PK In the Know Podcast 30: Section 108 Study Group

From the desk of Brendan Ballou:

Digital preservation, online sharing, website archiving: these are just a few of the issues not addressed in USC Title 17 S. 108, the law governing copyright exceptions in libraries. That's why the Library of Congress has convened a study group of academics, librarians, and publishers to address the new needs of libraries and authors in a digital environment, and to make recommendations to Congress for change. The Section 108 Study Group has been meeting since 2006 and plans to issue its report sometime this year. In this episode of PK's In the Know Podcast, I sit down with Peter Hirtle, Intellectual Property Officer at the Cornell University Libraries, and one the members of the study group, to talk about the challenges posed for the study group, and some potential solutions. You can get the interview here|RSS.

First, a little background on Section 108. Until 1976, copyright permissions for libraries existed only in common law and in arrangements between publishers and libraries like the 'Gentlemen's Agreement' of 1935, which allowed libraries to make single copies of works on behalf of individual users.

But the Gentlemen's Agreement was only as sturdy as the technology it covered, and with the advent of photocopiers in the 1960's, the agreement buckled. In 1972 the US Court of Claims, ruling on the then-common practice among libraries of sharing copies of journal subscriptions, dismissed the Gentlemen's Agreement as a basis for fair use. Judge Cowen wrote:

"The "gentlemen's agreement" does not have, nor has it ever had, the force of law with respect to what constitutes copyright infringement or "fair use." ... the "agreement" was drafted at a time when photocopying was relatively expensive and cumbersome; was used relatively little as a means of duplication and dissemination; and posed no substantial threat to the potential market for copyrighted works. Beginning about 1960, photocopying changed character. The introduction to the marketplace of the office copying machine made photocopying rapid, cheap and readily available. The legitimate interests of copyright owners must, accordingly, be measured against the changed realities of technology."

Four years later Congress stepped in with the 1976 Copyright Act. Under the new law, libraries could make copies for patrons only when the following conditions were met: first, that the library was open to the public, second, that the copy contained a copyright notice, and third, that that library did not make the copy for financial gain. Libraries could make copies of works for themselves only if the work was unpublished or if the work was deteriorating and a new copy could not be bought for a fair price.

The 1976 reform helped clarify Libraries' rights, but like the Gentlemen's Agreement forty years earlier, it \was only as stable as the technologies for which it was written. Today the problems facing publishers include not just sharing photocopies, but sharing digital copies over the Internet. Section 108, as both publishers and librarians agree, must be updated to remain applicable and useful to new technologies

The Section 108 study group convened by the Library of Congress has identified four critical areas for reform:

  1. Who is eligible for Section 108 exceptions? Only 'libraries' and 'archives' with collections 'open to the public' can be considered for Section 108's provisions - but what exactly is a library? Does it have to have a physical existence, or can it be a website or online collection?

  2. How many copies of a work can libraries make, and under what circumstances?

  3. Should libraries have a new preservation-only copying exception? If libraries' only seek to preserve - not mass distribute - a published work, should they be allowed to make a digital copy?

  4. How can libraries legally create archives of websites? Since many websites offer their older content for a fee, how can libraries create these archives without undermining existing business models? Should archives be forced to maintain websites' Technical Protection Measures (TPMs)?

  5. Should libraries be allowed to share digital copies of their collections with other libraries? Under what circumstances?

  6. Can digital collections include films, music, and pictures?

These are just some of the issues the Section 108 Study Group hopes to address by the end of this year when they issue their report. The outcome of their work will serve as the basis for future congressional action.

Next week we talk with James G. Neal, University Librarian at Columbia, and another member of the Section 108 Study Group.

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