HathiTrust: Section 108 & Fair Use Are Not Mutually Exclusive
Librarians who pay attention to copyright long have believed (and have been taught) that the the law’s fair use and library preservation provisions work cooperatively (if not simultaneously) to allow libraries and archives the opportunity to use limited portions of protected works without requiring the owner’s permission, and without having to pay a license fee to the owner. In the case of Section 108, the provision allows libraries and archives to reproduce and distribute all of a protected work under specific circumstances in the event the library or archive qualifies for such protection.
The theory behind the librarians’ belief is that the fair use provisions in Section 107 act as a backstop to all the Act’s other limitations, including those under Section 108. I long have considered fair use to be the “all-you-can-eat” limitation – one that is available to libraries (or to any other member of the public) even when they cannot fulfill specific requirements Section 108 demands. (Let’s defer, for a moment, the argument about whether fair use is best classified as a privilege, a limitation, a right, or an affirmative defense.)
As law professor James Grimmelman observes, fair use is a standard that is broadly and vaguely phrased, inherently case-specific, and requires judicial elaboration and interpretation. In contrast, the library preservation allowances under Section 108 are rules that are narrowly and tightly phrased, able for librarians to apply mechanically without judicial intervention. I always have taught, in countless workshops and classes, that Section 107 and Section 108 coexist synergistically, and should be deployed in a very specific way: try to qualify for Section 108 first, and if you cannot qualify for Section 108, then use fair use as your safety net.
Now the Authors Guild is openly disputing librarians’ beliefs and interpretations.
In a recent filing in its lawsuit against HathiTrust, the Authors Guild argues [pdf] that HathiTrust and its partner defendant colleges and universities cannot claim its planned orphan works digitization program qualifies as a fair use because the libraries actions fail to qualify for Section 108. Further, the Guild argues, by failing to qualify for the Section 108 exemption, the libraries automatically disqualify themselves from being able to claim a fair use defense.
The crux of the Authors Guild’s argument begins at page 21 of its memorandum [pdf] in support of its motion for partial summary judgment (“Authors Guild memo”). This argument caught my attention, even though it is a secondary argument in the Guild’s motion. (Most of the memorandum argues, with much more legal justification, that the HathiTrust project does not qualify as an activity that the Section 108 limitation allows.)
If the Authors Guild’s fair use argument prevailed, however, it not only would guarantee that the Authors Guild wins the HathiTrust lawsuit, but it also would disrupt the digitization programs of virtually every library, museum, or university in the United States.
There are several reasons, however, why the Authors Guild’s fair use argument should not prevail. Researching copyright’s legislative history provides many of them.
Arguments based upon legislative history are difficult to make in copyright because, as Jessica Litman has written, copyright laws history historically has been whatever large, multinational content corporations have wanted it to be. Even with that caveat, however, the legislative history of Section 108 is instructive.
Grimmelman points out correctly that Section 108 was not even a part of copyright law until the passage of the current Act. As part of the current Act’s legislative history, legislators considered the interaction between fair use and the proposed library and archives exception. Senate Report No. 94-473 (1975) noted:
The Register of Copyrights has recommended that the committee report describe the relationship between this section and the provisions of section 108 relating to reproduction by libraries and archives. The doctrine of fair use applies to library photocopying, and nothing contained in section 108 “in any way affects the right of fair use.” No provision of section 108 is intended to take away any rights existing under the fair use doctrine. To the contrary, section 108 authorizes certain photocopying practices which may not qualify as a fair use.
The criteria of fair use are necessarily set forth in general terms. In the application of the criteria of fair use to specific photocopying practices of libraries, it is the intent of this legislation to provide an appropriate balancing of the rights of creators, and the needs of users.
Senate Report No. 94-473 at 67.
William Patry has interpreted this to say that if certain library copying fails to qualify under Section 108, then that copying would be evaluated under a fair use analysis. Patry on Copyright § 11.3.
The Authors Guild does not mention Senate Report No. 94-473 in its memorandum. Instead, the Guild cites a January 1983 report Report of the Register of Copyrights, Library Reproduction of Copyrighted Works (“1983 Report”) [pdf] to support its claim that Section 108 and Section 107 are (or should be) mutually exclusive.
The Guild begins its argument by referring to rules of statutory construction, then it reinforces its argument about the mutual exclusivity of fair use and the library exemptions by citing Section 108(f)(4), which says
Nothing in [Section 108] … in any way affects the right of fair use as provided by section 107, or any contractual obligations assumed at any time by the library or archives when it obtained a copy or phonorecord of a work in its collections.
Section 108(f)(4) is what practitioners refer to as a “savings clause.” In legislation, a savings clause is language lawmakers insert into a bill that effectively says “if one part of this law is illegal or is considered to be legally invalid, the rest of the law will remain valid and enforceable.” The Section 108(f)(4) savings clause is supposed to reaffirm fair use principles and the availability of those principles to libraries.
Instead, the Guild argues that the savings clause makes fair use principles unavailable to libraries
[T]o read the savings clause as permitting ‘post-108’ reliance on fair use as if no § 108 copying had occurred is to come dangerously close to reading § 108 out of the statute. Given that Congress deemed Section 108 “necessary to exempt much library photocopying from copyright liability, and since Congress did not likely intend to construct complex mechanisms in most of the section only to render them moot via subsection (f)(4), that result is implausible.
Authors Guild memo at 23. The quote comes from page 98 of the 1983 Report.
There is ample evidence, however, that the Authors Guild is selectively reading the 1983 report.
First, the Guild’s quote in its memo fails to identify the origins of the “fair use and Section 108 are mutually exclusive” theory. That theory never has been codified as law, nor has it been an opinion of the Register of Copyrights. Instead, the theory has been an advocacy position that the Association of American Publishers (AAP) has been advancing for more than three decades. 1983 Report at 96. In other words, it has been AAP’s opinion of how to interpret this provision of copyright law, nothing more.
Second, in the sentence immediately following the quote the Authors Guild has cited to support AAP’s theory that Section 108 and Section 107 are mutually exclusive, Register David Ladd writes
The better position is that library photocopying “beyond” 108 may be fair use if both:
(a) the transaction is of a type which could be fair use in the absence of §108, and
(b) the fair use analysis (conducted only if (a) applies) of this transaction takes into account the “108” copying which has already occurred.
The first part of the test is important. … Part (a) means that, for either type of transaction — beyond 108 — one should first consider whether fair use could ever apply to such a transaction, i.e., whether, if there were no §108, such a transaction could be lawful. In the examples given, one would likely conclude that the replacement of a lost, stolen, damaged, or deteriorating copy could be a fair use, while all ILL copying, a form of systematic copying lawful only via the proviso, could not be a fair use. This means that for copying beyond 108, the examination of a specific transaction (part (b) of the test) would occur with respect to replacement copying, but not with respect to systematic copying, which could never be fair use.
Finally, with respect to the that savings clause that the Authors Guild argues should be stricken, William Patry offers another reading
Although it would be preferable to delete section 108(f)(4) from the statute, as it serves only to give rise to the erroneous interpretation of section 107 as a “spillover” provision after section 108 limits have been reached, its inclusion suggests that section 107 is available, when, as the Register commented, the “transaction is of a type which would be considered fair use in the absence of § 108,” e.g., where the copying is for nonprofit educational purposes but the library collection is not open to the public or the distribution of the work does not include a notice of copyright – circumstances that would disqualify a library from receiving section 108 treatment. Construed this way rather than as covering copying “beyond section 108,” section 108(f)(4), while still unnecessary, is at least consonant with the provisions of both sections. If one could copy up to the limit allowed in section 108 and the CONTU guidelines and then turn to section 107 to permit additional copying (and pretend that the copies made under Section 108 did not take place), multiple copying would never be multiple but rather an infinite succession of single copies while factors three and four in section 107 … would always have to be considered in relation to a single copy and not to the multiple copies, contrary to the facts and the law.
Patry on Copyright § 11.4.
As a result, it seems clear that any theory in which the Copyright Act’s Section 108 limitations and fair use are mutually exclusive is one that has been perpetuated exclusively by large publishers, but also one that has failed to find doctrinal or legislative support.