AALL Spectrum

AALL Spectrum / November/December 2019 / Volume 24, No. 2

AALL Spectrum / Published by American Association of Law Libraries

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NOVEMBER/DECEMBER 2019 | AALL SPECTRUM 37 liability. In contrast, Article 13 imposes more obligations on online platforms before the content is uploaded, rather than just requiring them to respond quickly to takedown notices after the content is uploaded. Although the directive does not explicitly require upload filters, content-sharing plat- forms will likely need to start relying on automated systems to filter content uploaded by users to avoid liability. Exceptions still exist for quotation, criticism, review, caricature, and parody, which is similar to the fair use exception in U.S. copyright law (17 U.S.C. § 107). However, automated filtering systems will inevitably filter and block content that is not infringing and that fall within these exceptions from ever being posted online. The provision weakens the abil- ity of users to share creative works that take advantage of these exceptions and will lead to blocking some speech before it occurs. Article 17 does not strike an appro- priate balance between the rights of copyright owners and the rights of individuals. The provision will prevent the free exchange of information and impede on users' rights to receive infor- mation, which goes against the core tenets of libraries. How Does the Copyright Directive Benefit Libraries? The directive does include some provi- sions and exceptions that are favorable to libraries: Text and Data Mining Exception The directive includes a new excep- tion that allows libraries to engage in text and data mining of works for the purposes of scientific research. Article 3 provides a mandatory copyright exception for research organizations (including university libraries) and cul- tural heritage organizations (including publicly accessible libraries). Text and data mining allow re- searchers to use automated techniques to analyze digital text and data to uncover and identify patterns, trends, and correlations across large datasets. Text and data mining generally require copying a large volume of copyrighted material. The content is then organized and analyzed using computer programs. For example, with text and data mining, a researcher can efficiently count how often a particular word or term is used throughout a large volume of docu- ments and then draw inferences on how the usage of that term or phrase has changed over time. Licensing agreements for electronic resources often prohibit automated searching, scraping, or downloading content, but Article 7 ensures that pub- lishers cannot use a contract to circum- vent this exception. Article 3 will have a positive effect on scientific and scholarly research as well as in the development of artificial intelligence. Preservation Exception Another exception that is good news for libraries is set out in Article 6, which allows cultural heritage institutions to make digital reproductions of works in their collections for preservation pur- poses. Preservation has always been a key mission for libraries. This provision will allow libraries to ensure that both history and culture can continue to be documented and maintained. Publishers and copyright owners will not be able to circumvent this exception either, thanks to Article 7. Digitization of Out-of-Commerce Works Articles 8-11 make it easier for cultural heritage institutions to obtain licenses to digitize and make out-of-commerce works available to the public. Out-of- commerce works are works that are still protected by copyright but are not com- mercially available. Out-of-commerce works include both out-of-print works and unavailable digital-first works. These provisions empower libraries to ensure that they can provide continued access to works even if they are no longer available for sale. What Can the U.S. Learn from the EU Directive? The United States needs to modernize and adapt its own copyright law. Even though the EU Copyright Directive does not have legal force in the United States, the effects of this directive will be felt outside of the European Union as EU member states begin to trans- pose the directive into their national laws. When considering how to adapt U.S. copyright law to the digital age, Congress should consider carving out similar exceptions for libraries not yet addressed in the library exception (17 U.S.C. § 108) and also impose a pro- vision similar to Article 7 to explicitly prevent copyright owners from using contracts or licensing agreements to cir- cumvent either the library exception or other limitations on exclusive rights. 3 EXTRA Learn more about European Copyright at bit.ly/SO19IFLA. Another exception that is good news for libraries is set out in Article 6, which allows cultural heritage institutions to make digital reproductions of works in their collections for preservation purposes. Preservation has always been a key mission for libraries. © 2019 BY SARAH REIS SARAH REIS FOREIGN & INTERNATIONAL LAW LIBRARIAN Pritzker Legal Research Center Northwestern Pritzker School of Law Chicago, IL sarah.reis@law.northwestern.edu Professionalism + Leadership At Every Level Marketing + Outreach Image © iStockPhoto.com/ Metamorworks

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