Amending the copyright act for libraries and society: the Section 108 Study Group.

• Author: Gasaway, Laura N.
• Position: Symposium: Interdisciplinary Conference on the Impact of Technological Change on the Creation, Dissemination, and Protection of Intellectual Property

Libraries house copyrighted books and journals in their collections, provide intellectual access to them through catalogs and indexes, and make them available to users. Many researchers and readers are able to use library copies of the works over time, so access to the work is shared. Most libraries exist for this very purpose. Archival collections perform a similar function in that they collect papers--both unpublished and published works, organize them and make them available--often to the general public, again for shared access. These organizations, along with museums, serve public missions and each is recognized as a public good. The Copyright Act of 1976, (1) for the first time in the history of copyright, specifically recognized the unique and important role that libraries and archives play in our society. For the purposes of this paper, the word "libraries" also refers to archives as well unless they are specifically differentiated in the particular section.

The digital environment has permanently altered both the library landscape and the society they serve. Not only do libraries continue to acquire works in print but they also acquire access to materials through license agreements to provide electronic access to works, some of which are born digital. Libraries may even acquire the same work in multiple formats including both print and digital. In their role as preservers of works of literature, other written materials and media, libraries use digital technology to preserve works and make them available to users.

Libraries have always dealt with copyright issues but perhaps never more so than today. While a copyright owner may have no objection to the reproduction of works for preservation, what the library may do with preserved copies often is controversial. Should libraries be able to preserve copyrighted works by digital means and then make those digital copies available to scholars and researchers? To other libraries? And this is only one of the questions that libraries and archives seek to have answered regarding digital copies of copyrighted works. Should libraries be able to produce digital copies of analog works for a user at the request of that user? Instead of providing photocopies of articles and book chapters to satisfy interlibrary loan (ILL) requests, should libraries be able to provide a digital copy to the borrowing library for the user or directly to the end-user?

In 1976, Congress provided an exception to the exclusive rights of the copyright owner that permitted libraries and archives to reproduce and distribute copyrighted works under certain circumstances. The exception recognized that libraries provide significant benefit to society. The exceptions worked well for libraries and their users for printed works and photocopy technology and were at least tolerable to copyright holders. Works in digital format, however, present different expectations and capabilities. For libraries, digital technology represents a significantly better method of preservation, improved ways to deliver copies of reproduced works to users at their request and enhanced ability to search and use these copies. For publishers and producers, digital technology offers additional ways to create new and enhanced products for new markets, the ability to count uses of the works and the methods by which to restrict uses through technological controls.

In late 2004, the Copyright Office and the Office of Strategic Initiatives--the home of the National Digital Information Infrastructure and Preservation Program (NDIIPP) (2)--at the Library of Congress began to assemble a group of knowledgeable individuals to consider whether section 108 of the Copyright Act should be amended to reflect changes that the digital revolution has brought to libraries and archives in order to permit them to use digital technology while not unduly impacting the rights of the copyright holder. (3) Register of Copyrights Marybeth Peters had been concerned for some time that the balance in the Copyright Act had changed due to changes in technology. Peters, along Associate Librarian for Strategic Initiatives Laura Campbell, established a group of nineteen to address these issues and to make recommendations on changes needed in the law. (4) The Library of Congress provided outstanding staff support for this on-going and very time consuming effort. (5) The mission of study is stated thusly:

The purpose of the Section 108 Study Group is to conduct a reexamination of the exceptions and limitations applicable to libraries and archives under the Copyright Act, specifically in light of the changes wrought by digital media. The group will study how Section 108 of the Copyright Act may need to be amended to address the relevant issues and concerns of libraries and archives, as well as creators and other copyright holders. The group will provide findings and recommendations on how to revise the copyright law in order to ensure an appropriate balance among the interests of creators and other copyright holders, libraries and archives in a manner that best serves the national interest. (6) The Study Group held its first meeting in April 2005 and has been meeting regularly since that time to examine the issues, gather information, and discuss potential solutions to problems identified. Earlier time estimates of completion dates for the study have proven to be far too ambitious given the diversity of the members' views on these issues and the complexities of the issues. The group is now slated to complete its work in 2007.

This paper explains and details the issues being addressed by the Study Group and highlights the concerns of both libraries and those of publishers and producers. Part I discusses the present Section 108 and divides the issues into four sections: (1) eligibility for the library exception; (2) preservation and replacement copies; (3) copies for users; and (4) miscellaneous issues. Part II offers a critique of the current Section 108 and the problems for digital copies and follows the same arrangement as the prior part. Part III presents potential solutions and recommendations for the issues identified in Part II. Part IV identifies the next step for the Study Group and Part V is the conclusion. (7)

1. SECTION 108 BACKGROUND

   In order to appreciate the work of the Section 108 Study Group, it is necessary to understand Section 108 itself. Referred to as the "library exception," Section 108 represents Congressional recognition that many of the activities of libraries and archives involve reproduction and distribution of copyrighted works which are exclusive rights of the copyright owner. The exception is couched in terms of permitting libraries to reproduce and distribute copies of copyrighted works and declaring that within the conditions specified in Section 108, these activities do not constitute infringement of the rights of the copyright holder. (8)

   1. Eligibility

      Section 108(a) is the enabling subsection that states what it takes to qualify for the exceptions to the copyright owner's exclusive rights that follow. Libraries and archives are eligible institutions if they reproduce and distribute no more than one copy or phonorecord under the conditions permitted and if: (1) there is no direct or indirect commercial advantage purpose for the reproduction and distribution, (2) the collection of the institution is either open to the public or to researchers doing research in a specialized field, and (3) "the reproduction or distribution of the work includes a notice of copyright that appears on the copy." (9) If there is no such notice on the work then the library or archive must include a legend on the reproduction indicating that the work may be protected by copyright. (10)

   2. Preservation and Replacement

      Subsections (b) and (c) are the preservation and replacement sections, in which the library is copying for itself. (11) Additionally, reproduction under section 108(h) may be for preservation purposes as well. (12) Section 108(b) applies only to unpublished works and states that it is not infringement for a library to reproduce and distribute no more than three copies of an unpublished work for preservation, security or deposit for research in a another library or archive. (13) If one of the copies is digital, however, that copy may not be used outside the premises of the library or archives. (14) For published works, libraries have to satisfy more stringent requirements before they may reproduce copyrighted works. Section 108(c) permits libraries to make up to three copies of a work for replacement purposes and then only to replace a lost, damaged, deteriorating, stolen or obsolete copy of a work after the library has determined that it cannot obtain an unused replacement copy at a fair price. (15) The same restriction on digital copies of works found in subsection (b) also applies: if a copy is digital, that copy may not be used outside the physical premises of the library. (16)

      Section 108(h) was added in 1998 by the Copyright Term Extension Act (17) and is an orphan works solution to some extent. It permits libraries, archives, and nonprofit educational institutions, in the last twenty years of a work's term, to reproduce the work under certain conditions and to distribute it through copies or by posting it on the library's website. (18) The conditions are fairly onerous, however, and few libraries have actually taken advantage of the exception. The exception applies only to works in the last twenty years of their copyright term, and before a library may reproduce such a work, it must determine that the work is no longer subject to normal commercial exploitation and a copy cannot be obtained at a reasonable price or have notice from the copyright owner or its agent that either of these conditions exist. (19) Section 108(h) is somewhat broader than the rest of the section in that it permits reproduction and distribution of...