Section 108 Study Group: Copyright Exceptions for Libraries and Archives, 70434-70440 [E6-20480]

Agencies

• Library of Congress
• Copyright Office
• Copyright Office, Library of Congress

[Federal Register Volume 71, Number 232 (Monday, December 4, 2006)]
[Notices]
[Pages 70434-70440]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E6-20480]


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LIBRARY OF CONGRESS

Copyright Office

Docket No. 07-10802


Section 108 Study Group: Copyright Exceptions for Libraries and 
Archives

AGENCY: Office of Strategic Initiatives and Copyright Office, Library 
of Congress.

ACTION: Notice of a public roundtable with request for comments.

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SUMMARY: The Section 108 Study Group announces a public roundtable 
discussion on certain issues relating to the exceptions and limitations 
applicable to libraries and archives under the Copyright Act, and seeks 
written comments on these issues. This notice (1) announces a public 
roundtable discussion regarding the issues identified in this notice 
and (2) requests written comments from all interested parties on the 
issues described in this notice. These issues relate primarily to 
making and distributing copies pursuant to requests by individual 
users, as well as to provision of user access to unlicensed digital 
works.

DATES: Roundtable Discussions: The public roundtable will be held in 
Chicago, Illinois, on Wednesday, January 31, 2007, from 8:30 a.m. to 4 
p.m. C.S.T. Requests to participate must be received by the Section 108 
Study Group by 5 p.m. E.S.T. on January 12, 2007.
    Written Comments: Interested parties may submit written comments on 
any of the topics discussed in this notice from 8:30 a.m. E.S.T. on 
February 1, 2007, to 5 p.m. E.S.T. on March 9, 2007.

ADDRESSES: All written comments and requests to participate in 
roundtables should be addressed to Mary Rasenberger, Director of 
Program Management, National Digital Information Infrastructure and 
Preservation Program, Office of Strategic Initiatives, Library of 
Congress. Comments and requests to participate may be sent (1) by 
electronic mail (preferred) to the e-mail address section108@loc.gov, 
or (2) by hand delivery by a private party or a commercial, non-
government courier or messenger, addressed to the Office of Strategic 
Initiatives, Library of Congress, James Madison Memorial Building, Room 
LM-637, 101 Independence Avenue S.E., Washington, DC 20540, between 
8:30 a.m. and 5 p.m. E.S.T. If delivering by courier or messenger 
please provide the delivery service with the Office of Strategic 
Initiatives phone number: (202) 707-3300. (See Supplementary 
Information, Section 4: ``Procedures for Submitting Requests to 
Participate in Roundtable Discussions and for Submitting Written 
Comments'' below for file formats and other information about 
electronic and non-electronic submission requirements.) Submission by 
overnight service or regular mail will not be effective.
    The public roundtable will be held at DePaul University College of 
Law, Lewis Building, 10th Floor, Room 1001, 25 E. Jackson Boulevard, 
Chicago, Illinois, 60604, on Wednesday, January 31, 2007.

FOR FURTHER INFORMATION CONTACT: Christopher Weston, Attorney-Advisor, 
U.S. Copyright Office. E-mail cwes@loc.gov, Telephone (202) 707-2592, 
Fax (202) 707-0815.

SUPPLEMENTARY INFORMATION:

1. Background.

    The Section 108 Study Group was convened in April 2005 under the 
sponsorship of the Library of Congress' National Digital Information 
Infrastructure and Preservation Program (NDIIPP), in cooperation with 
the U.S. Copyright Office. The Study Group seeks written comment on and 
participation in a roundtable discussion scheduled for January 31, 
2007, on the issues described in this notice. The Study Group is an 
independent committee charged with examining how the exceptions and 
limitations to the exclusive rights under copyright law that are 
applicable specifically to libraries and archives, namely those set out 
in section 108 of the Copyright Act, may need to be amended to take 
account of the widespread use of digital technologies. More detailed 
information regarding the Section 108 Study Group and its work can be 
found at https://www.loc.gov/section108.
    Section 108 was included in the 1976 Copyright Act in recognition 
of the vital role of libraries and archives to our nation's education 
and cultural heritage, and their unique needs in serving the public. 
The exceptions were carefully crafted to maintain a balance between

[[Page 70435]]

the legitimate interests of libraries and archives on the one hand, and 
rights-holders on the other, in a manner that best serves the national 
interest.
    The evolution of copyright law demonstrates that the technologies 
available at any given time necessarily influence where and how 
appropriate balances can be struck between the interests of rights-
holders and users. As the Copyright Office recognized in 1988, it is 
important to review the section 108 exceptions periodically to ensure 
that they take account of new technologies in maintaining a beneficial 
balance among the interests of creators and other rights-holders and 
libraries and archives. See The Register of Copyrights, Library 
Reproduction of Copyrighted Works (17 U.S.C. 108): Second Report 128-29 
(1988). In that spirit, the Section 108 Study Group is charged with the 
task of identifying those areas in which new technologies have changed 
the activities of libraries and archives, users, and rights-holders, so 
that the effectiveness or relevance of applicable section 108 
exceptions are called into question. The Study Group will attempt to 
formulate appropriate, workable solutions where amendment is 
recommended.
    In March 2006, the Study Group held public roundtable discussions 
in Los Angeles, California, and Washington, D.C., and requested written 
comments on issues relating to general eligibility for the section 108 
exceptions, as well as preservation and replacement copying. 
Specifically, interested parties were asked to comment on (1) proposed 
amendments to the preservation and replacement exceptions in 
subsections 108(b) and (c), (2) a proposal to permit preservation 
copies of published works in limited circumstances, (3) a proposal to 
permit preservation copies of certain types of Internet content, and 
(4) questions on what entities should be eligible to take advantage of 
the section 108 exceptions. With regard to the latter, the Study Group 
considered questions of whether to restrict section 108 eligibility to 
nonprofit and government entities, whether to expressly include purely 
virtual entities, and whether to include museums. The Study Group 
anticipates that it will recommend that section 108 be amended to cover 
museums as well as libraries and archives. Although museums are not 
expressly addressed in this notice, the Study Group requests that you 
consider the questions set forth below in light of their potential 
effects on museums, as well as on libraries and archives. The written 
comments and roundtable transcripts from March 2006 are available on 
the Web site https://www.loc.gov/section108.
    Recently, the Study Group examined the provisions of section 108 
governing copies made by libraries and archives at the request of 
users, including interlibrary loan copies, as well as whether any new 
provisions relating to copies, performances or displays made in the 
course of providing access are necessary. Specifically, the Study Group 
seeks public input on whether any amendment is warranted to (1) the 
subsection 108(d), (e) and (g) provisions addressing copies made for 
users, including copies made under interlibrary loan arrangements; (2) 
the exclusions currently set out in subsection 108(i) that prohibit 
libraries and archives from taking advantage of subsections (d) and (e) 
for most non-text-based works; and (3) allow libraries and archives to 
make copies of unlicensed electronic works in order to provide user 
access and to provide access via performance or display.
    Note that any amendments to section 108 must conform to the United 
States' international obligations under the Berne Convention to provide 
exceptions to exclusive rights only ``in certain special cases'' that 
do ``not conflict with the normal exploitation of the work'' and do not 
``unreasonably prejudice the legitimate interests'' of the rights-
holder. The Berne Convention for the Protection of Literary and 
Artistic Works, Sept. 9, 1886, art. 9(2), 25 U.S.T. 1341, 828 U.N.T.S. 
221.
    Nothing in this Federal Register notice is meant to reflect a 
consensus or recommendation of the Study Group. Discussions are ongoing 
in the areas of inquiry described below, and the input the Study Group 
receives from the public through the roundtable, the written 
submissions, and otherwise is intended to further those discussions.
    Pursuant to 2 U.S.C. 136, the Study Group now seeks input, both 
through written comment and participation in the public roundtable 
described in this notice, on whether there are compelling concerns in 
any of the areas identified that merit a legislative or other solution 
and, if so, which solutions might effectively address those concerns 
without conflicting with the legitimate interests of other 
stakeholders.

2. Areas of Inquiry.

    Public Roundtable. Participants in the roundtable discussions will 
be asked to respond to the specific questions set forth below in each 
topic area in this Federal Register notice.

    Written Comments. The Study Group also seeks written comment on the 
topic areas and specific questions identified in this Federal Register 
notice.

3. Specific Questions.

    The Study Group seeks written comment and participation in the 
roundtable discussions on the questions set forth below in this Section 
3, inclusive of Topics A, B and C.

    TOPIC A: AMENDMENTS TO CURRENT SUBSECTIONS 108(d), (e), AND (g)(2) 
REGARDING COPIES FOR USERS, INCLUDING INTERLIBRARY LOAN

    General Issue

    Should the provisions relating to libraries and archives making and 
distributing copies for users, including via interlibrary loan (which 
include the current subsections 108(d), (e), and (g), as well as the 
CONTU guidelines, to be explained below) be amended to reflect 
reasonable changes in the way copies are made and used by libraries and 
archives, taking into account the effect of these changes on rights-
holders?

    Background

    Subsections 108 (d) and (e) provide exceptions to the exclusive 
rights of reproduction and distribution, permitting libraries and 
archives to make single copies of copyrighted works for users. 
Subsection (d) permits the copying of articles or portions of works, 
and subsection (e) allows the copying of entire works in limited 
circumstances.
    Specifically, subsection (d) allows libraries and archives to 
reproduce and distribute a single copy of ``no more than one article or 
other contribution to a copyrighted collection or periodical issue, or 
. . . a copy or phonorecord of a small part of any other copyrighted 
work.'' 17 U.S.C. 108(d) (2003). Subsection (e) allows the reproduction 
and distribution of an ``entire work, or . . . a substantial part of 
it'' if the library or archives first determines, ``on the basis of a 
reasonable investigation,'' that ``a copy or phonorecord of the work 
cannot be obtained at a fair price.'' 17 U.S.C. 108(e). Additionally, 
both subsections require that (1) the copy become the property of the 
requesting user (so that libraries and archives cannot use these 
exceptions as a means to enlarge their collections, see Melville B. 
Nimmer & David Nimmer, Nimmer on Copyright Sec.  8.03[E][2][b] (2004)), 
(2) the library or archives making the copy has no notice that the copy 
will be used for any purpose other than ``private study, scholarship, 
or research,'' 17 U.S.C. 108(d)(1) and (e)(1), and (3) the

[[Page 70436]]

library or archives displays prominently at the place where orders are 
accepted a copyright warning in accordance with requirements provided 
by the Register of Copyrights. This notice must also appear on the 
order form. 17 U.S.C. 108(d)(2) and (e)(2). Subsections (d) and (e) 
apply where a user makes a direct request of the library or archives 
providing the copy, as well as where copies are provided by another 
library or archives through interlibrary loan. Interlibrary loan is the 
practice through which libraries request material from, or supply 
material to, other libraries. Its purpose is to obtain, upon request of 
a library user, material not available in the user's own library. Where 
an entire work, such as a book, is sought, the library's copy of the 
book itself is usually delivered to the requesting user's library, 
called the borrowing library. There are cases, however, where it is 
unsafe or impractical to ship the work, such as if the copy is 
particularly fragile, rare, or unwieldy. In such cases, the fulfilling 
library or archives may create and deliver a copy instead, provided a 
copy cannot otherwise be obtained at a fair price and the other 
conditions of subsection (e) are met. Where just a portion of the work 
is sought, the library or archives may provide a copy under the 
conditions set out in subsection (d).
    The scope of subsections (d) and (e) is limited by subsection (g), 
which states that the section 108 exceptions apply only to ``the 
isolated and unrelated reproduction and distribution of a single copy 
or phonorecord of the same material on separate occasions.'' 17 U.S.C. 
108(g). Subsection (g)(1) further mandates that the provisions do not 
apply where a library or archives, or its employee:

     is aware or has substantial reason to believe that it is 
engaging in the related or concerted reproduction or distribution of 
multiple copies or phonorecords of the same material, whether made 
on one occasion or over a period of time, and whether intended for 
aggregate use by one or more individuals or for separate use by the 
individual members of a group . . . .
17 U.S.C. 108(g)(1). In addition, interlibrary loan or other user 
copies of articles or small portions of larger works under 
subsection (d) are limited by subsection (g)(2). This subsection 
states that section 108 does not permit the ``systematic 
reproduction of single or multiple copies or phonorecords of 
material described in subsection (d),'' and clarifies that copies 
made for interlibrary loan purposes do not violate the prohibition 
against systematic copying provided they ``do not have, as their 
purpose or effect, that the library or archives receiving such 
copies or phonorecords for distribution does so in such aggregate 
quantities as to substitute for a subscription to or purchase of 
such work.'' 17 U.S.C. 108(g)(2). This provision was included with 
the intention of preventing certain practices from developing under 
the rubric of ``interlibrary loan,'' such as systematic arrangements 
among libraries to effectively divide up and share subscriptions or 
purchases (such as where libraries X, Y, and Z all would like to 
obtain journals A, B, and C, so they agree that library X will 
purchase a subscription to journal A, library Y to journal B, and 
library Z to journal C, and they will share each subscription with 
each other through interlibrary loan). It was agreed in 1976 that 
these types of consortial buying arrangements should not be 
sanctioned by section 108 because by tipping the balance too far in 
favor of the interests of libraries they would materially affect 
sales.

    Guidelines for interpreting the phrase ``such aggregate quantities 
as to substitute for a subscription to or purchase of such work'' were 
promulgated in 1976 by the National Commission on New Technological 
Uses of Copyrighted Works (CONTU) at the request of Congress and 
published in the Conference Report on the Copyright Act of 1976. The 
CONTU guidelines are not law, but were endorsed by Congress as a 
``reasonable interpretation'' of subsection (g)(2). H.R. Conf. Rep. No. 
94-1733, at 72-74 (1976). The guidelines (available in full at https://
www.copyright.gov/circs/circ21.pdf) state 
that a library may not receive in a single calendar year more than five 
copies of an article or articles published in any given periodical 
within five years prior to the date of the request. The guidelines do 
not govern interlibrary loan copies of periodical materials published 
more than five years prior to a request. In addition, the guidelines 
provide that a library may not receive within a single calendar year 
more than five copies of or from any given non-periodical work -- such 
as fiction and poetry.
    The CONTU guidelines also include certain administrative 
requirements. All interlibrary loan reproduction requests must be 
accompanied by a certification that the request conforms to the 
guidelines, and libraries and archives that request copies must keep 
records of all fulfilled interlibrary loan reproduction requests for at 
least three full calendar years after the requests are made.
    Subsection 108(i) further qualifies subsections (d) and (e) by 
functionally limiting their application primarily to text-based works. 
Subsection (i) states that copies for users may not be made from:

     a musical work, a pictorial, graphic or sculptural work, or a 
motion picture or other audiovisual work other than an audiovisual 
work dealing with news, except that no such limitation shall apply 
with respect to . . . pictorial or graphic works published as 
illustrations, diagrams, or similar adjuncts to works of which 
copies are reproduced or distributed in accordance with subsections 
(d) and (e).
17 U.S.C. 108(i).\1\ For brevity's sake, this notice will refer to 
those categories of works excluded from subsections (d) and (e) by 
subsection (i) as ``non-text-based works,'' and those currently 
covered by (d) and (e) as ``text-based.'' A further description of 
subsection (i) and questions about whether and how it might be 
amended are set forth in Topic B, below.

    \1\Note that subsection(i) does not exclude pantomimes, 
choreographic works, or sound recordings that do not incorporate 
musical works from the subsection (d) and (e) exceptions.
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    The current subsections (d) and (e) were enacted with the Copyright 
Act of 1976, and, as such, were drafted with analog copying in mind, 
namely photocopying. Nothing in the provisions expressly precludes 
their application to digital technologies. However, digital copying 
under subsections (d) and (e) is effectively barred by subsection 
108(a)'s single-copy limit. Subsection (a) states that ``it is not an 
infringement of copyright for a library or archives, or any of its 
employees acting within the scope of their employment, to reproduce no 
more than one copy or phonorecord of a work, except as provided in 
subsections (b) and (c).'' 17 U.S.C. 108(a) (emphasis added). As a 
practical and technical matter, producing a digital copy generally 
requires the production of temporary and incidental copies, and 
transmitting the copy via digital delivery systems such as e-mail 
requires additional incidental copies. The Copyright Act does not 
provide any express exception for such copies, although section 107 
(which sets forth the fair use exceptions) might apply in some cases, 
and licenses might be implied in others.
    Libraries and archives maintain that their missions require them to 
be able to make and/or provide digital copies to users ``both directly 
and via interlibrary loan'' in order to respond to the fact that 
research, scholarship, and private study are now conducted in a digital 
environment. There is an increasing amount of so-called ``born-
digital'' material in the collections of libraries and archives, and 
many users expect to receive materials electronically. There are also 
increased efficiencies and decreased costs when digital technologies 
are used. Overall, it is argued that it makes little sense in this day 
and age to require libraries and archives to print analog copies of 
requested materials and deliver them in person, by mail, or by fax. The 
Study

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Group's understanding is that, as a matter of practice, some libraries 
and archives do in fact already engage in digital copying in making 
copies for users under section 108, and necessarily make incidental 
intermediate digital copies in doing so, but do not retain those copies 
and often deliver a non-electronic version to the user.
    It is important to distinguish between permitting libraries and 
archives to make digital copies for users and permitting digital 
delivery of those copies. Permitting the making of digital copies for 
users would provide increased flexibility in how libraries and archives 
can produce the copies. Those digital copies might be distributed in 
any number of ways, for instance: (1) a photocopy could be made from an 
analog source and then sent via fax or mail to the requesting library; 
(2) a printout could be made from a digital source to create an analog 
copy, which is then sent via fax or mail to the requesting library; (3) 
a digital source file could be sent to the requesting library via e-
mail or posted on a Web site with a secure URL for access by the user; 
or (4) a digital scan could be made from an analog source, which is 
then sent electronically as in example number three. Electronic 
delivery, as in examples three and four above, would provide increased 
efficiency and would allow libraries and archives and their users to 
take greater advantage of digital technologies to enable increased 
access to those works unlikely to be found in local libraries. 
Electronic delivery raises distinct issues from digital copying.
    Just as digital technologies allow libraries and archives new 
opportunities to serve the public, the same technologies allow 
copyright owners to develop new business models and modes of 
distribution. Rights-holders have remarked that giving libraries and 
archives the ability to deliver copies to users electronically, unless 
reasonably limited, potentially could cause significant harm to rights-
holders by undermining markets for digital works. Many rights-holders 
are shifting toward new models of distribution and payment. For 
instance, markets are emerging for the online purchase of articles or 
small portions of text-based works. Theoretically, if a user can obtain 
a copy online from any library through interlibrary loan, he or she 
might be less likely to purchase a copy, even if purchases could be 
made conveniently. An additional concern is that copies provided to 
users electronically are susceptible to downloading by the user and to 
downstream distribution via the Internet, potentially multiplying many 
times over and displacing sales.
    Rights-holders are also concerned about digital copies being made 
available by libraries and archives under subsections (d) and (e) to 
users outside their traditional user communities, without the mediation 
of the user's own library. Online technologies allow libraries and 
archives to serve anyone regardless of geographic distances or 
membership in a community. Many of the section 108 exceptions were put 
in place on the assumption that certain natural limitations, or 
inherent inefficiencies in making photocopies, would prevent the 
exceptions from unreasonably interfering with the market for the work. 
For example, it was presumed that users had to go to their local 
library to make an interlibrary loan request. The technological 
possibility of direct digital delivery did not exist. But if it were to 
become possible under the 108 exceptions, for instance, for any user 
electronically to request free copies from any library from their 
desks, that natural friction would break down, as would the balance 
originally struck by the provisions. As such, the potential for lost 
sales could increase from negligible to measurable against the bottom 
line, and as such ``conflict with the normal exploitation of the 
work.'' Berne Convention, art. 9(2).
    One could, for instance, envision direct-to-user interlibrary loan 
arrangements where a user could search for, request and receive a 
reproduction of a copyrighted work online from any library without 
having to go through the user's own library that would directly compete 
with the rights-holders' markets. It is not clear to the Study Group 
that the existing provisions of subsections (d) and (e) would prevent 
libraries and archives from providing this type of universal on-demand 
access if digital copying and delivery are permitted without further 
qualification. While subsection (g) and the CONTU guidelines would 
limit the ability to use subsections (d) and (e) for such interlibrary 
loan practices for certain materials, they would not necessarily 
eliminate it. The question then is how to craft rules around digital 
copying and delivery to enable libraries and archives to service users 
efficiently, without opening up the exception in a way that could 
materially interfere with markets for copyrighted works just as 
subsections (d) and (e) were limited in 1976 by subsection (g) in order 
to avoid the potential for those exceptions to be used in a way that 
would cause material market harm.
    The primary issue for comment and discussion in Topic A is whether 
and under what circumstances digital copying and distribution under 
subsections (d) and (e) should be allowed. In responding to the 
questions posed in Topic A, please note that the Study Group is seeking 
responses regarding the application of subsections (d) and (e) as 
currently limited by subsection (i) (i.e., principally restricted to 
text-based materials). Questions about applying subsections (d) and (e) 
to non-text-based works will be addressed in Topic B. Also note that 
the Topic A questions address copies made for a library's or archives' 
own users, as well as interlibrary loan copying.
    Specific Questions
    1. How can the copyright law better facilitate the ability of 
libraries and archives to make copies for users in the digital 
environment without unduly interfering with the interests of rights-
holders?
    2. Should the single-copy restriction for copies made under 
subsections (d) and (e) be replaced with a flexible standard more 
appropriate to the nature of digital materials, such as ``a limited 
number of copies as reasonably necessary for the library or archives to 
provide the requesting patron with a single copy of the requested 
work''? If so, should this amendment apply both to copies made for a 
library's or archives' own users and to interlibrary loan copies?
    3. How prevalent is library and archives use of subsection (d) for 
direct copies for their own users? For interlibrary loan copies? How 
would usage be affected if digital reproduction and/or delivery were 
explicitly permitted?
    4. How prevalent is library and archives use of subsection (e) for 
direct copies for their own users? For interlibrary loan copies? How 
would usage be affected if digital reproduction and/or delivery were 
explicitly permitted?
    5. If the single-copy restriction is replaced with a flexible 
standard that allows digital copies for users, should restrictions be 
placed on the making and distribution of these copies? If so, what 
types of restrictions? For instance, should there be any conditions on 
digital distribution that would prevent users from further copying or 
distributing the materials for downstream use? Should user agreements 
or any technological measures, such as copy controls, be required? 
Should persistent identifiers on digital copies be required? How would 
libraries and archives implement such requirements? Should such

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requirements apply both to direct copies for users and to interlibrary 
loan copies?
    6. Should digital copying for users be permitted only upon the 
request of a member of the library's or archives' traditional or 
defined user community, in order to deter online shopping for user 
copies? If so, how should a user community be defined for these 
purposes?
    7. Should subsections (d) and (e) be amended to clarify that 
interlibrary loan transactions of digital copies require the mediation 
of a library or archives on both ends, and to not permit direct 
electronic requests from, and/or delivery to, the user from another 
library or archives?
    8. In cases where no physical object is provided to the user, does 
it make sense to retain the requirement that ``the copy or phonorecord 
becomes the property of the user''? 17 U.S.C. 108(d)(1) and (e)(1). In 
the digital context, would it be more appropriate to instead prohibit 
libraries and archives from using digital copies of works copied under 
subsections (d) and (e) to enlarge their collections or as source 
copies for fulfilling future requests?
    9. Because there is a growing market for articles and other 
portions of copyrighted works, should a provision be added to 
subsection (d), similar to that in subsection (e), requiring libraries 
and archives to first determine on the basis of a reasonable 
investigation that a copy of a requested item cannot be readily 
obtained at a fair price before creating a copy of a portion of a work 
in response to a patron's request? Does the requirement, whether as 
applied to subsection (e) now or if applied to subsection (d), need to 
be revised to clarify whether a copy of the work available for license 
by the library or archives, but not for purchase, qualifies as one that 
can be ``obtained''?
    10. Should the Study Group be looking into recommendations for 
revising the CONTU guidelines on interlibrary loan? Should there be 
guidelines applicable to works older than five years? Should the record 
keeping guideline apply to the borrowing as well as the lending library 
in order to help administer a broader exception? Should additional 
guidelines be developed to set limits on the number of copies of a work 
or copies of the same portion of a work that can be made directly for 
users, as the CONTU guidelines suggest for interlibrary loan copies? 
Are these records currently accessible by people outside of the library 
community? Should they be?
    11. Should separate rules apply to international electronic 
interlibrary loan transactions? If so, how should they differ?
    TOPIC B: AMENDMENTS TO SUBSECTION 108(i)
    General Issue
    Should subsection 108(i) be amended to expand the application of 
subsections (d) and (e) to any non-text-based works, or to any text-
based works that incorporate musical or audiovisual works?
    Background
    As noted in the background to Topic A above, subsection (i) 
excludes most categories of non-text-based works from the exceptions 
provided to libraries and archives under subsections (d) and (e).
    Questions have been raised as to why this exclusion was written 
into the law. The relevant House, Senate, and Conference Reports are 
silent on the matter, beyond the House Report's emphasizing that 
libraries and archives are free to avail themselves of the section 107 
fair use factors in copying non-text-based materials for users. See 
H.R. Rep. No. 94-1476, at 78 (1976). One likely reason for the 
exclusion is that the principal copying device of concern in 1976, when 
section 108 was enacted, was the photocopier. Most libraries and 
archives did not possess the technology to make quality copies of non-
text-based works and so may not have pressed for the right to do so.
    As more material is generated in digital media that blurs the lines 
between traditional format types, subsection (i)'s exclusion of most 
non-text-based categories of works is being called into question. 
Increasingly, works are produced in multimedia formats, including some 
traditionally text-based works, such as presentations, papers, and 
journals. It has been argued that excluding these categories of works 
from some accommodation under subsections (d) and (e) hampers scholarly 
access to a critical and growing body of intellectual and creative 
material. In addition, restrictions on copies for users of non-text-
based works are seen by some as placing a greater burden on 
researchers, scholars, and students of music, film, and the visual arts 
than on those who study text-based works, in that there are greater 
obstacles to obtaining research materials.
    Eliminating the subsection (i) exclusions would raise a number of 
challenges, however. The subsection (d) and (e) exceptions were drafted 
to address text-based works; there are legitimate questions as to 
whether the provisions' respective conditions can be applied 
successfully to non-text-based materials in a digital environment. For 
instance, the current subsection (d) boundaries of ``an article or 
other contribution to a copyrighted collection or periodical issue,'' 
17 U.S.C. 108(d), do not neatly apply to non-text-based works. In the 
context of section 108, is one song on an album equivalent to an 
article in a journal? Is one photograph an entire work by itself or 
part of a larger copyrighted compilation? What if the song or 
photograph is available individually? In addition, business models used 
to market and distribute content may be affected differently depending 
on the media. Given evolving online entertainment business models, the 
ability to make and/or distribute digital copies could have different 
effects on markets for recorded sound and film, for instance, than on 
markets for text-based materials. Each of the issues raised previously 
in Topic A should be reconsidered in light of non-text-based media, as 
it is possible that views may change depending on the media.
    Specific Questions
    1. Should any or all of the subsection (i) exclusions of certain 
categories of works from the application of the subsection (d) and (e) 
exceptions be eliminated? What are the concerns presented by modifying 
the subsection (i) exclusions, and how should they be addressed?
    2. Would the ability of libraries and archives to make and/or 
distribute digital copies have additional or different effects on 
markets for non-text-based works than for text-based works? If so, 
should conditions be added to address these differences? For example: 
Should digital copies of visual works be limited to diminished 
resolution thumbnails, as opposed to a ``small portion'' of the work? 
Should persistent identifiers be required to identify the copy of a 
visual work and any progeny as one made by a library or archives under 
section 108, and stating that no further distribution is authorized? 
Should subsection (d) and (e) user copies of audiovisual works and 
sound recordings, if delivered electronically, be restricted to 
delivery by streaming in order to prevent downloading and further 
distribution? If so, how might scholarly practices requiring the 
retention of source materials be accommodated?
    3. If the exclusions in subsection (i) were eliminated in whole or 
in part, should there be different restrictions on making direct copies 
for users of non-text-based works than on making interlibrary loan 
copies? Would applying the interlibrary loan framework to non-text-
based works

[[Page 70439]]

require any adjustments to the CONTU guidelines?
    4. If the subsection (i) exclusions were not eliminated, should an 
additional exception be added to permit the application of subsections 
(d) and (e) to musical or audiovisual works embedded in textual works? 
Would doing so address the needs of scholars, researchers, and students 
for increased access to copies of such works?
    TOPIC C: LIMITATIONS ON ACCESS TO ELECTRONIC COPIES, INCLUDING VIA 
PERFORMANCE OR DISPLAY
    General Issue
    Should section 108 be amended to permit libraries and archives to 
make temporary and incidental copies of unlicensed digital works in 
order to provide user access to these works? Should any exceptions be 
added to the copyright law to permit limited public performance and 
display in certain circumstances in order to allow for user access to 
unlicensed digital works?
    Background
    Access to digital materials particularly those that exist in purely 
electronic form is generally granted pursuant to a license. There are, 
however, instances in which libraries and archives have lawfully 
obtained copies of electronic materials for which they have no license, 
and it is expected that this may increasingly be the case. Examples 
include donated personal or business files such as e-mails or other 
documents (where the donor agreement is silent on use rights), 
electronic manuscripts such as drafts of novels or notes, and legally 
captured Web sites. The mediation of a computer or other machine is 
necessary to perceive these works, and in the course of rendering the 
works in perceivable form, temporary and incidental copies are made. 
Libraries and archives have no clear guidance on whether they may make 
the copies incidental or otherwise required to perceive digital works.
    In some cases, a license to make temporary, incidental copies of 
unlicensed digital works can be implied. For instance, it is commonly 
accepted that there are implied rights to make the incidental copies 
necessary to play a DVD or CD on a computer. The question is what, if 
any, implied rights exist for libraries and archives to facilitate 
access to other kinds of materials? What about works acquired in purely 
electronic form that are stored on a library's or archives' servers 
from which they must be copied and transmitted to a terminal for user 
access? In addition, display and/or performance as well as reproduction 
rights may be implicated in accessing these works.
    The Study Group seeks input on how significant an issue this is 
whether libraries and archives have and are likely in the future to 
have a sufficient number of unlicensed digital works to merit 
legislative attention.
    The European Union's Directive on the Harmonization of Certain 
Aspects of Copyright and Related Rights in the Information Society 
provides one potential model for addressing these questions. It directs 
that member states may enact copyright exceptions permitting publicly 
accessible libraries, museums, educational institutions, and archives 
to communicate or make available ``for the purpose of research or 
private study, to individual members of the public by dedicated 
terminals on the[ir] premises . . . works and other subject-matter not 
subject to purchase or licensing terms which are contained in their 
collections.'' Council Directive 2001/29/EC, art. 5(3)(n), 2001 O.J. (L 
167) 10, 17. Would a similar exception be appropriate in the U.S?
    Certain digital works can be accessed only through display or 
performance. In providing access to these works, libraries and archives 
that are open to the public (as they must be to qualify under 
subsection 108(a)) may need to publicly display or perform the works. 
For instance, if a library, archives, or museum publicly exhibits a 
work of audiovisual art, a motion picture, or a musical work, the 
exhibition would normally constitute a public performance. There are 
currently no express exceptions in section 108 that address public 
performance or display. Section 109(c) of the Copyright Act provides an 
applicable exception to the display right:
    [T]he owner of a particular copy lawfully made under this title, 
or any person authorized by such owner, is entitled, without the 
authority of the copyright owners, to display that copy publicly, 
either directly or by the projection of no more than one image at a 
time, to viewers present at the place where the copy is located.

17 U.S.C. 109(c) (2003). This provision gives libraries and archives 
some leeway in displaying copies that they own, but it does not address 
the issues of any incidental copies that may be necessary in order to 
achieve this display. There is no parallel exception in the Copyright 
Act for public performances.

    Note that for purposes of this discussion it is assumed that where 
the work was acquired through a license, the terms of the license 
govern and trump the section 108 exceptions, per subsection 108(f)(4).
    Specific Questions
    1. What types of unlicensed digital materials are libraries and 
archives acquiring now, or are likely to acquire in the foreseeable 
future? How will these materials be acquired? Is the quantity of 
unlicensed digital material that libraries and archives are likely to 
acquire significant enough to warrant express exceptions for making 
temporary copies incidental to access?
    2. What uses should a library or archives be able to make of a 
lawfully acquired, unlicensed digital copy of a work? Is the EU model a 
good one namely that access be limited to dedicated terminals on the 
premises of the library or archives to one user at a time for each copy 
lawfully acquired? Or could security be ensured through other measures, 
such as technological protections? Should simultaneous use by more than 
one user ever be permitted? Should remote access ever be permitted for 
unlicensed digital works? If so, under what conditions?
    3. Are there implied licenses to use and provide access to these 
types of works? If so, what are the parameters of such implied licenses 
for users? What about for library and archives staff?
    4. Do libraries and archives currently rely on implied licenses to 
access unlicensed content or do they rely instead on fair use? Is it 
current library and archives practice to attempt to provide access to 
unlicensed digital works in a way that mirrors the type of access 
provided to similar analog works?
    5. Are the considerations different for digital works embedded in 
tangible media, such as DVDs or CDs, than for those acquired in purely 
electronic form? Under which circumstances should libraries and 
archives be permitted to make server copies in order to provide access? 
Should the law permit back-up copies to be made?
    6. Should conditions on providing access to unlicensed digital 
works be implemented differently based upon the category or media of 
work (text, audio, film, photographs, etc.)?
    7. Are public performance and/or display rights necessarily 
exercised in providing access to certain unlicensed digital materials? 
For what types of works? Does the copyright law need to be amended to 
address the need to make incidental copies in order to display an 
electronic work? Should an exception be added for libraries and 
archives to also perform unlicensed electronic works in certain 
circumstances, similar to the 109(c) exception for display? If so, 
under what conditions?

[[Page 70440]]

4. Procedure for Submitting Requests to Participate in Roundtable 
Discussions and for Submitting Written Comments.

    Requests to Participate in Roundtable Discussions. The roundtable 
discussions will be open to the public. Persons wishing to participate 
in the discussions must submit a written request to the Section 108 
Study Group. The request to participate must include the following 
information: (1) the name of the person desiring to participate; (2) 
the organization(s) represented by that person, if any; (3) contact 
information (address, telephone, telefax, and e-mail); and (4) a 
written summary of no more than four pages identifying, in order of 
preference, in which of the three general roundtable topic areas the 
participant (or his or her organization) would most like to participate 
and the specific questions the participant wishes to address in each 
topic area.
    Space and time constraints may require that participation be 
limited in one or more of the topic areas, and it is likely that not 
all requests to participate can be accommodated. Identification of the 
desired topic areas in order of preference will help the Study Group to 
ensure that participants will be heard in the area(s) of interest most 
critical to them. The Study Group will notify each participant in 
advance of his or her designated topic area(s).
    Note also for those who wish to attend but not participate in the 
roundtables that space is limited. Seats will be available on a first-
come, first-served basis. All discussions will be transcribed, and 
transcripts subsequently made available on the Section 108 Study Group 
Web site (https://www.loc.gov/section108).
    Written Comments. Written comments must include the following 
information: (1) the name of the person making the submission; (2) the 
organization(s) represented by that person, if any; (3) contact 
information (address, telephone, telefax, and e-mail); and (4) a 
statement of no more than 10 pages, responding to any of the topic 
areas or specific questions in this notice.
    Submission of Both Requests to Participate in Roundtable 
Discussions and Written Comments. In the case of submitting a request 
to participate in the roundtable discussions or of submitting written 
comments, submission should be made to the Section 108 Study Group by 
e-mail (preferred) or by hand delivery by a commercial courier or by a 
private party to the address listed above. Submission by overnight 
delivery service or regular mail will not be effective due to delays in 
processing receipt.
    If by e-mail (preferred): Send to the e-mail address 
section108@loc.gov a message containing the information required above 
for the request to participate or the written submission, as 
applicable. The summary of issues (for the request to participate in 
the roundtable discussion) or statement (for the written comments), as 
applicable, may be included in the text of the message, or may be sent 
as an attachment. If sent as an attachment, the summary of issues or 
written statement must be in a single file in either: (1) Adobe 
Portable Document File (PDF) format, (2) Microsoft Word version 2000 or 
earlier, (3) WordPerfect version 9.0 or earlier, (4) Rich Text File 
(RTF) format, or (5) ASCII text file format.
    If by hand delivery by a private party or a commercial, non-
government courier or messenger: Deliver to the address listed above a 
cover letter with the information required, and include two copies of 
the summary of issues or written statement, as applicable, each on a 
write-protected 3.5-inch diskette or CD-ROM, labeled with the legal 
name of the person making the submission and, if applicable, his or her 
title and organization. The document itself must be in a single file in 
either (1) Adobe Portable Document File (PDF) format, (2) Microsoft 
Word Version 2000 or earlier, (3) WordPerfect Version 9 or earlier, (4) 
Rich Text File (RTF) format, or (5) ASCII text file format.
    Anyone who is unable to submit a comment or request to participate 
in electronic form (either through e-mail or hand delivery of a 
diskette or CD-ROM) should submit, with a cover letter containing the 
information required above, an original and three paper copies of the 
summary of issues (for the request to participate in the roundtable 
discussions) or statement (for the written comments) by hand to the 
appropriate address listed above.

    Dated: November 28, 2006
Marybeth Peters,
Register of Copyrights.
[FR Doc. E6-20480 Filed 12-1-06; 8:45 am]
BILLING CODE 1410-21-F