COPYRIGHT AND THE INTERNET IN 2020: REACTIONS TO THE COPYRIGHT OFFICE’S REPORT ON THE EFFICACY OF 17 U.S.C. § 512 AFTER TWO DECADES: TESTIMONY OF JONATHAN BAND COUNSEL, THE LIBRARY COPYRIGHT ALLIANCE

“With the growth of open access scholarly communications, libraries increasingly host online institutional repositories where academic authors can post papers, articles, and theses.13 The section 512(c) safe harbor shelters libraries from liability for infringing material that may be contained in the materials posted by third parties. Elsevier, for example, sent thousands of takedown notices to websites hosted by Harvard University, University of California, Irvine and academia.edu, a social networking site for academics. The articles targeted by these Elsevier notices typically had been posted by their authors, who may have transferred their copyright to Elsevier in the publication agreements. The publication agreements often allow authors to post their final, peer-reviewed manuscript of the articles, but not the final published version, i.e., as formatted by the publisher. Elsevier asserted that it pursued only final versions of published journal articles posted without their authorization. The section 512(c) safe harbor provided a mechanism for libraries to avoid getting caught in the middle of a dispute between the authors and their publishers….”