Issues concerning libraries and the law - with latitude to discuss any other interesting issues Note: Not legal advice - just a dangerous mix of thoughts and information. Brought to you by Mary Minow, J.D., A.M.L.S. [California, U.S.] and Peter Hirtle, M.A., M.L.S. Follow us on twitter @librarylaw
As I was reading Roy Kaufmann’s testimony on behalf of the Copyright Clearance Center (CCC) at the recent Congressional hearing on "Copyright Issues in Education and for the Visually Impaired," I was struck by CCC’s boilerplate statement that it “was created at the suggestion of Congress in order to help clear photocopy permissions.” You can find this in other places. For example, CCC claimed in its response to a 2012 "Notice of Inquiry Concerning Orphan Works and Mass Digitization" that “CCC was created at the suggestion of Congress in the legislative history of the Copyright Act of 1976.” I haven’t been able to pin down the earliest use of this assertion, but it appears to date from the late 1980s.
It is easy to understand why CCC would want to claim it has a Congressional mandate for its programs. But is the claim accurate? Did Congress suggest that CCC be created?
The answer is unequivocally "no." A Congressional committee did suggest that it thought a voluntary licensing scheme would be desirable, but it never suggested that CCC was the form that such a scheme should take.
A good starting point is S. Rept. 94-473, the report in 1975 accompanying S. 22, which eventually became the 1976 Copyright Act. The Judiciary Committee has this to say on p. 70-71:
The committee therefore recommends that representatives of authors, book and periodical publishers and other owners of copyrighted material meet with the library community to formulate photocopying guidelines to assist library patrons and employees. Concerning library photocopying practices not authorized by this legislation, the committee recommends that workable clearance and licensing procedures be developed.
The Judiciary Committee was echoing similar sentiments that had been repeatedly echoed throughout the years of copyright revision. One example: in 1967, the House report on the proposed copyright law noted on p. 33:
Recognizing that our discussion in this report is no final answer to a problem of shifting dimensions, we urge that those affected join together in an effort to establish a continuing understanding as to what constitutes mutually acceptable practices, and to work out means by which permissions for uses beyond fair use can be obtained easily, quickly, and at reasonable fees. Various proposals for some type of Government regulation over fair use and educational reproductions have been discussed since the hearings, but the committee believes that workable voluntary arrangements are distinctly preferable.
There is no question, then, that some in Congress hoped that "workable clearance and licensing procedures" could be developed. Publishers responded by forming CCC. But to imply that CCC is an embodiment of Congressional desire goes too far. There is little evidence, for example, that CCC represents the collaborative, mutually-beneficial solution recommended by the Senate committee in 1975. CCC's existence as a creature of publishers' interests was highlighted by the court that denied CCC tax-exempt status in 1982:
We are not faced here with a truly joint undertaking of all partie--publishers, copyright owners, users, and governmental agency--concerned with proper enforcement of the copyright laws, in which efforts are focused on meeting the needs and objectives of all involved. Instead, petitioner was organized by a segment of a publishers' trade group, the Technical, Scientific, and Medical division of the AAP, and there is little persuasive evidence that petitioner's founders had interests of any substance beyond the creation of a device to protect their copyright ownership and collect license fees.
Furthermore, we have no reason to believe that the Senate committee would have endorsed many of CCC's current activities. Would Congress, for example, conclude that the suite of licenses offered by CCC represents "workable clearance and licensing procedures"? And would the committee conclude that litigation on behalf of its publisher clients is an appropriate licensing activity, one that is a "mutually acceptable practice" to all parties? (CCC is funding the litigation against the faculty and staff of Georgia State University that deceptively argues that educational library reserve use is somehow equivalent to coursepacks sold by commercial vendors.) Even in 1975, the Senate committee was aware that library use was changing and that copyright practices would consequently have to adjust, noting that even while adopting the provisions in the 1976 Act, "the committee is aware that ... there will be a significant evolution in the functioning and services of libraries" that may "necessitate the need for changes in copyright law and procedures."
Finally, did the Senate envision an organization whose finances and administration are as secret as CCC's? Because it lost its tax-exempt status, CCC is not required to file IRS Form 990, which can reveal so much about the operation of tax-exempt non-profits. No detailed figures on CCC's operations are posted to its web site; we have no data on how much money is remitted to authors (as opposed to publishers); and we do not know if that permission revenue is an important incentive to authors for the creation of new works.
So let's stop agreeing that CCC was formed "at the suggestion of Congress." At best, it is the publisher's response to a suggestion of Congress. Perhaps the best description of CCC is found in the CONTU final report: “a nonprofit New York corporation created under the sponsorship of publisher and author organizations.”