Thirteen years. That’s arguably how long the U.S. Copyright Office and many in industry and the library universe (notably including ALA president Jim Neal) have wrestled with difficult practical, legal and political questions about whether or how to modernize section 108 of the Copyright Act (17 USC §108). That’s the provision that creates a “safe harbor” from copyright infringement liability under specific circumstances for libraries and archives copying or distributing copyrighted material to preserve, secure and replace their collections (and other limited purposes). In a 70+ page “Discussion Document” released last Friday, and building on the work of the Section 108 Study Group’s own 2008 recommendations, the Copyright Office recounts the history of that effort and makes detailed proposals for updating section 108. It also provides “model” statutory language for Congress’ consideration.
ALA and its coalition colleagues are analyzing Friday’s Discussion Document and accompanying legisla-tive text. While drafted in legislative form, they have not yet been introduced (in whole or in part) as actual legislation and it is not yet clear whether they will be. More on that front as information becomes available. For the moment, as summarized by the Copyright Office, its principal findings and recommendations for changes to section 108 include:
Organization and Scope
- Reorganize section 108 to make it easier to understand and apply in practice;
- Add museums to the statute in order to increase the reach of section 108 and ensure that more works can be preserved and made available to scholars and researchers;
- Add exceptions to the rights of public display and performance where appropriate; and
- Add common-sense conditions for libraries, archives, and museums to meet in order to be eligible for section 108 coverage, so as to balance the significant expansion of the exceptions.
Preservation, Research, and Replacement Copies
- Replace the current published/unpublished distinction with a new publicly disseminated/not publicly disseminated distinction, to better reflect the ways in which commercialized works are made available;
- Allow preservation copies to be made of all works in an eligible entity’s collections, with expanded access for copies of works that were not disseminated to the public, a “dark archive” for publicly disseminated works, and replacement of the three-copy limit with a “reasonably necessary” standard;
- Expand the limits of what is allowed to be copied for research use in another institution, and replace the three-copy limit with a limit of what is “reasonably necessary” to result in a single end-use copy; and
- Add “fragile” to the list of conditions that may trigger a replacement copy, expand off-premises access for replacement copies, and replace the three-copy limit with a limit of what is “reasonably necessary” to result in a single end-use copy.
Copies for Users
- Clarify that digital distributions, displays, and performances are allowed to be made of copies made at the request of users, under certain conditions;
- Add a requirement for copies for users of an entire work or a substantial part of a work, that not only must a usable copy of the work not be available for purchase, but the user must not be able to license the use of the work; and
- Eliminate the exclusion of musical works; pictorial, graphic, or sculptural works; and motion pictures or other audio- visual works from the provisions permitting copies to be made at the request of users, under certain conditions.
Audio-visual News Programs, Last 20 Years of Protection, and Unsupervised Reproducing Equipment
- Expand the means through which copies of audio-visual news programs may be distributed;
- Expand the provision concerning exceptions in the last 20 years of copyright protection to cover all works, not only published works; and
- Clarify that the limitation of liability for patron use of unsupervised reproducing equipment includes equipment brought onto the premises by users, such as smart phones and portable scanners, and require copyright warnings be posted throughout the institution’s public areas.
Licenses and Outsourcing
- Provide that eligible institutions do not infringe a work if they make preservation or security reproduc¬tions in violation of contrary, non-bargained-for, contractual language; and
- Allow eligible institutions to contract with third parties to perform any of the reproduction functions under section 108, under specific conditions.