Revising the Library Exemptions in the U.S. Copyright Act

Recommendations of the Section 108 Study Group

The full Report of the Section 108 Study Group has been released and is now available at Introduced in 1976, Section 108 of the U.S. Copyright Act specifies what are known as "the library exemptions," the conditions under and purposes for which qualifying libraries and archives can make copies of copyrighted works without infringing.

These library exemptions were framed in terms of the analogue technologies of reproduction then common. Though there have been several modifications to the Section since then, none have addressed the new capabilities, and challenges, of digital technologies.

To address these issues, the National Digital Information Infrastructure Program (NDIIP) of the Library of Congress convened the Section 108 Study Group. I was a member of this Study Group, which met fifteen times between April 2005 and January 2008. The group's charge was to recommend to the Librarian of Congress possible alterations to the law that would accommodate new technologies.

Seeking to ensure that the group's recommendations would reflect the balance required by the national interest between the concerns of libraries and archives on the one hand and rights holders on the other, the nineteen members were drawn from a variety of institutions and enterprises: public, university, and national libraries and archives; museums; commercial and nonprofit publishers; the film, music, and television industries; and photography.

Our report represents a consensus reached among nineteen people with overlapping but never identical interests after nearly three years of discussion and debate. It specifies where we were able to agree and make recommendations, although sometimes those recommendations are made with the stipulation that agreement is contingent on certain underlying conditions being met, or problems resolved. It also specifies where we could not agree and were not able to make a recommendation, and why.

The report now goes to the Librarian of Congress, James Billington, and from him to the senior U.S. official concerned with copyright law and its administration, the Register of Copyrights, MaryBeth Peters. She will decide how to implement the recommendations and begin the process of translating them into law through an amendment to the Copyright Act. That process will require its own round of public comment, discussion, and debate.

Section 108 currently says that a library or archive that is open to the public or to qualified researchers, is making copies "without any purpose of direct or indirect commercial advantage," and affixes a notice that the copy is being made under the provisions of this section, can copy:

  • an unpublished work for preservation or for deposit in another library,
  • a published work to replace a damaged or stolen copy if an unused replacement copy can't be acquired,
  •  a portion of a work for a user, including a user at another requesting library,
  • and an entire work for a user, including users at other requesting libraries, if the library has determined that a copy can't be obtained at a "fair price."

Since the current Section 108 is one of the most confusingly organized and least transparent sections of the Copyright Act, the Study Group recommends that this section of the statute be reorganized using these more logical categories: eligibility, preservation and replacement, copies for users, and miscellaneous provisions. The Study Group's recommendations are described below, but please note that these are abbreviated statements. For a full statement of the recommendations, please refer to the report itself.

Among the recommended revisions to 108 in the Eligibility category, the group suggested that:

  • museums be granted the protections afforded to libraries and archives;
  • functional requirements, such as a public service mission and trained library or archives staff, be used to determine the status of a "library" or "archive," to help define qualifying institutions in an age when the Internet has blurred these definitions;
  • and libraries and archives be allowed to outsource certain tasks permitted by Section 108, if the expertise or equipment required lies beyond the resources of libraries, archives, and their employees.

Recommended exceptions for Preservation and Replacement include permitting the creation of a limited number of copies of any at-risk materials, whether published or unpublished. The current exemption for unique unpublished works such as letters, diaries, manuscripts, and the like, for which the loss of the original is the loss of the work, is similar to today's increasing number of "born digital" published works, which do not exhibit warning signs of deterioration before they become inaccessible and are technically at risk of loss from the moment they are acquired. The group recommends exceptions for the preservation of publicly disseminated works and of publicly disseminated online content. Rights holders would be able to opt-out of having their works preserved in this way. In addition, the group recommended "that criteria be established to determine eligibility for this exception," and that these criteria would be based upon an institution's technological suitability to carrying out the preservation and maintaining the integrity of the resulting digital files.

Section 108 permits libraries and archives to make single copies for users, both directly and through interlibrary loan, under certain conditions. Currently, delivery of electronic copies to users is permitted only within the library or archive's physical premises. Amendments proposed under the Copies for Users Exceptions heading would address the question of whether to lift this restriction to permit the delivery of electronic copies to users off-premises. This was one of the most complicated and difficult questions the Study Group faced, due to the conflicting interests of libraries and archives to provide services to patrons via the internet as weighed against rights-holders' concerns about the potential for unauthorized and unregulated distribution. The group recommend that "the single-copy restriction on copying ... should be replaced with a flexible standard more appropriate to the nature of digital materials," adding that digital copies must carry adequate protections against unauthorized use.

Section 108 permits libraries and archives to copy television news programs off the air and lend the copies to users, but at present there are no guidelines as to whether this exception permits them to provide access by means other than the lending of physical copies. The group recommended an amendment that would permit electronic distribution of view-only copies of television news programs, provided that a reasonable amount of time has passed since the original broadcast and that the material was not made available for download.

As has already been mentioned, the Study Group has recommended reorganizing Section 108's provisions to make them more easily understood. Other recommendations for the Miscellaneous Issues category include an exception from liability for a patron's use of reproducing equipment such as handheld scanners or cameras, providing that the library or archive posts a visible notice that such copies are subject to copyright law.

The group also discussed a variety of other issues. On some of them the group decided changes to the law might be necessary and came to certain conclusions, but made no recommendation. On others, the group was either unable to reach a consensus, or agreed that no legislative action was appropriate at this time.

It should certainly come as no surprise that the road to reconciling the interests of rights holders and libraries has its share of potholes and speedbumps, and even a few dead ends. What is much more important, I think, is that with patience and persistence the road does go through. It took us almost three years to get here, but in the end this group of nineteen people with very diverse interests did agree upon several significant enhancements to the library and archives privileges under Section 108.

Peter Givler
Executive Director, AAUP