The Authors Guild and June Besek, Executive Director of the Kernochan Center for Law, Media, and the Arts at Columbia Law School, filed a friend of the court brief with the Court of Appeals for the 11th Circuit in an ongoing copyright case, Vient v. Highlands News-Sun, which involves the copying and sale of newspaper articles by commercial databases calling themselves “archives.” The plaintiff in the case, author Ben Vient, alleges that Highlands News-Sun infringed his copyrights by reproducing articles—to which the newspaper only had a one-time, print-only right—on its website without permission. In addition, the newspaper also licensed the article to a commercial database, Newsbank, which sells copies of individual articles for a fee. In ruling against the plaintiff, the lower court on its own accord invoked section 108 of the Copyright Act, which provides limited exceptions for libraries and archives, to hold that Highlands News-Sun and Newsbank could not be liable for copyright infringement because they were functioning as an “archive.”

The Authors Guild and Professor Besek submitted the brief not to take sides in final merits of the case, but to point out that the district court had applied an incorrect and exceedingly overbroad reading of the exceptions for libraries and archives in section 108 of the Copyright Act. Both Professor Besek and Mary Rasenberger, the Guild’s executive director, have deep knowledge of section 108 through their leadership roles in a three-year study and report compiled by a group of copyright experts that the Library of Congress and the U.S. Copyright Office convened between 2005 and 2008.  As the brief explains, both the application of section 108 in this case and the court’s reading of section 108(a) as a general exception are major legal errors that can have serious consequences on authors’ ability to earn money from their work. The court in this case read the eligibility criteria in section 108(a) as allowing copies made for any purpose, when in fact, the operative provisions of 108 that provide four limited exceptions, each with clearly articulated conditions. Under the court’s strikingly erroneous interpretation of section 108, anyone can put up a collection of copyrighted texts, call it a library or archive and sell copies—all without authorization from or payment to the author or publisher. As the case is currently on appeal, we felt that it was necessary to correct the lower court’s errors with respect to section 108 and avoid setting a precedent that could potentially lead other courts astray.

Calling Something a Library or Archive Doth Not Library or

In enacting section 108 of the Copyright Act, Congress granted libraries, archives, and other cultural institutions narrow exceptions from certain exclusive rights under copyright to make it easier for them to preserve at-risk works that were already in their collections and to allow access for specialized research. But the exceptions in section 108 are not available to anybody: in order to qualify for the section 108 exceptions, a purported library or archive has to meet certain initial criteria:

  1. It cannot reproduce or distribute the works for any direct or indirect commercial advantage,
  2. It must make its collection open to either the general public or to members of the public doing research in a relevant specialized field; and
  3. It must include a copyright notice or legend stating that the work may be protected by copyright.

In addition to meeting the initial criteria, an entity availing the library and archives exceptions must restrict their use to one of a select number of activities. The exceptions only allow for reproductions and distributions to:

  1. Preserve an unpublished work currently in the collection (up to 3 copies),
  2. Replace a lost, deteriorating, or damaged copy of a published work if it cannot be purchased at a fair price (up to 3 copies),
  3. Inter-library sharing of a single article within a collection or periodical upon specific request and for a private academic purpose (1 copy), and
  4. Inter-library sharing of a whole work, but only upon specific request, for a private academic purpose, where the work cannot be purchased at a fair price (1 copy).

Section 108 further restricts the use of digital copies made for the purpose of preservation or replacement of an existing copy to those that can be accessed only on the physical premises of the library or archive. These limited circumstances are the only exceptions specific to libraries and archives in the Copyright Act.  

Exceptions Cannot Swallow the Rule

            As discussed in the brief, the court in the Vient case, without actually analyzing whether the defendants’ use met the clearly defined section 108 criteria, dismissed the infringement claim simply because the defendants refer to themselves an archive. In doing so, the lower court is setting a dangerous precedent for any entity to get away with copyright infringement by merely self-identifying as a library or archive—even one that licenses the works for commercial advantage. This is precisely the outcome Congress sought to avoid by adding, among other limitations, the requirement that digital “archival” copies be accessible only on the physical premises of a library or archive in section 108. As the Senate Report on section 108 stated:  

Although online interactive digital networks have since given birth to online digital “libraries” and “archives” that exist only in the virtual (rather than physical) sense on websites….it is not the Committee’s intent that section 108 as revised apply to such collections of information. The ease with which such sites are established online literally allows anyone to create his or her own digital “library” or “archives.” The extension of the application of section 108 to all such sites would be tantamount to creating an exception to the exclusive rights of copyright holders that would permit any person who has an online website, bulletin board or a homepage to freely reproduce and distribute copyrighted works. Such an exemption would swallow the general rule and severely impair the copyright owners' right and ability to commercially exploit their copyrighted works.

We are optimistic that the Court of Appeals for the 11th Circuit will correct the errors made by the lower court with respect to section 108. You can read the brief in its entirety below.