Copyright Exceptions for Libraries in the Digital Age U.S
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scholarly communication Melissa A. Brown Copyright Exceptions for Libraries in the Digital Age U.S. Copyright Office considers reform of Section 108, highlights of the symposium he U.S. Copyright Office held a sympo- In her opening remarks, Maria Pallante Tsium in conjunction with Columbia Law reiterated the Copyright Office’s view that School’s Kernochan Center for Law, Media reform of Section 108 is crucial for both and the Arts on February 8, 2013. Hosted libraries and rights holders. Libraries play a at Columbia Law School, the symposium central role in the diffusion of knowledge, gathered together representatives of libraries, and thus within the copyright system. In archives, authors, and publishers to address evaluating and proposing changes to library the current state of copyright exceptions for exceptions, the stated goal of the Copyright libraries embodied in Section 108 of the U.S. Office is to allow libraries and archives to Copyright Act, and to examine prospects for meet their responsibilities to preserve and Section 108 reform. provide access to content, while not unduly In 2011, then incoming Copyright Reg- affecting the incentives that copyright protec- istrar Maria Pallante announced a series of tion creates for authors to produce creative priorities and projects to be undertaken by works. Without reform of Section 108, Pal- the Copyright Office, key among them updat- lante emphasized, the exception will continue ing Section 108 for the digital age. As noted to become increasingly useless, narrowly by panelist Richard Rudick, retired general tailored to bygone technologies. counsel of John Wiley & Sons, the original In the view of the Copyright Office, the 108 exception was drafted in response to the alternative to reforming such a woefully out- exciting new technology of the photocopy dated exception is to repeal Section 108 and machine. Despite some later changes to 108 leave libraries to rely solely on fair use, an made as a result of the Digital Millennium outcome it considers unfair to both users and Copyright Act, it was widely agreed among owners. With fair use comes uncertainty, dis- the panelists that Section 108 has not aged agreement, the risk of litigation, and the need well. While the rise of digital media and for lawyers. As noted by several panelists, a technologies have fundamentally changed the way in which copyrighted works are made, distributed, preserved, and accessed, Section Melissa A. Brown is scholarly communication librarian at New York University Libraries, e-mail: melissa@nyu.edu 108 has not kept pace. The end result of the law’s outdatedness is its increasing failure to Contact Claire Stewart—series editor, head of digital provide libraries and archives with appropri- collections and scholarly communication service at Northwestern University—with article ideas, e-mail: ate and meaningful copyright guidance in claire-stewart@northwestern.edu the Digital Age. © 2013 Melissa A. Brown April 2013 199 C&RL News key virtue of 108 is its potential to provide sought clearer rights to preserve published clear and specific guidance to practitioners materials. Section 108 (b), the exception al- on certain library activities, complementing lowing reproduction for purposes of preser- and potentially reinforcing the flexible (some vation, currently applies only to unpublished may add unpredictable) and fact-specific works. This limitation is a source of frustra- nature of fair use. tion for archivists, because publication status can be incredibly difficult to determine, and Section 108 Study Group because in the view of archivists, the crux of The current push for Section 108 reform is the issue is the irreplaceability of the work. not the first in recent memory. Between 2005 Panelist Eric Harbeson of the University of and 2008, the Section 108 Study Group, con- Colorado Music Library noted that publica- vened by the Copyright Office and comprised tion status may or may not correspond to of stakeholders, including a mix of both irreplaceability and the need for preservation. copyright owners and users, grappled with In framing library exceptions, many how to best update Section 108 to reflect the discussions and comments distinguished be- realities of the digital age. The resulting Sec- tween exceptions purely for making digital tion 108 Study Group Report, issued in 2008, preservation copies, and exceptions involv- helped to frame the panelists’ discussion of ing providing patrons with digital access to current prospects for reform (indeed, several content. Representatives of the library and symposium panelists had participated in the archive communities expressed a desire to 108 Study Group, whether as members or have clear legal support for their preserva- interested stakeholders) on both a substantive tion activities, including mass digitization and political level. efforts, when deemed appropriate. Panelists The symposium weighed several specific and audience members emphasized that recommendations issued in the 2008 study digital preservation is not an activity that group report, and on some points there was libraries undertake lightly, but do so with fairly widespread agreement that there were, great thought, care, and coordination, not to at least in principle, desirable reforms to be mention at great expense. implemented. For example, the addition of museums Mass digitization into the Section 108 exceptions appeared to The Copyright Office also sought views on enjoy widespread support. Several specific the possibility of enacting legislation on mass recommendations were geared towards giv- digitization for preservation purposes, an is- ing libraries greater flexibility to reproduce sue outside the scope of the Section 108 Study and provide access to preservation and Group’s recommendations. Paul Aiken of the replacement copies made under Section 108 Authors Guild expressed the view that any subsections (b) and (c), such as allowing mass digitization must occur in consultation libraries to create a “reasonable number” with rights holders, even if solely for “dark of copies and to circulate digital copies archive” preservation. Further discussion off-premises. The current language of Sec- explored whether licensing and private agree- tion 108 (b) and (c)—providing that digital ments could or should play a role in library preservation and replacement copies may not preservation activities, with views ranging be made available to the public outside the from “always” to “sometimes” to “never.” premises of the library—was called out as a Library preservation exceptions were particularly outdated and burdensome restric- also considered in terms of who should be tion on library access. With digital materials, undertaking digitization, and how it should access to content is granted not to a physical be accomplished. For example, do all librar- location but to a user community. ies and archives need to have a preservation Library and archive representatives also exception, or should this exception be limited C&RL News April 2013 200 to certain trusted institutions or perhaps only the missions of libraries and archives, but are the Library of Congress? Embedded within this not within the current scope of Section 108 discussion were concerns and issues of trust nor the Study Group Report. among rightsholders as to whether libraries Yet another obstacle is the inability of and archives can adequately safeguard digital libraries to legally collect digital content that content against risks of hacking, unlawful is not licensed for institutional or educational dissemination by third parties, or mission uses, such as content from iTunes or Amazon. creep owing to the pressure put on libraries Intertwined with the scope and interpreta- by their patrons to provide ubiquitous digital tion of 108 is the availability of fair use as a access to content. separate legal basis on which libraries and Digital security risks and the anxieties archives can rely to preserve and disseminate they provoke for content owners likewise content in accord with their missions. Several colored discussions to amend Section 108 of the Section 108 Study Group’s recommen- to explicitly allow libraries to provide digital dations have already been put into practice copies via ILL or patron delivery services. by libraries based on claims of fair use. For The scope of an exception for patron copies example, Mary Minow pointed to the study was also up for debate—in the view of Mark group’s recommendation for an exception to Seeley, counsel for Elsevier, market solutions allow Web archiving as something that has and negotiated license agreements are better been adopted by libraries as “common law.” equipped to access library access needs than Similarly, William Maher expressed that the legislation, excepting for “long-tail” users and goal for archives is to be able to provide full content that may not have a market solution access to their collections online, when appro- available and thus would be appropriate for priately within fair use, and that an exception a copyright exception. limited to individual digital access would do The role of licensing was raised by library little to advance access to archival materials. advocates, as well, though unsurprisingly from The availability of fair use as a legal alter- a somewhat different point of view. For cur- native to Section 108 prompted discussion as rent digital content, library reproduction rights to whether opening up Section 108 for reform are governed by license terms and conditions, is desirable. In the words of Jonathan Band, rather than the public copyright law. Given many within the library community may ulti- the potential for these license terms to erode mately prefer to rely on federal judges rather core library access practices such as ILL, a goal than the current Congress. Band also ex- of Section 108 reform should be to prevent pressed concerns that the copyright landscape licensing terms from effectively undermining is currently too fraught with disagreement and any library exception that were to be enacted. tension to expect any meaningful consensus Panelists pointed out that, in reality and by or solution.