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What You Should Know About U.S. Copyright Office’s New White Paper on Mass Digitization of Copyrighted Works

November 2, 2011

On October 31, 2011, the U.S. Copyright Office published its much-anticipated “white paper” on the mass digitization of copyrighted books.  This white paper – entitled “Legal Issues in Mass Digitization:  A Preliminary Analysis and Discussion Document” – is expressly intended to launch a discussion among copyright stakeholders as to how the law should address mass digitization of content.  Clients that own, license, manage or regularly use copyrighted content should follow this discussion as it progresses and aggressively participate to protect their interests.

This white paper responds to two significant legal developments during 2011.  On March 22, 2011, the U.S. District Court for the Southern District of New York rejected a proposed settlement in the long-running class action lawsuit brought against the “Google Books” project.  Judge Chin found that the settlement would have redefined the relationship between copyright law and digital media.  As such, the settlement encroached upon Congress’ responsibility for setting copyright policy.  On September 12, 2011, the Authors Guild sued five universities that participated in Google’s mass digitization, as well as a library consortium known as the HathiTrust that announced an intention to begin offering public access to some of the books digitized during the “Google book” project.

The Copyright Office’s white paper provides an excellent review of mass digitization projects underway in the United States and around the world, as well as a summary of how the copyright regimes of other nations have addressed mass digitization.  The white paper also discusses the Copyright Office’s view of mass digitization under current U.S. copyright law.  The Copyright Office casts doubts on the availability of the two principal defenses asserted by proponents of mass digitization against infringement charges – fair use and the library exception (Sections 107 and 108 of the Copyright Act).  The white paper expresses the view that “large scale scanning and dissemination of entire books is difficult to square with fair use” and that “[t]he Section 108 exception does not contemplate mass digitization.”

Given this view of the current U.S. law, the Copyright Office concludes that the solution to the legal issues surrounding mass digitization must involve some form of licensing.  The white paper examines various licensing options including direct licensing, collective licensing and statutory licensing.  Direct licensing is discounted as impractical due to the significant transaction costs.  Statutory licensing is viewed as an option of last resort given the inherent challenges of securing a legislative solution.  Thus, by default, the white paper appears to conclude that some form of collective licensing should be seriously considered.

The Copyright Offices’ white paper provides a useful starting point for a discussion of the copyright issues surrounding mass digitization and is “must reading” for copyright stakeholders. Click here to download a copy of the white paper [PDF].

For more information, please contact the professional(s) listed below, or your regular Crowell & Moring contact.

John I. Stewart Jr.
Retired Partner – Washington, D.C.