The Section 108 Study Group Report An Independent Report sponsored by the United March 2008 States Copyright Office and the National Digital Information Infrastructure and Preservation Program of the Library of Congress The Section 108 Study Group Report March 2008 An Independent Report sponsored by The United States Copyright Office and the National Digital Information Infrastructure and Preservation Program of the Library of Congress This Report was finalized without the assistance of our valued colleague Robert L. Oakley, who passed away on September 29, 2007. Bob brought a depth of experience and spirit of open inquiry to the group that improved our work immeasurably, and we were particularly saddened that he could not help us see this work through to completion. The Section 108 Study Group mourns our loss, and remembers Bob with fondness and respect. Acknowledgements Many people at the Library of Congress and the U.S. Copyright Office provided invaluable assistance to the Section 108 Study Group. We would especially like to thank Associate Librarian for Strategic Initiatives and Chief Information Officer Laura Campbell and Register of Copyrights Marybeth Peters for their unwavering support. We also thank Mary Rasenberger, Christopher Weston, Abigail Potter, Mary Rhoads, and Jenel Farrell, as well as John Warren of IP Solutions. For contributions to the preparation and writing of this Report, thanks is due to all of our Study Group colleagues. This Report is truly a work of joint authorship. But special thanks is due to two staff members mentioned above. Mary Rasenberger worked closely with the co-chairs and played a major role in preparing for meetings. Both Mary and Christopher Weston played leading roles in the drafting process. For hosting the Study Group’s public roundtable discussions we thank David Nimmer at UCLA School of Law, Joe Keeley, former counsel to the Subcommittee on Courts, the Internet and Intellectual Property of the House Judiciary Committee, and Barbara Bressler of the Center for Intellectual Property Law and Information Technology at DePaul University College of Law. Laura N. Gasaway & Richard S. Rudick Co-Chairs, Section 108 Study Group Table of Contents Executive Summary ix I. Introduction 1 A. Roadmap to the Report 1 B. Background: The Section 108 Study Group 3 1. Purpose of the Study Group 3 2. Composition of the Study Group 4 3. Overview of Study Group’s Processes and Work 4 C. The Digital Challenge: The Effect of New Technologies on the Balance of Section 108 5 II. The Legal Landscape 8 A. The Context for the Library and Archives Exceptions 8 1. The Purposes of Copyright 8 2. Overview of the Exclusive Rights 9 3. Copyright Limitations and Exceptions 11 4. The Rationale for Copyright Limitations and Exceptions 12 5. Standards and Principles for Copyright Limitations and Exceptions 12 6. Obligations Under International Treaties 13 B. Exceptions for Libraries and Archives: Section 108 and Related Laws 14 1. The Role of Libraries and Archives 14 2. Brief Background and History of Section 108 15 C. Overview of Section 108 17 1. Eligibility 17 2. Copying for Preservation and Replacement 18 3. Copies for Users 20 4. Other Provisions 21 5. Other Important Related Areas of Law 21 a. Fair Use 21 b. Significance of Publication 22 c. Technological Protection Measures 23 d. Remedies 24 e. Orphan Works 24 f. Exceptions Specific to the Library of Congress 25 III. Overarching Themes 27 A. Shared Values and Tensions 27 B. The Impact of New Technologies 28 C. The Rule of Law 28 D. Distinguishing Between Types of Works: Commercialization as a Factor? 29 E. Sovereign Immunity 30 IV. Issue Discussions 31 A. Recommendations for Legislative Change 31 1. Eligibility 31 a. Museum Eligibility Under Section 108 31 b. Additional Functional Requirements: Subsection 108(a) 34 c. Outsourcing of Section 108 Activities 39 2. Preservation and Replacement Exceptions 43 a. Background: Digital Preservation and Copyright 43 b. Rethinking the Published/Unpublished Distinction 47 c. Replacement Copying 52 d. Preservation of Unpublished Works 61 e. Preservation of Publicly Disseminated Works 69 f. Preservation of Publicly Available Online Content 80 g. Television News Exception 88 3. Miscellaneous Issues 91 a. Unsupervised Reproducing Equipment 91 b. Reorganization of the Section 108 Exceptions 93 B. Conclusions on Other Issues 95 1. Copies for Users Exceptions 95 a. Current Library and Archives Practices 95 b. Direct Copies and ILL: Subsections 108(d) and (e) 98 c. Non-Text-Based Works Excluded by Subsection 108(i) 106 C. Additional Issues 113 1. Virtual Libraries and Archives 113 2. Display and Performance of Unlicensed Digital Works 117 3. Licenses and Other Contracts 120 4. Circumvention of Technological Measures that Effectively Control Access to 123 a Work 5. E-Reserves 128 6. Pre-1972 Sound Recordings 129 7. Remedies 131 V. Conclusion and Next Steps 132 VI. Appendices A. Text of Section 108 A:134 B. Study Group Members B:137 C. List of Experts Consulted C:139 D. Federal Register Notice Vol. 71, No. 31, Docket No. 06-10801, February 16, D:140 2006 E. Commenters to Federal Register Notice Vol. 31, Docket No. 06-10801, E:144 February 16, 2006 F. Participants in the March 8, 2006 Public Roundtable, Los Angeles, California F:145 G. Participants in the March 16, 2006 Public Roundtable, Washington, DC G:146 H. Federal Register Notice Vol. 71, No. 232, Docket No. 07-10802, December 4, H:147 2006 I. Commenters to Federal Register Notice Vol. 71, No. 232, Docket No. 07-10802, I:154 December 4, 2006 J. Participants in the January 31, 2007 Roundtable, Chicago, Illinois J: 155 K. Background Paper on Section 108 K:156 Executive Summary EXECUTIVE SUMMARY Introduction Rapidly evolving digital technologies have transformed the way that works of authorship are created, disseminated, stored, preserved, accessed, and experienced for scholarly, entertainment, or other purposes. Rights holders – including authors, musicians, artists, publishers, photographers, computer programmers, record compa- nies, and motion picture studios – are now creating and distributing works in digital formats, and as a result their practices have undergone significant changes. Librar- ies, archives, and museums, in keeping with their missions to collect, preserve, and make available the cultural heritage on behalf of the American people, have likewise altered many of their traditional procedures and practices and have started to collect new materials. Increased use of digital technologies has prompted a corresponding increase in the public’s expectations regarding access to content. Users have begun to expect trustworthy, immediate desktop access to digital materials from all sources, whether local or remote. Copyright law structures many of the relationships among users, creators, and distributors of copyrighted content. Due to the rapid pace of technological and so- cial change, the law embodies some now-outmoded assumptions about technology, behavior, professional practices, and business models. Section 08 of the Copy- right Act of 976, which provides libraries and archives with specific exceptions to the exclusive rights of copyright owners, was enacted in the pre-digital era. At that time, works were created and distributed primarily in analog format, and li- brary and archives copying consisted of photoduplication and microform. Much has changed since then. The Digital Millennium Copyright Act (DMCA), enacted in 998, amended portions of section 08, but its provisions only began to address the preservation practices of libraries and archives in the digital environment, and did not attempt to be a comprehensive revision of that section. The Library of Congress’s experience in planning for the National Digital Infor- mation Infrastructure and Preservation Program (NDIIPP) and the ongoing work of the U.S. Copyright Office indicated that new technologies had altered the activities of libraries and archives in such a way as to call into question the continued relevance and effectiveness of section 08 of the Copyright Act. Consequently, NDIIPP, in cooperation with the U.S. Copyright Office, convened the 9-member Section 08 Study Group, an independent body reflecting the range of stakeholder interests. The Study Group’s mission statement, approved at its first convening session in April 2005, reads: Notes on terminology: One of the Study Group’s recommendations is to amend section 08 so that it applies to museums as well as libraries and archives. For convenience, this Report refers to “libraries and archives” throughout, but “libraries and archives” should be read to include museums for all recommendations and other proposals described in this Report, unless specifically noted. Where distinctions are made among libraries, archives, or museums, the text will refer to them separately. The term “rights holders” is used to refer to authors of all types of copyrighted works, and those to whom authors have licensed or assigned rights in their works. Section 108 Study Group Report Executive Summary The purpose of the Section 108 Study Group is to conduct a reexami- nation of the exceptions and limitations applicable to libraries and archives under the Copyright Act, specifically in light of digital tech- nologies. The group will study how section 108 of the Copyright Act may need to be amended to address the relevant issues and concerns of libraries and archives, as well as creators and other copyright holders. The group will provide findings and recommendations on how to revise the copyright law in order to ensure an appropriate balance among the interests of creators and other copyright hold- ers, libraries and archives in a manner that best serves the national interest. Copyright law should represent a balance among the legitimate interests of the different entities working with copyrighted materials, and while members of the Study Group were not always in agreement on the shape and form of that balance, all agreed on its fundamental importance.