Overview[]
Section 108 of the 1976 Copyright Act provides certain exceptions to the exclusive rights of copyright that allow libraries and archives to conduct preservation-related activities. These exceptions were written with analog materials in mind and thus do not contemplate the need for the multiple copies necessitated by digital preservation.
Section 108 explicitly states that "[n]othing in this section . . . in any way affects the right of fair use as provided by section 107."[1]
Despite some adjustments by the Digital Millennium Copyright Act in 1998, the exceptions in section 108 are stuck in time. The exceptions did not anticipate and no longer address the ways in which copyrighted works are created, distributed, preserved, and accessed in the Information Age.
Digital preservation[]
Obtaining permission from the rights holder is one strategy to eliminate any risk of copyright infringement, but it is impractical to attempt to obtain permission for entire collections of works with many different owners, who may or may not be locatable. As a result, much digital preservation is currently being conducted under theories of fair use, but there is no assurance for libraries or archives or others conducting digital preservation that these activities are in fact fair use. The absence of copyright exceptions, coupled with the already-high costs of preservation, discourages many entities from engaging in digital preservation for any materials other than public domain content.
Activities in Copyright Office[]
In 2005, the Copyright Office partnered with the National Digital Information Infrastructure and Preservation Program of the Library of Congress to sponsor an independent study group (Section 108 Study Group), which issued a comprehensive report in March 2008 calling for an extensive revision of section 108 — The Section 108 Study Group Report.
In February of 2013 the Copyright Office and Columbia Law School held a public symposium on section 108 revision, exploring many of the issues addressed in the 2008 Section 108 Study Group Report.
The Copyright Office's more recent review of section 108 began during the summer of 2016 with a series of nearly 40 in-person and telephone meetings with interested persons, such as librarians, museum professionals, content creators, archivists, scholars, and technology professionals. The variety of perspectives and practices concerning section 108 activities that arose during these meetings provided the Copyright Office with insight into how section 108 operates or fails to operate in practice. The Copyright Office has issued the Section 108 Discussion Document in an effort to facilitate engagement with possible statutory solutions addressing this important topic.
References[]
- ↑ 17 U.S.C. §108(f)(4). H.R. Rep. No. 94-1476, at 78–79 (1976) ("Nothing in section 108 impairs the applicability of the fair-use doctrine to a wide variety of situations involving photocopying or other reproduction by a library of copyrighted material in its collections, where the user requests the reproduction for legitimate scholarly or research purposes.").