Section 108 Study Group looks at exceptions to law for libraries; The recommendations of an independent Library of Congress panel include archival preservation of Web sites

Information Outlook,  May, 2008  

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The Section 108 Study Group, convened by the Library of Congress, has recommended changes in copyright law aimed at addressing digital rights and preservation issues.

After nearly three years of work, the independent group has issued its report and recommendations on exceptions to copyright law to address how libraries, archives, and museums deal with copyrighted materials in a digital environment. The report is available at www.section108.gov.

Section 108 is the section of the Copyright Act that provides limited exceptions for libraries and archives so that they may make copies to replace copyrighted works in their collections when necessary, preserve them for the long term, and make them available to users.

Digital technologies have radically transformed how copyrighted works are created and disseminated, and how libraries and archives preserve and make those works available. Cultural heritage institutions have begun to acquire large quantities of "born digital" works (those created in digital form) and to digitize analog works already in their collections to ensure the continuing availability of those works to future generations. Section 108 of the Copyright Act is not seen to adequately address many of the issues unique to digital media, either from the perspective of rights owners or from that of libraries and archives.

The Library of Congress convened the group under the auspices of the U.S. Copyright Office and the National Digital Information Infrastructure and Preservation Program. The Library acted as a facilitator in the process and had no control over, or influence on, the report's final recommendations.

SLA Fellow and John Cotton Dana award winner Laura N. Gasaway, associate dean for academic affairs, professor of law and former director of the law library at the University of North Carolina School of Law and former columnist, and Richard S. Rudick, former senior vice president and general counsel of John Wiley and Sons and vice chair of the board of directors of the Copyright Clearance Center, cochaired the group.

The report will serve as the basis on which legislation may be drafted and recommended to Congress.

Among the recommendations are:

* Museums should be included for Section 108 eligibility, as they perform many of the same functions as libraries and archives.

* A new exception should be added to Section 108 to permit certain qualified libraries and archives to make preservation copies of at-risk published works prior to any damage or loss. Access to these "preservation-only" copies will be limited.

* A new exception should be added to Section 108 to permit libraries and archives to capture and reproduce publicly available Web sites and other online content for preservation purposes and to make those copies accessible to users for private study, research, or scholarship. Rights holders would be able to opt out of this provision.

* Libraries and archives should be permitted to make a limited number of copies, as reasonably necessary, to create and maintain a single replacement or preservation copy. This alteration to the current three-copy limit would, among other things, enable libraries to more securely preserve digital materials, which often involves making copies.

The study group operated on a consensus basis. Where recommendations are made, they reflect agreement on the part of all participants, although that agreement is often conditioned on satisfactory resolution of related outstanding issues, as outlined in the report.

Background

Copyright law structures many of the relationships among users, creators, and distributors of copyrighted content. Due to the rapid pace of technological and social change, the law embodies some now-outmoded assumptions about technology, behavior, professional practices, and business models.

Section 108 of the Copyright Act of 1976, which provides libraries and archives with specific exceptions to the exclusive rights of copyright owners, was enacted in the pre-digital era. At that time, works were created and distributed primarily in analog format and library and archives copying consisted of photo duplication and microform. Much has changed since then.

The Digital Millennium Copyright Act, enacted in 1998, amended portions of Section 108, but its provisions only began to address the preservation practices of libraries and archives in the digital environment and did not attempt to be a comprehensive revision of that section.

The Section 108 Study Group held its inaugural meeting in April 2005 and its final meeting in January.

The Library of Congress's experience in planning for its National Digital Information Infrastructure and Preservation Program (NDIIPP) and the continuing work of the U.S. Copyright Office (part of the Library of Congress) indicated that new technologies had altered the activities of libraries and archives in such a way as to call into question the continued relevance and effectiveness of Section 108 of the Copyright Act. Consequently, NDIIPP, in cooperation with the Copyright Office, convened the Section 108 Study Group, an independent body reflecting the range of stakeholder interests. NDIIPP is the Library of Congress's national program to build a network of partners dedicated to the collection and preservation of the nation's cultural heritage in digital form. Because preservation of digital content necessarily requires the making of copies, much of NDIIPP's work is affected by copyright law.