan works thing. We 

have not discussed the issue of the term of copyright which, of 

course, we extended dramatically with the Sonny Bono Copyright 

Act. So, it is now basically a century and a half, which is a very 

long time. And I think that to some extent, that may be aggravating some of the orphan works issues. Life of the author plus 70 

years is a long time, and it really is walling off—I mean, I am not 

suggesting—one of my colleagues on the Floor told me that he 

thought we ought to go back to the term that was in the Constitution. I think that 14 years would be rather small. But I do think 

we should have a discussion about what we have done in terms of 

walling off whole bodies of work for a century and a half. It just 

seems like something that should be part of this discussion. 

With that, my time is up, Mr. Chairman. Thank you very much. 

Mr. COBLE. I thank the gentlelady. 

The gentleman from Missouri has no questions I am told. The 

gentleman from Florida. 

Mr. DESANTIS. Thank you, Mr. Chairman. 

Ms. Constantine, so how did the snippets of books displayed in 

these search engines result in economic losses for the authors? And 

how do you respond to the argument that that actually could facilitate more book sales once people get a snippet of the work? 

Ms. CONSTANTINE. Well, I will go with the second question first. 

It is not proven. There is no evidence of that. And we believe taking eyeballs from a retailer like Amazon, for instance, and bringing 

it into Google where there is a search facility—you cannot buy anything from Google. You can buy something from Amazon. So you 

have a sight of the book from Amazon. You look at it, and then, 

‘‘Oh, this is an interesting book.’’ I can look at a few pages of it. 

I am going to press and I am going to buy a book. With Google, 

it is not the same thing, and there has been no evidence that it has 

caused more sales. 

With respect to snippets, there is a very lucrative excerpt market 

out there for permissions for scholarly and other material that is 

being adversely impacted by snippets, believe it or not. And there 

was testimony to that effect at the Google Books settlement fair 
115 

use hearing. So there are specific authors who are losing money because you can get a snippet of the information that previously they 

were able to sell a license in the open market. 

But it is not just snippets. What is happening is they are copying 

the entire books. Snippets—you can get 78 percent of the book. 

They basically blacken 10 percent of every book. So you can get a 

large chunk of the book. 

And snippets are not defined anywhere in the law or, in fact, in 

Google’s back offices. They can expand and shrink at Google’s 

whim. It is a made-up concept and it is a made-up term. So 

snippets can become a page or they—— 

Mr. DESANTIS. How does that work with Amazon? Do they have 

a limit? Because I know I have shopped—— 

Ms. CONSTANTINE. 20 percent. 

Mr. DESANTIS. Okay, so like table of contents and you get to do 

some of those. 

Like the public benefits to having some of these mass digitization 

products—how should they be weighed against risk to authors? 

Ms. CONSTANTINE. Well, the problem with mass digitization and 

what is happening now is that they are very vulnerable to security 

breaches. They are online. Once there is a security breach, you 

have widespread, flawless copies going out and distributed anywhere. And then there is the pirate issue. 

So the authors who I speak to are very concerned that they did 

not give permission to anybody to digitize their works, and they 

specifically do not want their works—some of them—digitized because they are concerned about this total loss of marketplace if the 

works get out there into the Ethernet. So it could be a devastating 

blow to literary culture. 

Mr. DESANTIS. Mr. Donaldson, how many projects do not proceed 

due to orphan works issues, and what is the economic impact of 

those not proceeding? I know just the ball park estimate from being 

knowledgeable. 

Mr. DONALDSON. There are probably thousands. Nobody keeps 

those records, and I wish they did. But the potential is huge because there is so much of that wonderful old material that could 

be remade or made into films from books, articles. And in the documentary field, virtually all documentaries eventually run into the 

problem of wanting to use something and not being able to find the 

owner. So they have to pull back and try and use it within fair use 

or find something that may not be as good, but it will kind of work 

in that instance. 

Mr. DESANTIS. So the economic impact—I mean, it is not insubstantial. 

Mr. DONALDSON. That is correct. 

Mr. DESANTIS. There would be a tangible economic impact. Okay, 

great. 

Mr. Sedlik, what has changed in the photography world since the 

original discussions about orphan works legislation, and have positions of photographers towards these orphan works changed, and 

if so, how? 

Mr. SEDLIK. The photography organizations have come together 

to attempt to reach consensus in the interim. I do not know that 

they have reached consensus. However, I believe that you will find 
116 

that the photographers and illustrators are very open to cultural 

heritage type usages, noncommercial in nature, of their works. 

There still remains the concern in distinguishing between commercial and noncommercial usages of orphan works. 

But I think that you will find that the photography groups acknowledge that society is the ultimate beneficiary of copyright law. 

The issue that they see is that if copyright is a tree, you do not 

want to chop the tree down to provide the public with access to the 

apples. You want to put a ladder up and let people get access and 

keep the tree growing strong and producing apples indefinitely. 

Mr. DESANTIS. Great. I am out of time. I yield back to the Chairman. 

Mr. COBLE. I thank the gentleman. 

This concludes today’s hearing. I stand corrected. The gentleman 

from Florida. 

Mr. DEUTCH. Thank you, Mr. Chairman, and thank you to the 

witnesses for waiting around for me. 

I appreciate your holding this hearing today. 

I wanted just to go back to something that you said, Mr. Lukow, 

in your testimony earlier. You referenced the problems that are 

created by the sound recordings produced prior to 1972, which have 

to rely on State rather than Federal copyright protections. As an 

avid music fan myself, I have been troubled that there is an enormous number of America’s music legends, really real legends, that 

do not benefit from the basic protections of sound recordings as our 

contemporary artists do. 

And I applaud Ranking Member Conyers for his attention to this 

issue as well. 

You told Chairman Coble that legislation correcting this shortcoming is needed. I absolutely agree. 

One issue that you raised, though, that I had not considered before is the challenges that the pre-1972 loophole, I would call it for 

lack of a better word—the challenges that are created for preservation. And I would like you just to run through some of those issues 

as they relate to the issue of preservation. 

Mr. LUKOW. Well, the bottom line is that sound recordings, pre1972 sound recordings, because they have no Federal protection, 

they are not included in any of the clauses of section 108 which authorize preservation. 

So we are doing a lot of preservation under fair use and recognizing items that are degrading and in need of immediate preservation. 

One of our most public high profile projects was the Library of 

Congress National Jukebox where we did receive a license from 

Sony Music to digitize tens of thousands of the earliest recordings 

from the first 35 years of history. So that became a major preservation and access project. It is very successful. We are going to be 

adding another 10,000 recordings to the jukebox later this year. 

Mr. DEUTCH. Great. I appreciate that. 

Mr. Rudick, I just wanted to turn to you on a different issue, although judging from your reaction, you may have a comment on 

my first question. 

Mr. RUDICK. Well, I just wanted to point out that among the recommendations in the section 108 report is a proposal that would 
117 

address just the concern that Mr. Lukow raised. So we did recognize the problem and we did propose just the solution that is being 

requested. Sorry. 

Mr. DEUTCH. No. I appreciate that. 

I wanted to talk about the orphan films that I think you had discussed. No, no. Mr. Donaldson? 

Mr. DONALDSON. Yes, sir. 

Mr. DEUTCH. Sorry about that. That is what I get for running to 

another meeting in between. 

Of those, I think there were 10,000 of them, 10,000 orphan films? 

Mr. DONALDSON. At the UCLA film and television archive alone. 

Mr. DEUTCH. I am just curious. Again, a process question. Did 

UCLA try contacting the director or writer for the films as an attempt to try to get at this? I imagine that many of them are still 

with us or, at a minimum, their heirs would know where to find 

the copyright holder. 

Mr. DONALDSON. I do not know the answer to that question, but 

I would say that a substantial search for the copyright owner of a 

film, when otherwise not locatable, should include contacting the 

director and writer because they talk to each other and maintain 

friendships over a lifetime and say, ‘‘Oh, I know where that guy 

went.’’ To me, a substantial search really has to be a substantial 

search. That would include friends of friends. Bill Saunders has 

tried all kinds of ways to find out who owns his grandfather’s 

music. 

Mr. DEUTCH. I appreciate it. 

Mr. Chairman, I appreciate your holding this hearing open long 

enough for me to ask a couple questions. And I yield back. 

Mr. COBLE. You are indeed welcome. 

Again, we will express our thanks to the distinguished panel that 

has joined us today. 

This concludes today’s hearing. Thanks to all of our witnesses for 

attending. 

Without objection, as I said previously, all Members will have 5 

legislative days to submit additional written questions for the witnesses or additional materials for the record. 

This hearing is adjourned. 

[Whereupon, at 3:41 p.m., the Subcommittee was adjourned.] 

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1 17 U.S.C. § 108(f)(4). 

2 Copyright Law Revision, H. R. Rep. No. 94–1476 at 73 (1976); Sony Corp. of Am. v. Universal 

City Studios, Inc., 464 U.S. 417, 455 n.40 (1984). 3 17 U.S.C. § 121 permits authorized entities to copy and distribute copyrighted materials to 

the blind and other print-disabled individuals in specialized formats. 4The Authors Guild, Inc. v. Hathitrust, 902 F. Supp. 2d 445, 456 (S.D.N.Y. 2012). The NFB 

intervened as a defendant in this lawsuit. 5 Id. at 457–58. 6The Authors Guild’s appeal to the United States Court of Appeals for Second Circuit is pending. See No. 12-4547-cv (2d Cir.) 

Prepared Statement of Marc Maurer, President, 

the National Federation of the Blind 

Section 108 of the Copyright Act provides a safe harbor for libraries and archives 

to make copies of copyrighted works, without prior authorization, under a very limited set of circumstances. In the words of the statute, ‘‘[n]othing in this section . . . 

in any way affects the right of fair use as provided by section 107.’’ 1 Section 108 

could not be any clearer that it does not supplant or otherwise limit fair use rights. 

Because fair use is critical to enabling the blind to access our society’s wealth of 

information, the National Federation of the Blind (‘‘NFB’’) respectfully requests that 

any revision to the Copyright Act retain a provision expressly stating that libraries’ 

right to copy is not limited to the circumstances enumerated in section 108. 

Making copies of copyrighted works for the blind has long been considered a paradigmatic example of fair use.2 Through the doctrine of fair use, blind individuals 

have been able to access copies of works that would otherwise be unavailable to 

them given the scant market for accessible texts. Fair use and section 121 3 of the 

Copyright Act have worked to vastly increase access to copyrighted works for the 

blind. Programs like the Library of Congress National Library Service for the Blind 

and Physically Handicapped, Learning Ally, and Bookshare allow quick access to 

hundreds of thousands of popular titles to blind and other print-disabled readers. 

With the development of the HathiTrust digital library, a digital collection of more 

than ten million works from various university libraries, equal access to scholarly 

works for blind students and scholars has become a reality. Before the HathiTrust, 

blind university students would have to wait weeks or months for limited, ad hoc 

access to required course reading and had no meaningful opportunity to engage in 

library research. The HathiTrust has begun to change this. Blind students and 

scholars at participating universities now have access to millions of texts at their 

fingertips, with the ability to browse titles, skim through book chapters, consult tables of contents and indices, and perform research on par with their sighted peers. 

The HathiTrust has been revolutionary for the blind. 

If section 108 were to be revised so that it limited, or could be interpreted as limiting, libraries’ rights to make copies for the blind under sections 107 or 121 of the 

Copyright Act, all of the progress in advancing access to information for the blind 

would be lost. Indeed, in its lawsuit challenging the legality of the HathiTrust digital library, the Authors Guild has argued that section 108 requires that the 

HathiTrust be shut down.4 The crux of the Authors Guild’s argument is that the 

HathiTrust violates the Copyright Act because it exceeds the bounds of section 108 

by including copies of every work in the libraries’ collections (rather than only those 

specifically requested or otherwise authorized under section 108) and by permitting 

blind readers to access the digital copies on their home computers outside of the 

walls of the library. Given the clear language of section 108(f)(4), the district court 

rejected the Authors Guild’s argument.5 Nevertheless, the Authors Guild has continued to argue on appeal that the libraries are not permitted to copy beyond what 

is authorized under section 108.6

If the Authors Guild’s argument were to prevail, or if section 108(f)(4) were eliminated, the doors of the library would, as a practical matter, be closed to the blind. 

If libraries’ right to copy materials were limited to only those rights set forth in section 108, libraries could make copies for archival purposes, but they could not create 

libraries of digital copies for use by the blind because such copies would not have 

been made upon the ‘‘request’’ of the user, but in advance of and in anticipation of 
174 

7 17 U.S.C. § 108(d),(e). 

8 17 U.S.C. § 108(b)(2), (c)(2) 

9 U.S. Const., Art. I, § 8, cl. 8. 

such requests.7 Thus, a student in need of sources for a research paper would have 

to wait for library staff to make an accessible copy of each book that seemed remotely on point—a process that might take longer than the time in which the student had to write the paper. Yet sighted students could simply walk into the library, 

browse the stacks, and immediately select and begin reading relevant texts. In a 

world in which libraries could not engage in mass digitization to make accessible 

copies of their collections in advance of individual requests, there is no way a blind 

student could compete with his peers or meaningfully engage in library research. 

The only way that blind students and scholars can be assured of timely and equal 

access to information is by having large collections of accessible digital copies ready 

for use in advance of requests for specific texts. 

The other problem with confining libraries’ ability to copy texts to the confines 

of section 108 is that it limits digital copies made for archival purposes from leaving 

the premises.8 A blind Ohio State University student who had persuaded Bookshare 

to make him a copy of his introduction to economics textbook would have to fly to 

northern California, where Bookshare’s offices are located, each time the professor 

assigned new pages. 

A revision of the Copyright Act that limited libraries’ right to make accessible copies to only those circumstances enumerated in section 108 would therefore remove 

accessible texts from the hands of blind individuals, effectively excluding the blind 

from participation in our increasingly information-driven society. Such an outcome 

would run counter to the purpose of the Copyright Act, which is ‘‘to promote the 

Progress of Science and useful Arts.’’ 9 The Constitution is clear that copyright is 

first and foremost a tool for promoting learning, not for barring the blind from our 

collective storehouses of knowledge. Thus, to fulfill the purposes of copyright and 

to advance the tremendous progress that has been made in opening the library 

doors to the blind, the rights of libraries to make copies should not be limited to 

the circumstances enumerated in section 108, but should continue to include the 

rights set forth in section 107 and 121 of the Copyright Act. 

Æ