Section 108 Study Group Issues Report on Copyright Exceptions for Libraries
Andrew Albanese -- Library Journal, 4/2/2008
- Recommendations intended to “provide a basis on which legislation could be drafted and recommended to Congress.”
- Report recommended the Section 108 exception be extended to museums
- Other major issue concerns libraries’ ability to capture “publicly disseminated online content, including web sites.”
The Section 108 Study Group has delivered its long-awaited report. The diverse 19-member panel was chartered in 2005 to inform legislative changes to update the Copyright Act’s exception for libraries and archives for the digital age, but it remains unclear how quickly, or if, the group’s carefully-worded, conditioned recommendations will ever make it into law. The were delivered to the Librarian of Congress, James Billington, and the Register of Copyrights, MaryBeth Peters, this week, and are intended to “provide a basis on which legislation could be drafted and recommended to Congress.” Overall, the report reflects significant work and discussion on a range of issues relating to libraries and copyright-but also deep, ongoing tension between publishers and libraries in the digital age.
Notably, the report recommended the Section 108 exception be extended to museums, which are currently ineligible. That, however, represents the only clear, unambiguous recommendation in the report. The others include broad language that could be interpreted many ways by legislators. For example, the report suggests Section 108’s “three copy rule,” which permits libraries make up to three copies of a published work for replacement purposes, be amended to allow “a limited number of copies as reasonably necessary” to create and maintain “a single replacement copy.” That point is further conditioned, however, on a library determining that a replacement copy is not available at a “fair price,” and an acknowledgement that “there may be circumstances under which a licensed copy of a work qualifies as a copy obtainable at a fair price.”
Preservation was perhaps the major issue addressed in the report, but once again, the broad strokes leave significant latitude for legislators. The group agreed that libraries and museums should be able to make copies of “at risk” works, but suggested conditioning that upon limiting those copies to a “reasonably necessary” number of copies, as well as “restricting access” to the “preservation copies.” That recommendation also enumerate a laundry list of qualifications to be met before even determining which institutions can avail themselves of this exception-and include a vague recommendation to “make allowances for institutions with limited resources that cannot create their own sophisticated preservation systems.”
Archiving online
Another major issue concerned libraries’ ability to capture “publicly disseminated online content, including web sites.” The group recommended that libraries be allowed to archive and make this content available for sites that are not restricted by access controls, such as passwords, but also should offer an “opt-out” for rights holders-except for the Library of Congress, which is to be allowed to capture such content regardless of the owner’s desire to opt out. In addition, libraries are to be prohibited from “engaging in any activities that are likely to materially harm the value or operations of the Internet site hosting the online content.”
The recommendations issued in the report, “reflect agreement of all participants,” the executive summary notes, although it concedes “agreement is often conditioned on satisfactory resolution of relating outstanding issues.” The report, meanwhile, listed a number of issues the group considered but could not agree on-most prominently, digital Interlibrary Loan (ILL). The group acknowledged that “the single-copy restriction on copying” for ILL be “replaced with a more flexible standard” but offered no specific guidance.
