AAUP Addresses Opposition to Copyright Exemption for Researchers

On March 10, 2021, the AAUP signed onto a reply comment addressing opposition to its previously submitted long-form comment seeking an exemption from a prohibition on circumventing technological protection measures for text and data mining (TDM) of lawfully accessed motion pictures and lawfully accessed literary works distributed electronically. The reply comment was submitted to the US Copyright Office with Authors Alliance and the University of California, Berkeley, School of Law.

The reply comment addresses the opposition’s concern about the breadth of the initial exemption request, especially that the request could be used by a broad range of actors in many situations. The Berkeley Clinic worked with its supporters to be more specific about the types of researchers and uses that would be covered by the TDM proposed exemption and the reply comment reflects this additional work:

Petitioners do not object to clarifying that the exemption is limited to the use of TDM methods for scholarly research and teaching. The purpose of the exemption is exceedingly clear from the initial comment and supporting letters: academic researchers want to assemble corpora of works to gain the specific insights into those corpora that only TDM can yield. Faculty also want to teach their students TDM techniques—“longstanding methodological pillars” of the humanities and social sciences—using works that are more relevant, accessible, and useful to those students. Petitioners are willing to make this purpose explicit in the revised exemption. . . . The exemption seeks to enable use of TDM for noncommercial scholarship and teaching. This much is clear from the initial comment and supporting letters, but petitioners do not object to amending the language of the proposed exemption to make it clearer.

The reply comment also bolsters the fair use arguments with specificity of academic users, “A straightforward application of HathiTrust and Google Books, as well as cases that precede and follow them, yield the conclusion that TDM for academic research and teaching is a transformative fair use that does not result in market harm.” Finally, the reply comment addresses the inadequacy of alternatives to circumvention of technological protection measures:

The alternatives to circumvention proposed by opponents are inadequate. HathiTrust, while a major achievement in archiving, accessibility, and use of literary works, does not meet many researchers’ needs. Aside from usability and resource constraints, HathiTrust’s collection is limited and available only to researchers affiliated with member institutions. Commercial databases, in addition to being siloed and noninteroperable, have limited collections and do not allow researchers to use computational techniques refined to answer specific research questions. OCR and screen capture would be insufficient alternatives even if researchers had the infinite time and resources to use them in the way opponents suggest.

The AAUP continues to support the exemption because faculty and academic researchers are and will continue to be adversely affected in their ability to make fair use of motion pictures and literary works if they are prohibited from accessing certain classes of works. The AAUP is delighted to be working with the Berkeley Clinic for the first time. We will keep you apprised of any decision on the proposed exemption but we anticipate that we hear later this fall.