Friday, December 20, 2002

College Groups Challenge Copyright Office on Exceptions to Digital-Copyright Law By ANDREA L. FOSTER College groups are again asking the U.S. Copyright Office to allow scholars to bypass technological devices that restrict electronic access to copyrighted works. In a letter to the Copyright Office, the groups say that a section of the Digital Millennium Copyright Act, known as the "anti-circumvention provision," needs to be revised to permit "fair use" of copyrighted material for research and teaching. Researchers and scholars maintain that they must be able to bypass the access-control devices and view digital texts and images without fear of breaking the law. The groups note that academic users have long been able to view nonelectronic copyrighted material under existing fair-use provisions of copyright law. The Association of American Universities wrote the letter, dated Wednesday, on behalf of the American Council on Education and the National Association of State Universities and Land-Grant Colleges. The groups' comments are part of a process in the digital-copyright law that requires the Copyright Office to recommend exceptions to the anti-circumvention provision to the Library of Congress every three years. The head of the Library of Congress oversees the Copyright Office. The groups made a similar but unsuccessful appeal two years ago. But this year, in a departure, the groups are faulting the standards the Copyright Office uses to determine whether exceptions to the anti-circumvention provision should be granted (The Chronicle, November 30, 2000). The standards call for concrete evidence that someone seeking an exception has suffered harm because of the anti-circumvention provision. But that measurement "creates a 'Catch-22' for copyright users, virtually assuring that no meaningful exemptions will be adopted," wrote John C. Vaughn, executive vice president of the Association of American Universities, which represents 63 leading research universities. He continued: "Building the kind of evidentiary record apparently contemplated by the Copyright Office simply is not practical for most institutions (particularly large, public institutions such as universities and libraries)." Rather than forgo access to copyrighted material in order to document the harm they suffer from the anti-circumvention provision, he said, most universities and libraries would pay increased royalties or license fees to gain access to the material. Library groups made a similar point in a letter Wednesday to the Copyright Office. They said the office had "set the bar for relief at an unreasonable and unrealistic level." Arnold P. Lutzker, a Washington lawyer, wrote the letter on behalf of the American Association of Law Libraries, the American Library Association, the Association of Research Libraries, the Medical Library Association, and the Special Libraries Association. The register of copyrights, Marybeth Peters, first considered exceptions to the anti-circumvention provision two years ago. At that time, she recommended that consumers be allowed to sidestep technological controls to view two categories of copyrighted works: lists of Web sites blocked by software filters, and literary works or databases that have malfunctioning blocking mechanisms. James H. Billington, the librarian of Congress, approved the recommendation in October 2000. Ms. Peters will reconsider those two exceptions before issuing new recommendations in about a year. Rob Kasunic, a lawyer for the Copyright Office, declined to comment on the concerns of college and library groups. He said the office's opinions would be made clearer when it holds hearings on the issue this spring. Easy-to-print version E-mail this article

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