Building Universal Digital Libraries: An Agenda for Copyright Reform

This article proposes a series of copyright reforms to pave the way for digital library projects like Project Gutenberg, the Internet Archive, and Google Print, which promise to make much of the world’s knowledge easily searchable and accessible from anywhere. Existing law frustrates digital library growth and development by granting overlapping, overbroad, and near-perpetual copyrights in books, art, audiovisual works, and digital content. Digital libraries would benefit from an expanded public domain, revitalized fair use doctrine and originality requirement, rationalized systems for copyright registration and transfer, and a new framework for compensating copyright owners for online infringement without imposing derivative copyright liability on technologists. This article’s case for reform begins with rolling back the copyright term extensions of recent years, which were upheld by the Supreme Court in Eldred v. Reno. Indefinitely renewable copyrights threaten to marginalize Internet publishing and online libraries by entangling them in endless disputes regarding the rights to decades- or centuries-old works. Similarly, digital library projects are becoming unnecessarily complicated and expensive to undertake due to the assertion by library and copyright holding companies of exclusive rights over unoriginal reproductions of public domain works, and the demands of authors that courts block all productive digital uses of their already published but often out-of-print works. Courts should refuse to allow the markets in digital reproductions to be monopolized in this way, and Congress must introduce greater certainty into copyright licensing by requiring more frequent registration and recordation of rights. Courts should also consider the digitizing of copyrighted works for the benefit of the public to be fair use, particularly where only excerpts of the works are posted online for public perusal. A digital library like Google Print needs a degree of certainty that existing law does not provide that it will not be punished for making miles of printed matter instantly searchable in the comfort of one’s home, or for rescuing orphan works from obscurity or letting consumers preview a few pages of a book before buying it. Finally, the Supreme Court’s recognition of liability for inducement of digital copyright infringement in the Grokster case may have profoundly negative consequences for digital library technology. The article discusses how recent proposals for statutory file-sharing licenses may reduce the bandwidth and storage costs of digital libraries, and thereby make them more comprehensive and accessible