Today, Congressman Jerrold Nadler (NY-10), the Ranking Member of the House Judiciary Subcommittee on Courts, Intellectual Property and the Internet, delivered an opening statement at the hearing on the “Preservation and Reuse of Copyrighted Works.”

The following is the full text of Congressman Nadler’s opening statement (as prepared for delivery):

“Thank you, Mr. Chairman.   Today we examine whether existing law adequately allows for the preservation and reuse of copyrighted works with appropriate protections for content creators and other rights holders.  This topic touches on a broad range of interrelated issues, including the existing exception contained in Section 108 of the Copyright Act that allows limited unauthorized reproduction of copyrighted works by libraries and archives, and how the existence of orphan works complicates preservation and reuse. 

“Ensuring the preservation of creative works is unquestionably important.  Our libraries, archives, and museums have always played a critical role in compiling and preserving this nation’s rich cultural and historical heritage, and we all want to ensure that they have the tools necessary to continue their important work.  At the same time – and as our copyright law appropriately reflects – authors, artists and other creators have the exclusive right to control and exploit their works.  Our goal is to ensure that we strike the right balance.  

“Recognizing the unique public service mission served by libraries and archives, Congress first enacted Section 108 in 1976, allowing these entities a limited exception for preservation, replacement, and research purposes long before technological innovations made it possible to make digital copies of analog works on a mass scale, a practice otherwise known as “mass digitization.”  And while orphan works legislation has previously been considered by Congress, these proposals, like the relatively minor adjustments made to Section 108 through the Digital Millennium Copyright Act of 1998, did not directly grapple with mass digitization.

“This hearing allows us to revisit preservation and reuse issues in light of the considerable technological changes that have taken place in the past few years.

“As a starting point for this discussion, I am interested in hearing from our witnesses regarding what parts of the recommendations issued by the Copyright Office Section 108 Study Group remain relevant today, and whether further study or adjustments might be warranted. 

“I am similarly interested in hearing whether the existence of orphan works – commonly understood to be copyrighted works whose owners cannot be identified or located, making it impossible to negotiate terms for their use – remains a problem and, if so, how we should address it.

“Recent litigation over mass digitization seems to confirm the need for a solution.  Those cases involve a public-private partnership between Google and HathiTrust to digitize the library collections of several universities.  In the case brought by the Authors Guild against Google, the district court judge recognized that orphan works remain “a matter more suited for Congress than this Court.”  As the judge explained, “the questions of who should be entrusted with guardianship over orphan books, under what terms, and with what safeguards are matters more appropriately decided by Congress than through an agreement among private, self-interested parties.”

“Ongoing uncertainty regarding how to deal with orphan works also played a part in the related case – brought by the Authors Guild against HathiTrust – where the inability of several universities to create a procedure that accurately identified orphan works resulted in suspension of efforts to digitize these works. 

“This would seem to confirm that orphan works continue to be a problem in need of a solution, and I look forward to hearing from our witnesses on what we should do.  To the extent that some of you may feel that congressional action is not needed, what are other workable options, particularly in response to judicial requests for congressional action?

“Mass digitization may pose a similar dilemma:  some stakeholders may take the view that no action is needed, while others may firmly believe that this issue should be addressed.

“There are unquestionable benefits to be gained from mass digitization in certain circumstances.  For example, digitization allows print-disabled individuals unprecedented access to books that enables them to compete on equal footing with their sighted peers.  It may also enhance the ability to collect and preserve fragile or out-of-production works. 

“At the same time, bulk digitization involves millions of copyrighted works, some of which are orphan works, and raises complex questions about protections for creators of these works and other rights holders. 

“Congress has afforded libraries and archives special privileges in the Copyright Act in recognition of the unique and critical role they play in capturing and preserving the nation’s rich history.    Rules sought, and potentially created, by and for these institutions may not be appropriate for other users or uses of copyrighted works.  Mass digitization also presents new, and different, opportunities and risks related to online access to copyrighted works that raise critical and complicated questions that are not presented by analog copies.

“These are just a few of the many issues that we will begin grappling with today.  As we do so, we should take note of the Copyright Office’s ongoing review of orphan works and mass digitization.  That process, which started with a Notice of Inquiry in 2012 and included two days of public roundtables just last month, will provide useful guidance.  I look forward to reviewing the Copyright Office’s recommendations.    

“In the meantime, our witnesses provide a diversity of perspectives and wide range of experience, and I look forward to hearing from them today.

“With that, I yield back the balance of my time.”

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