Among the U.S. Copyright Office’s recently released list of priorities was a promised analysis of the legal issues surrounding mass digitization projects, particularly in light of the litigation surrounding Google Books, HathiTrust, and others. The office followed through, releasing on October 31 a 97-page “discussion document” in which it says that “there is sufficient information to undertake an intense public discussion about the broader policy implications of mass book digitization.” The report raises questions about public policy goals of mass digitization projects; the interplay among library exceptions, fair use, and licensing; and the collaboration between nonprofit and commercial actors. The report is an invitation for further discussion among all stakeholders about the place where existing copyright law intersects with new technologies. Here are a few highlights from the report, which also includes a number of appendices that examine foreign treatment of orphan works, current scanning projects, and collective licensing options. An end to ad hoc projects The report is not meant to be prescriptive, and it overflows with diffident qualifiers:

To the extent that a digitization project captures [copyrighted] books, Congress may want to consider whether the purposes and objectives of these projects or possible future projects are sufficiently important to the nation to warrant possible changes to the copyright law.

But it does make a definite nod in the direction of projects like the Digital Public Library of America (DPLA):

The next logical step for the Library [of Congress] and other leading U.S. public collecting institutions --- subject to the availability of resources --- is to move from a series of ad hoc projects to a strategic and comprehensive effort that includes prioritizing content, managing licenses with copyright owners, and coordinating navigation and points of access with other important institutions.

The DPLA is mentioned in the next sentence, and the report also says: “Congress may want to consider whether the nation’s federal cultural institutions – the Library of Congress, the Smithsonian Institution, and the National Archives – should have a specific role in developing a national framework for mass book digitization projects.” Sections 107 and 108 The report discusses libraries and sections 107 (fair use) and 108 of the Copyright Act, and it does provide a few cautionary notes. The report says that the large scale scanning and dissemination of entire books is “difficult to square with fair use.” Google had claimed that it was fair use to systematically digitize millions of copyrighted library books and offer snippets from those books via its search engine. “At this time, the outcome of a fair use defense for any mass book digitization project is uncertain,” the report reads, while also pointing out that fair use is unique to the U.S., which means that for any mass digitization project that is global in nature “fair use may prove to be of limited utility.” As for Section 108, which permits libraries and archives to make, without obtaining permission, limited reproductions of copyrighted works under specific circumstances, the report says that “The Section 108 exception does not contemplate mass digitization.”

Any review of mass book digitization would need to consider, if not compare, the activities that currently are, or should be, permissible for libraries under Section 108. Any licensing schemes to implement mass digitization should not supplant the activities that have long been or should be covered legitimately by a copyright exception. This said, licensing is likely to be a part of the mass digitization equation for libraries.

In 2012 the Office, as part of its priorities, will formulate a discussion document and preliminary recommendations on copyright exceptions for libraries. The report also deals extensively with licensing options and orphan works. For the latter, it refers to the office’s own 2006 study, Report on Orphan Works, which has been the basis for proposed, but not yet passed, legislation. The office continues to maintain that if adopted, the legislation would “greatly improve access to copyrighted works.” But it notes that the proposed legislation “did not squarely address for the possibility of mass digitization projects,” and that Congress may want to do so now.