Section 108 Report Emerges

The Section 108 Study Group, chartered in 2005 to advise on how to update the Copyright Act's exception for libraries and archives in the digital age, has issued a report that, while ambiguous, was hailed by some as a step forward. “[The section 108 group] spent three long years looking at very complex and difficult issues,” observed Prue Adler, associate executive director, Association of Research Libraries (ARL). “That they got to this point is a major accomplishment.”

The report, delivered to Librarian of Congress James Billington, and Register of Copyrights Mary-Beth Peters, offers one clear recommendation: the section 108 exception be extended to museums. Other recommendations include broad language that could be interpreted many ways by legislators.

For example, the report suggests an amendment to section 108's “three-copy rule,” which permits libraries to make up to three copies of a published work for replacement purposes, to allow “a limited number of copies as reasonably necessary” to create and maintain “a single replacement copy.” However, there are conditions: the library must determine that a replacement copy is not available at a “fair price.” Also, the report acknowledges that “there may be circumstances under which a licensed copy of a work qualifies as a copy obtainable at a fair price.”

As for preservation, the group agreed that libraries and museums should be able to make copies of “at risk” works but suggested limiting those copies to a “reasonably necessary” number, as well as “restricting access” to the “preservation copies.” That recommendation also enumerates a laundry list of qualifications to be met before even determining which institutions can avail themselves of this exception.

Another major issue concerns 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.

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 report lists a number of issues the group considered but could not agree on—most prominently, digital interlibrary loan (ILL).