TESTIMONY REGARDING SERVICE PROVIDE LIABILITY BY LIBRARY, EDUCATIONAL, AND SCHOLARLY ASSOCIATIONS

BEFORE THE HOUSE OF REPRESENTATIVES
SUBCOMMITTEE ON COURTS AND INTELLECTUAL PROPERTY

PRESENTED BY PROF. ROBERT L. OAKLEY
GEORGETOWN UNIVERSITY LAW CENTER
September 16, 1997

Mr. Chairman, Representative Frank, and Members of the Subcommittee. I am very pleased to appear before the Subcommittee today on behalf of 23 major national library, educational, and scholarly organizations. I am also pleased to note, Mr. Chairman, that my testimony also is fully supported by the Digital Future Coalition, whose testimony will be given tomorrow and which the 23 groups on whose behalf I speak today also endorse.

Our organizations are committed to balanced intellectual property law and policy. By "balanced," Mr. Chairman, I mean that we respect and support strong copyright protection. We are equally committed, however, to strong statutory respect for the Constitutional objective that is the foundation of copyright law: "the Progress of Science and useful Arts," and to the principle of Fair Use.

Copyright is at root about promoting creativity. As creators and owners of intellectual property we understand that creativity results not just from the financial incentive for authors and inventors codified in Title 17 of the U.S. Code, but also from many provisions in the statute which promote access to copyrighted information. The best measure of our copyright law's success is whether it fairly balances those equal priorities in the service of the Framer's commitment to the broad dissemination of knowledge and information in a democracy.

Our organizations encompass a broad range of public and private institutions. Many have primary missions involving education, research, and the preservation of our scientific and cultural heritage. In the process of carrying out their missions, these institutions -- which include archives, research universities, colleges, libraries, and schools -- are both creators and consumers of scholarly communication. As such, these institutions participate in the full spectrum of activities regulated by the laws governing copyright and must be sensitive to the balance of interests embodied in them. We thus are keenly interested in the emerging debate over OSP liability.

As they revolutionize the means by which information is recorded, disseminated, accessed, and stored, digital technologies are changing the technical limits that have supplemented the legal framework of balance between ownership and public dissemination. The unlimited technological capacity to disseminate by transmission in ways that can violate the rights of copyright holders confronts equally unlimited technological capacity to prevent works from being used in ways contemplated by law. Carried to its logical extreme, either trend would destroy the balance, with results that would likely undermine core educational functions as well as radically transform the information marketplace.

In the course of these hearings, other witnesses will address the threats which failing to clarify the potential infringement liability of commercial access providers would pose to those companies -- and to all of us who rely upon their services. Here, I would note only that we share a particular concern over the impact which such a failure would have on personal privacy and freedom of expression in the network environment. To the extent that commercial service providers are made generally liable for on-line copyright infringements by their customers or constituents, we believe they will have no choice but to respond by monitoring -- or even interfering with -- private communications. Contractually, they might be permitted to take such steps. But the costs to the health of the network environment of requiring them to do so would be incalculable.

We would also like to emphasize that the universe of access providers is broader than is sometimes understood. It includes companies which provide network access commercially, but it also embraces a range of not-for-profit institutions. It is to the particular concern of those institutions which I now turn.

As a general matter, intellectual property is a significant form of social capital, whose growth depends on its circulation, exploitation, and use. As a major arena in which intellectual property is created and disseminated, educational institutions and libraries have nurtured an ethic of intellectual property based on:

- respect for the rights of creators and copyright owners;
- accurate attribution of authorship and respect for a work's integrity;
- assurance that copyrighted works may be preserved from deterioration;
- promotion of information dissemination and access; and
- economic viability of the scholarly communications system.

Unfortunately, educators and librarians will not be able to fully exploit the creative benefits of new technology if they are subjected to unwarranted on-line service provider liability or are unable to purchase or use devices essential for displaying or recording educational materials or useful other information.

Accordingly, the issue of "on-line service provider" liability is as important to libraries and educational institutions as it is to those in the telecommunications and Internet services industries. Unlike last year's debate, there now appears to be clear appreciation domestically and internationally that balanced intellectual property policy cannot stand on proprietors' rights alone. In addition, remedies to enforce proprietors' rights, and exceptions to those rights, have been and must continue to be the critical second and third pillars -- indispensable and integral elements -- of this nation's copyright system.

We believe that three key principles should be considered as Congress debates any "on-line" liability system. The first and second of these principles are of general applicability, while the third has special importance for non-profit educational institutions, archives, and libraries. They are:

I. Copyright law should foster an environment in which the broadest
possible spectrum of the public enjoys the educational and cultural
benefits of the Internet;

II. Any liability system ultimately adopted should permit the use of state-of-
the-art "navigational" systems and practices to facilitate access to
information;

III. Any service-provider liability regime adopted should respect and
incorporate the general practices and principles adopted by libraries
and educational institutions to protect individual privacy.

Permit me to elaborate on each of these principles:

I. Copyright law should foster an environment in which the
broadest possible spectrum of the public enjoys the educational and
cultural benefits of the Internet.

The nations represented at the WIPO conference in Geneva this past December -- including the United States Government -- unanimously agreed without debate that simply providing "facilities for enabling or making a communication" should not serve as the basis for copyright infringement liability based solely on the actions of someone who uses those facilities. For example, Mr. Chairman, many educational institutions are being asked by policy makers at every level of government to be the public's "on-ramps" to the information superhighway -- a role that many institutions are actively pursuing. Indeed, Congress recently voted to assure that many of these institutions receive discounted telecommunications services rates so that we can accomplish that mission.

Without reasonable insulation from liability based solely on the activities of school and library network users over which our institutions have no control, educational and library institutions may be forced by the prospect of crippling liability to call a halt to building new, or to dismantle or disable existing, access points to the Internet.

Copyright law should uphold the principle that liability for infringing activity in the network environment rests primarily with the infringing party rather than with third parties. Companies and non-profit institutions should accept responsibility for acts undertaken at their behest, but should not be held liable for the acts of individuals -- whatever their association -- who act independently. This principle is an essential underpinning of robust information commerce as well as academic freedom.

We thus opposes OSP copyright legislation that would make institutions liable for the acts of individuals acting on their own initiative, or that would impose prior censorship. Copyright enforcement provisions should uphold principles of due process in determining whether specific allegations of infringement are valid. In this connection, libraries, archives and educational institutions accept responsibility for establishing policies, carrying out due process when appropriate, and creating climates in which all those who use their facilities and resources use copyrighted materials appropriately.

We believe, Mr. Chairman, that no service provider, no phone company, no educational institution, no archive and no library which operates a computer network should be forced to factor into its plans to bring the benefits of the Internet to the public potential liability based solely on its role as an information conduit. Just as protection against the illegal use of copyrighted information is a prerequisite for copyright owners to putting their "content" on-line, so too is insulation from unreasonable liability a prerequisite for both commercial and non-commercial institutions to building, deploying and accessing the Internet.

II. Any liability system ultimately adopted should permit the use of
state-of-the-art "navigational" systems and practices to facilitate
access to information.

As you may know, Mr. Chairman, library and higher education organizations were privileged to be represented in the "all party" liability negotiations directed by Congressman Bob Goodlatte. It is our understanding that you have asked Mr. Goodlatte to reconvene those talks this year and we look forward, once again, to participating.

Early in last year's discussions regarding on-line service provider liability, it became clear that the provision of "links" to other parties' information sites on the Internet might be considered a significant factor in assigning liability to an information access provider. The entire concept of "highlighting-" and "linking-based" liability was and remains of great concern to educational institutions and libraries because of its potential to make illegal valuable activities historically at the core of education and librarianship: the pedagogical presentation and organization of lawfully acquired or referenced copyrighted information.

Libraries and educational institutions share our commercial colleagues' view that linkage is a unique and fundamentally positive technological tool. In our universes, it certainly has enormous potential to greatly enhance the educational process and the public's access to information. It should, therefore, be presumptively viewed as a practice and protocol to be encouraged rather than chilled by the Copyright Act. It is important to note that in contrast to the "conduit" issue, "one-size" policies and definitions regarding "highlighting" and "linking" may not fit all stakeholders in the complex debate to come.

III. Any service-provider liability regime adopted should respect and
incorporate the general practices and principles adopted by libraries
and educational institutions to protect individual privacy.

Last year's debate and negotiations made clear that information proprietors may request that service providers either disclose information concerning the identity or information access patterns of individuals suspected of copyright violation, or terminate services provided to the individual under suspicion. Members of the library, educational and scholarly communities wish to call attention to certain special characteristics of our activities that must be taken into account in any legislative solution to the issue of service provider liability.

For example, when you or I use the facilities of a telephone company, Internet access provider or on-line service provider facilities, we do so pursuant to a contract or subscriber agreement in which we typically acknowledge that service may be terminated under specified conditions. When a student or teacher uses a school-based information network, or a member of the public uses a branch library, however, the bases of the "transaction" - the ground rules - are quite different. Educational institutions have honor codes built on broadly accepted professional principles which, when breached, can result in expulsion or loss of privileges such as network use. Similarly, someone who breaches a library's "acceptable use" policy can lose print and electronic library privileges. In educational and library settings, however, individuals may enjoy a higher expectation of privacy than in the commercial environment. Moreover, they have a justified expectation that their rights to engage in lawful discourse, print and electronic, will be respected.

These expectations arise from institutional codes and policies which are not based on contract. Rather, they have their roots in our collective mission: promoting the growth and dissemination of knowledge. Academic freedom and the Constitutional guarantees of freedom of thought, association, and speech require that these policies be respected. Clearly, those who break the law or violate institutional use policies must be punished. But, unless the unique concerns, in particular privacy and confidentiality, which manifest themselves in library and educational institutions are recognized and respected in the service provider debate, we will put at risk the very objective on which the Framer's grounded the Constitution's Copyright Clause: promoting the "Progress of Science and useful Arts."

As creators and repositories of vast amounts of intellectual property, educational institutions, archives and libraries have both a responsibility and a need to assure that their own institutional practices conform to the requirements of intellectual property law and that their constituencies are well informed about their responsibilities. Institutional practices should set high standards for compliance and can serve as an educational tool for heightening the consciousness of individuals within the non-profit cultural communities of what the law demands.

In conclusion, Mr. Chairman, we are committed to developing a digital environment that fosters a robust information market by providing effective incentives for the creation of intellectual property, the reliable protection of proprietary rights, and appropriate exemptions from those rights designed to assure the widest possible access to and use of information. In sum, we believe that the best way to achieve that goal, and with it an effective liability system governing on-line information access, is by carefully balancing all of the affected interests.

Thank you and the Committee for this early and important opportunity to help establish the framework of the coming debate. We look forward to working closely with the Committee to update the Copyright Act to meet the challenges, and maximize the opportunities, of the digital environment.

American Association of Law Libraries
American Council of Learned Societies
American Library Association
Art Libraries Society of North America
Association of Research Libraries
College Art Association
Committee of Concerned Intellectual Property Educators
Consortium for School Networking
Conference on College Composition and Communications
Consortium of Social Science Associations
International Society for Technology in Education
Medical Library Association
Modern Language Association
National Association of Independent Schools
National Council of Teachers of English
National Education Association
National Humanities Alliance
National Initiative for a Networked Cultural Heritage
National Writers Union
Society of American Archivists
Special Libraries Association
U.S. Distance Learning Association
Visual Resources Association