Section 108: Draft Revision of the Library and Archives Exceptions in U.S. Copyright Law, 36594-36599 [2016-13426]
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[FR Doc. 2016–13306 Filed 6–6–16; 8:45 am]
BILLING CODE 4510–CP–P
LIBRARY OF CONGRESS
Copyright Office
[Docket No. 2016–4]
Section 108: Draft Revision of the
Library and Archives Exceptions in
U.S. Copyright Law
U.S. Copyright Office, Library
of Congress.
ACTION: Notice of inquiry.
AGENCY:
The United States Copyright
Office is inviting interested parties to
discuss potential revisions relating to
the library and archives exceptions in
the Copyright Act, 17 U.S.C. 108, in
furtherance of the Copyright Office’s
policy work in this area over the past
ten years and as part of the current
copyright review process in Congress.
The Copyright Office has led and
participated in major discussions on
potential changes to section 108 since
2005, with the goal of updating the
provisions to better reflect the facts,
practices, and principles of the digital
age and to provide greater clarity for
libraries, archives, and museums. To
finalize its legislative recommendation,
the Copyright Office seeks further input
from the public on several remaining
issues, including, especially, provisions
concerning copies for users, security
measures, public access, and third-party
outsourcing. The Copyright Office
therefore invites interested parties to
schedule meetings in Washington, DC to
take place during late June through July
2016, using the meeting request form
referenced below.
DATES: Written meeting requests must
be received no later than 11:59 p.m.
Eastern Time on July 7, 2016.
ADDRESSES: Please fill out the meeting
request form found at
www.copyright.gov/policy/section108,
being sure to indicate which topics you
would like to discuss. Meetings will be
held at the U.S. Copyright Office, 101
Independence Ave. SE. (Madison
Building, Library of Congress),
SUMMARY:
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Washington, DC 20540, or as necessary,
by phone.
FOR FURTHER INFORMATION CONTACT:
Chris Weston, Attorney-Advisor, Office
of the General Counsel, cwes@loc.gov,
202–707–8380; Emily Lanza, Counsel,
Office of Policy and International
Affairs, emla@loc.gov, 202–707–1027; or
Aurelia J. Schultz, Counsel, Office of
Policy and International Affairs, aschu@
loc.gov, 202–707–1027.
SUPPLEMENTARY INFORMATION:
I. Background
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Congress enacted section 108 of title
17 in 1976, authorizing libraries and
archives to reproduce and distribute
certain copyrighted works on a limited
basis for the purposes of preservation,
replacement, and research, placing these
excepted activities outside the scope of
exclusive rights set forth in section
106.1 Before 1976, these institutions
relied on a combination of common law
and professional practices to help
determine the scope of permissible
activities under the law, including nonbinding agreements between libraries
and publishers.2 As libraries and
archives increasingly employed
photocopying in the 1950s and 1960s,3
however, Congress began to explore the
need for clearer guidance for all
involved. In 1966, the House Judiciary
Committee noted that past efforts to
come to a reasonable arrangement on
library photocopying had failed and
urged ‘‘all concerned to resume their
efforts to reach an accommodation
under which the needs of scholarship
and the rights of authors would both be
respected.’’ 4 Several years later, the
Senate Judiciary Committee also noted
photocopying’s role in the ‘‘evolution in
the functioning and services of
libraries’’ and the need for Congress to
1 See H.R. Rep. No. 94–1476, at 74–79 (1976), as
reprinted in 1976 U.S.C.C.A.N. 5659, 5688–92.
2 See Register of Copyrights, Library
Reproduction of Copyrighted Works (17 U.S.C. 108)
14 (1983) (discussion of the ‘‘Gentlemen’s
Agreement’’ of 1935, a voluntary agreement
negotiated between publishers and libraries that set
a standard of acceptable conduct for reproduction
of copyrighted materials by libraries).
3 A 1959 copyright study prepared at the request
of Congress noted that the ‘‘various methods of
photocopying have become indispensable to
persons engaged in research and scholarship, and
to libraries that provide research material in their
collections to such persons.’’ Borge Varmer, U.S.
Copyright Office at the Library of Congress, Study
No. 15: Photoduplication of Copyright Material by
Libraries, at 49 (1959), reprinted in Staff of S.
Comm. on the Judiciary, 86th Cong., Copyright Law
Revision: Studies Prepared for the Subcomm. on
Patents, Trademarks, and Copyrights of the Comm.
on the Judiciary, United States Senate: Studies 14–
16 (Comm. Print 1960).
4 H.R. Rep. No. 89–2237, at 65 (1966).
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respond to these changes in technology
with a statutory exception.5
Crafting an appropriate statutory
exception for libraries and archives was
part of a larger revision process
undertaken and enacted by Congress as
part of the 1976 Copyright Act. A key
characteristic of section 108 is that it
provides specific exceptions pertaining
to frequent library and archives
activities, such as preservation copying
and making and distributing copies for
users, but does not preclude these
institutions from relying upon the more
general fair use exception of section 107
as well. In fact, Congress enacted an
express savings clause for fair use,
thereby ensuring that courts could look
to both provisions.6
As demonstrated by its focus on
photocopying, section 108 was designed
to address the prevalent use of printbased analog technology occurring at
the time of enactment. Despite some
minor adjustments in the Digital
Millennium Copyright Act of 1998,7
which partially took account of digital
reproduction capabilities, the
exceptions in section 108 therefore are
stuck in time. They did not anticipate
and no longer address the ways in
which copyrighted works are created,
distributed, preserved, and accessed in
the twenty-first century.8 Additionally,
over time the structure and wording of
section 108 have proven to be difficult
to implement for both lawyer and
layperson. Ultimately, section 108
‘‘embodies some now-outmoded
assumptions about technology,
behavior, professional practices, and
business models’’ 9 that require revision
and updating.
The key aspects of section 108 and the
policy work conducted to date are
summarized below.
A. Overview of Section 108
Section 108 applies only to libraries
and archives (terms that are not defined)
that are either open to the general public
or to unaffiliated researchers in the
relevant specialized field.10 Activities
5 S.
Rep. No. 93–983, at 123 (1974).
U.S.C. 108(f)(4) (‘‘Nothing in this section . . .
in any way affects the right of fair use as provided
by section 107 . . .’’).
7 Digital Millennium Copyright Act, Public Law
105–304, 404, 112 Stat. 2860, 2889 (1998)
(expanding the number of copies and phonorecords
permitted for purposes of preservation and security,
for deposit for research use in another library or
archives, and for replacement, from one to three;
and restricting digital copies and phonorecords to
the premises of the library or archives).
8 Section 108 Study Group, The Section 108
Study Group Report i (2008), www.section108.gov/
docs/Sec108StudyGroupReport.pdf (‘‘Study Group
Report’’).
9 Id.
10 17 U.S.C. 108(a)(2).
6 17
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covered by the section cannot be
undertaken for ‘‘any purpose of direct or
indirect commercial advantage,’’ 11 and
copies must contain the copyright
notice as it appears on the source copy,
or if there is no such notice, bear a
legend stating that the work may be
protected by copyright.12
Section 108 includes two provisions
for libraries and archives to make
reproductions in order to maintain the
works in their collections; these
provisions apply to all categories of
copyrighted works. The first such
provision allows a library or archives to
reproduce three copies of an
unpublished work in its collections for
purposes of preservation, security, or
deposit for research in another eligible
institution.13 Digital copies made under
this provision cannot be made available
to the public outside the premises of the
library or archives.14 The second
maintenance exception allows the
reproduction of three copies of a
published work for replacement
purposes, but only if the source copy of
the work is ‘‘damaged, deteriorating,
lost, or stolen’’ or the copy is stored in
an obsolete format, and the library or
archives cannot locate an unused copy
of the work at a fair price after a
reasonable effort to do so.15 The
replacement exception contains the
same restriction prohibiting distribution
of digital copies outside the premises of
the library or archives.16
Section 108 also contains a set of
provisions concerning the reproduction
and distribution of materials in an
eligible institution’s collections for
users, either upon direct request or as
part of interlibrary loan. These
exceptions do not apply to musical
works; pictorial, graphic, or sculptural
works (other than illustrations or similar
adjuncts to literary works); and most
audiovisual works, including motion
pictures.17 Libraries and archives may
reproduce and distribute for a user one
copy of an article or contribution to a
collection, or a small part of a larger
work.18 They may also reproduce and
distribute entire or substantial portions
of works for users, but only if a
reasonable investigation shows that a
copy is not otherwise obtainable at a fair
price.19 Additionally, section 108 states
that, in making and distributing copies
for users, a library or archives may not
11 Id.
at 108(a)(1).
at 108(a)(3).
13 Id. at 108(b).
14 Id. at 108(b)(2).
15 Id. at 108(c).
16 Id. at 108(c)(2).
17 Id. at 108(i).
18 Id. at 108(d).
19 Id. at 108(e).
12 Id.
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engage in ‘‘related or concerted
reproduction or distribution of multiple
copies’’ of the same material,20 and that,
when making interlibrary loan copies,
an institution cannot ‘‘do so in such
aggregate quantities as to substitute for
a subscription to or purchase of such a
work.’’ 21
In addition to its provisions governing
internal maintenance copies and
reproduction and distribution of copies
for users, section 108 also provides
libraries and archives with a safe harbor
from liability for the unsupervised use
of its on-premises reproducing
equipment, provided that they post
notices stating that making copies may
be subject to copyright law.22 Another
provision gives libraries and archives
the ability to reproduce, distribute,
display, or perform any work in its last
20 years of copyright protection for
preservation, scholarship, or research,
provided the work is not being
commercially exploited by its owner.23
Finally, subsection (f)(4) of section
108 contains two provisions that govern
the exceptions’ overall applicability. It
first states that nothing in section 108
‘‘in any way affects the right of fair use
as provided by section 107.’’ 24
Subsection (f)(4) also provides that any
contractual obligation assumed by a
library or archives upon obtaining a
work for its collections supersedes the
institution’s privileges under section
108.25
B. Revision Work to Date
As Congress has reviewed the
copyright law in recent years, the
Copyright Office has noted consistently
that exceptions and limitations are
critical to the digital economy and must
be calibrated by Congress as carefully
and deliberatively as provisions
governing exclusive rights or
enforcement. Section 108, in particular,
has been a long-standing focus of the
Copyright Office because, properly
updated, it can provide professionals in
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20 Id.
at 108(g)(1).
21 Id. at 108(g)(2). Initial guidance as to the
practical limits indicated by this phrase was
provided by the National Commission on New
Technological Uses of Copyrighted Works
(CONTU), which in 1976 formulated guidelines for
how many copies of a particular article or
periodical could be made for interlibrary loan
purposes without risking market substitution. H.R.
Rep. No. 94–1733, at 72–73 (1976) (Conf. Rep.), as
reprinted in 1976 U.S.C.C.A.N. 5809, 5813–14.
Congress, while incorporating the CONTU
guidelines into the Conference Committee Report to
the Copyright Act of 1976, cautioned that they
would require ‘‘continuous reevaluation and
adjustment.’’ Id. at 71.
22 17 U.S.C. 108(f)(1).
23 Id. at 108(h).
24 Id. at 108(f)(4).
25 Id.
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libraries, archives, and museums with
greater legal certainty regarding the
permissibility of certain core activities.
In 2005, the Copyright Office and the
National Digital Information
Infrastructure and Preservation Program
of the Library of Congress sponsored
and administered an independent study
group charged with producing a report
and set of recommendations on
potential improvements to section 108.
The study group members included
distinguished and experienced
librarians, copyright owners, archivists,
academics, and other memory
institution specialists and copyright
lawyers.26 The ‘‘Section 108 Study
Group’’ 27 made note of a number of
ways in which digital technologies have
impacted copyright law, including ‘‘(1)
opportunities for new revenue sources
derived from new distribution methods,
(2) increased risks of lost revenue and
control from unauthorized copying and
distribution, (3) essential changes in the
operations of libraries and archives,
[and] (4) changing expectations of users
and the uses made possible by new
technologies.’’ 28 Over the course of
nearly three years, the Study Group
engaged in analysis, review, and
discussion of the best ways in which to
update section 108 to address the digital
age.
The Study Group issued its report in
March 2008, calling for an extensive
revision to update section 108.29 The
report also pointed out several areas
where section 108 required amendment
but where the members of the Study
Group could not agree on a solution.30
The Study Group unanimously
recommended revising section 108 in
nine separate areas, plus a general
recommendation for re-organizing the
section’s provisions. Among the more
significant recommendations were to:
• Allow museums to be eligible along
with libraries and archives.31
• Add new eligibility criteria, such as
having a public service mission,
employing a professional staff, and
providing professional services.32
• Allow libraries and archives to
outsource some of the activities
permitted by section 108 to third
parties, under certain conditions.33
• Replace the three-copy limits in the
preservation, security, deposit for
26 See Members of the Section 108 Study Group,
https://www.section108.gov/members.html (last
visited May 25, 2016).
27 Referred to as the Study Group in this notice.
28 Study Group Report at 28.
29 Id. at iii.
30 Id. at 95–112.
31 Id. at 31–33.
32 Id. at 34–38.
33 Id. at 39–42.
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research, and replacement provisions
with conceptual limits allowing a
limited number of copies as reasonably
necessary for the given purpose.34
• Revise the prohibition on making
digital preservation and replacement
copies publicly available off-premises,
so that it does not apply when the
source and the new copy are in physical
formats, such as CDs or DVDs.35
• Allow specially qualified
institutions to preemptively reproduce
publicly disseminated works at special
risk of loss for preservation purposes
only, with limited access to the
copies.36
• Create a new provision for the
capture, reproduction, and limited redistribution of ‘‘publicly available
online content,’’ e.g., Web sites and
other works freely available on the
internet.37 Rights-holders would be
allowed to opt out of having their
content captured or re-distributed.38
• Apply the safe harbor from liability
for copies made on unsupervised
reproduction equipment to user-owned,
portable equipment, as well as
equipment residing on the library’s or
archives’ premises.39
The Study Group also made note of
several areas of section 108 that all
members agreed required revision, but
could not come to a unanimous decision
on what the revision should look like.40
The issues identified by the Study
Group in this section of the Report
concerned copies made at the request of
users, specifically:
• The need to replace the single-copy
limit with a ‘‘flexible standard more
appropriate to the nature of digital
materials.’’ 41
• Explicitly permitting electronic
delivery of copies for users under
certain conditions.42
• Allowing copies for users to be
made of musical works; pictorial,
graphic, or sculptural works; and
motion pictures and other audiovisual
34 Id.
at 52–54, 61–65.
at 52, 57, 61, 66.
36 Id. at 69–79. The Report also recommended
replacing the published/unpublished distinction
with the more practical publicly disseminated/not
publicly disseminated binary, wherein works made
available to the public, but not via distribution of
material copies (as is required for publication),
would fall into the publicly disseminated category.
See id. at 47–51.
37 Id. at 80–87.
38 Id. at 85–87.
39 Id. at 91–92.
40 Id. at 95–112. Additionally, a third section of
the Report discussed issues that some, but not all,
of the Study Group members thought merited
statutory revision, including whether to allow
certain exceptions to override contrary contractual
agreements. Id. at 113–124.
41 Id. at 98–101.
42 Id. at 98, 101–103.
35 Id.
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works, under conditions that limit the
risk of market substitution.43
Following the issuance of the Study
Group’s report, the Copyright Office, led
by the then-Register of Copyrights,
comprehensively reviewed the
underlying analyses of the Study Group
and examined a number of questions
left unresolved due to lack of consensus
amongst disparate Study Group
members. On April 5, 2012, the current
Register and senior staff met with Study
Group members to review the 2008
report and discuss subsequent
developments. Most Study Group
members agreed that updating section
108 remained a worthwhile goal, and
some suggested that the Report did not
go far enough, particularly in
recommending changes to the
provisions regarding copies for users.
Additionally, several members
described an increasing practice of
librarians and archivists more
frequently relying upon fair use as the
legal basis for their activities, making
section 108 more urgent or less urgent
as a revision matter, depending on one’s
perspective.
In February 2013, the Copyright
Office co-sponsored with Columbia Law
School a public conference on section
108, entitled ‘‘Copyright Exceptions for
Libraries in the Digital Age: Section 108
Reform.’’ The all-day conference served
as a valuable and comprehensive
adjunct to the Study Group Report.
Among other issues, it addressed such
topics as the current landscape of
similar exceptions in the United States
and internationally, the
recommendations of the Study Group,
what changes should be made to section
108 in terms of its scope, and whether
and how mass digitization by libraries
and archives should be permitted.44
More recently, section 108, along with
the issues of orphan works and mass
digitization, was the subject of a hearing
on ‘‘Preservation and Reuse of
Copyrighted Works’’ held by the House
Subcommittee on Courts, Intellectual
Property, and the Internet on April 2,
2014.45 At the hearing, there was
disagreement among the six witnesses
43 Id.
at 106–112.
Symposium Issue: Section 108 Reform, 36
Colum. J.L. & Arts 527 (2013); the program and
videos of the program are available at Section 108
Reform, Kernochan Ctr. for Law, Media, and the
Arts, https://web.law.columbia.edu/kernochan/
symposia/section-108-reform (last visited May 10,
2016).
45 Preservation and Reuse of Copyrighted Works:
Hearing Before the Subcomm. on Courts,
Intellectual Prop., & the Internet of the H. Comm.
on the Judiciary, 113th Cong. (2014); the official
transcript of the hearing is available at https://
judiciary.house.gov/wp-content/uploads/2016/02/
113-88-87423.pdf.
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44 See
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over whether or not section 108 reform
is advisable as a legal matter or possible
as a practical matter. One librarianmember of the Section 108 Study Group
told Congress that the existing
framework does not require
amendment 46 and anticipated great
difficulty in translating the Study
Group’s (limited) recommendations into
effective legislation.47 However, the cochair of the Section 108 Study Group,
the former general counsel to a book
publisher, advocated for revisions,
emphasizing the clarity that a
‘‘workable, up-to-date and balanced’’
section 108 could bring to both libraries
and copyright owners ‘‘in specific
situations.’’ 48 Another witness, an
audiovisual conservation expert at the
Library of Congress, testified that it is
important to ‘‘[m]odernize Sec[tion] 108
so that the Library of Congress can
fulfill its mission to preserve
audiovisual and other materials,’’ 49 and
recommended specific changes to the
preservation, replacement, copies for
users, and other provisions.50
Most recently, in her April 29, 2015,
testimony to the House Judiciary
Committee regarding the universe of
copyright policy issues, the Register of
Copyrights stated that section 108 is
among the matters ready for
Congressional consideration.51 ‘‘Based
on the entirety of the record to date,’’
the Register explained,
the Office has concluded that Section 108
must be completely overhauled. One
enduring complaint is that it is difficult to
understand and needlessly convoluted in its
46 Id. at 32 (testimony of James G. Neal, Vice
President for Information Services and University
Librarian, Columbia University) (‘‘[T]he existing
statutory framework, which combines the specific
library exceptions in section 108 with the flexible
fair use right, works well for libraries and does not
require amendment.’’).
47 Id. at 42 (statement of James G. Neal, Vice
President for Information Services and University
Librarian, Columbia University) (noting, for
example the difficulty of resolving issues as simple
as ‘‘. . . how museums should be defined, and the
need to define libraries and archives, currently
undefined in Section 108.’’).
48 Id. at 30 (statement of Richard S. Rudick, CoChair, Section 108 Study Group).
49 Id. at 11 (statement of Gregory Lukow, Chief,
Packard Campus for Audio Visual Conservation,
Library of Congress).
50 Id. at 15–18 (for example, ‘‘[r]evise subsections
108(b) and (c), which govern the reproduction of
unpublished and published works, to allow for the
use of current technology and best practices in the
preservation of film, video, and sound recordings’’).
51 Register’s Perspective on Copyright Review:
Hearing Before the H. Comm. on the Judiciary,
114th Cong. 5 (2015) (testimony of Maria A.
Pallante, Register of Copyrights and Director, U.S.
Copyright Office) (‘‘[L]ibrary exceptions or the
exceptions for persons who are blind or visually
impaired . . . are outdated to the point of being
obsolete . . . [; these outdated exceptions] do not
serve the public interest, and it is our view that it
is untenable to leave them in their current state.’’).
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organization. The Office agrees that the
provisions should be comprehensive and
should be related logically to one another,
and we are currently preparing a discussion
draft. This draft will also introduce several
substantive changes, in part based upon the
recommendations of the Study Group’s 2008
report. It will address museums, preservation
exceptions and the importance of ‘‘web
harvesting’’ activities.52
C. The International Perspective
Many other countries have recognized
the global significance of copying and
preservation exceptions for libraries and
archives and are also reviewing their
relevant exceptions at this time. As of
June 2015, 156 World Intellectual
Property Organization (WIPO) member
states had at least one statutory library
exception, addressing issues such as
making copies of works for readers,
researchers, and other library users as
well as copies for preservation.53 The
most recent WIPO study on copyright
limitations and exceptions for libraries
and archives observed that ‘‘exceptions
for libraries and archives are
fundamental to the structure of
copyright law throughout the world,
and that the exceptions play an
important role in facilitating library
services and serving the social objective
of copyright law.’’ 54
Some countries have also recently
considered updating and amending
their statutory library exceptions to
address the digital landscape. For
example, Canada in 2012 amended its
copyright statute to permit libraries,
archives, and museums to provide
digital copies of certain works to
persons requesting the copies through
another institution.55 Similarly, the
European Union has stated that in 2016
it would examine legislative proposals
that would allow cultural heritage
institutions to use digital technologies
for preservation.56
For many years, WIPO has considered
a treaty proposal on copyright
limitations and exceptions for libraries
and archives that would mandate a right
of preservation for library and archival
materials, enabling these institutions to
reproduce for preservation purposes as
52 Id. at 20–21 (statement of Maria A. Pallante,
Register of Copyrights and Director, U.S. Copyright
Office) (citations omitted).
53 Kenneth D. Crews, WIPO Study on Copyright
Limitations and Exceptions for Libraries and
Archives, WIPO Doc. SCCR/30/3, at 6 (June 10,
2015).
54 Id.
55 Copyright Act, R.S.C. 1985, c C–42, ss. 5.02,
30.2 (Can.).
56 European Commission Press Release MEMO/
15/6262, Making EU copyright rules fit for the
digital age — Questions & Answers (Dec. 9, 2015),
https://europa.eu/rapid/press-release_MEMO-156262_en.htm.
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Federal Register / Vol. 81, No. 109 / Tuesday, June 7, 2016 / Notices
many copies of works that are needed in
accordance with best professional
practices.57 Advocating a more ‘‘soft
law’’ approach, the United States
government instead has encouraged
member states to adopt national
statutory library exceptions that are
consistent with their current
international obligations 58 and that
further the broad objectives of
preservation and public service.59
asabaliauskas on DSK3SPTVN1PROD with NOTICES
II. Revision of Section 108—Current
Discussion Draft Proposals
The Copyright Office notes that, since
the enactment of the Copyright Act of
1976, the views of the library and
archives community regarding section
108 have become less uniform and more
complicated, particularly as courts have
supported newer applications of the fair
`
use doctrine vis-a-vis a number of
digitization and access activities.
Indeed, fair use clearly supports a wider
range of reproduction activities than it
did when section 108 was first
codified.60 The ever-evolving nature of
the law is instructive and important.
Among other things, it underscores the
advisability of allowing section 108 and
section 107 to co-exist, while ensuring
that each provision is positioned for the
future, free from the analog restrictions
of a bygone era.
As noted by the Study Group,
updating section 108 would provide
57 See The Case for a Treaty on Exceptions and
Limitations for Libraries and Archives: Background
Paper by IFLA, ICA, EIFL and INNOVARTE, WIPO
Doc. SCCR/23/3 (Nov. 15, 2011).
58 Article 9(2) of the Berne Convention for the
Protection of Literary and Artistic Works provides
that signatory counties may permit the reproduction
of works ‘‘in certain special cases, provided that
such reproduction does not conflict with a normal
exploitation of the work and does not unreasonably
prejudice the legitimate interests of the author.’’
Berne Convention for the Protection of Literary and
Artistic Works, Sept. 9, 1886, as last revised July 24,
1971, 25 U.S.T. 1341, 828 U.N.T.S. 221. The WIPO
Copyright Treaty and the WIPO Performances and
Phonograms Treaty apply the same standard
outlined in Article 9(2) of the Berne Convention for
all rights granted under those treaties. WIPO
Copyright Treaty art. 10(2), Dec. 20, 1996, S. Treaty
Doc. No. 105–17, 36 I.L.M. 65 (1997); WIPO
Performances and Phonograms Treaty art. 16(2),
Dec. 20, 1996, S. Treaty Doc. No. 105–17, 36 I.L.M.
76 (1997).
59 Objectives and Principles for Exceptions and
Limitations for Libraries and Archives, WIPO Doc.
SCCR/26/8 (Jan. 10, 2014).
60 See, e.g., Authors Guild v. Google, Inc., 804
F.3d 202 (2d Cir. 2015), cert. denied, 136 S.Ct. 1658
(mem.) (2016); Authors Guild, Inc. v. HathiTrust,
755 F.3d 87 (2d Cir. 2014); see also Library
Copyright Alliance, Before the House Committee on
the Judiciary: Recommendations of the Library
Copyright Alliance on Copyright Reform 4 (May 8,
2015), https://www.librarycopyrightalliance.org/
storage/documents/lca-copyright-reformamendments.pdf (‘‘[A]s the recent decision in
Authors Guild v. HathiTrust . . . makes clear, fair
use supplements Section 108 and thus provides a
sufficient mechanism for updating it when
necessary.’’).
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libraries and archives with a clear and
unequivocal basis for their digital
preservation, distribution, and other
activities, notwithstanding that some of
these activities may also be permissible
under fair use.61 Congress specifically
drafted section 108 to include a fair use
savings clause in acknowledgement of
the importance of fair use, noting in the
1976 Act’s legislative history that ‘‘[n]o
provision of section 108 is intended to
take away any rights existing under the
fair use doctrine.’’ 62 Indeed, almost
forty years later, the Chair of the House
Judiciary Committee has recognized that
a specific, and separate, library
exception is still an important
supplement to fair use because ‘‘fair use
is not always easy to determine, even to
those with large legal budgets[, and
t]hose with smaller legal budgets or a
simple desire to focus their limited
resources on preservation may prefer to
have better statutory guidance than
exists today.’’ 63 In fact, there is no
reasonable question that the fair use
doctrine should or will continue to be
available to libraries and archives as an
essential provision and planning tool, or
that section 108 has proved valuable
and should continue to set forth a list
of excepted activities for the benefit of
library professionals. If there is a
lingering debate, it is more accurately
about whether these excepted activities
should be updated for the digital age or
left in their increasingly irrelevant state,
a question that is less about the
importance of providing clear guidance
to library, archives, and museum
professionals and more about how
sections 108 and 107 will operate
together in the future.64
61 See Study Group Report at 21–22; see also 17
U.S.C. 108(f)(4); HathiTrust, 755 F.3d at 94 n.4
(‘‘[W]e do not construe § 108 as foreclosing our
analysis of the libraries’ activities under fair use.’’).
62 H.R. Rep. No. 94–1476, at 74 (1976), as
reprinted in 1976 U.S.C.C.A.N. 5659, 5687–88; see
also S. Rep. No. 91–1219, at 6 (1970) (‘‘The rights
given to the libraries and archives by this provision
of the bill are in addition to those granted under
the fair-use doctrine.’’). Further, the court in
HathiTrust expressly rejected plaintiffs’ argument
that fair use did not apply to the activities at issue
in the case because section 108 alone governs
reproduction of copyrighted works by libraries and
archives, finding that because ‘‘section 108 also
includes a ‘savings clause’ . . . . we do not construe
§ 108 as foreclosing our analysis of the Libraries’
activities under fair use . . .’’ HathiTrust, 755 F.3d
at 94 n.4.
63 Preservation and Reuse of Copyrighted Works:
Hearing Before the Subcomm. on Courts,
Intellectual Prop., & the Internet of the H. Comm.
on the Judiciary, 113th Cong. 6 (2014) (statement of
Rep. Bob Goodlatte, Chairman, H. Comm. on the
Judiciary).
64 See, e.g., id. at 26 (testimony of Richard S.
Rudick, Co-Chair, Section 108 Study Group) (noting
that ‘‘reliance on section 107 for purposes that go
far beyond those originally conceived or imagined
invites, as we have seen, expensive litigation with
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As a matter of public policy, the
Copyright Office agrees with the House
Chairman and the Study Group and
observes further that maintaining
provisions drafted in, and applicable
primarily to, the analog era is
antithetical to the purpose of a wellfunctioning copyright law. More
specifically, the Copyright Office agrees
in principle with and plans to
incorporate many of the Study Group’s
recommendations, including:
• Adding museums as eligible
institutions.
• Expanding the preservation,
security, and deposit for research
exceptions to include published/
publicly disseminated works.
• Creating a new exception to permit
the reproduction and distribution of
publicly available internet content for
preservation and research purposes,
with an opt-out provision.
• Allowing the outsourcing of certain
section 108 activities to third-party
contractors.
• Removing or revising the three-copy
limitation for preservation and security,
deposit for research, and replacement
copies.
Finally, as noted above, it is widely
known that section 108 suffers from
fundamental problems with
organization and clarity, hampering the
practical ability of librarians and
archivists to utilize the exceptions. In
fact, while the Study Group suggested
reorganizing section 108 rather than redrafting it,65 the Copyright Office
believes that redrafting is the better
approach.
III. Subjects of Public Inquiry
The Copyright Office invites
interested parties to schedule a time to
provide in-person input on the specific
subjects below. Note that while the
Copyright Office will provide a
comprehensive recommendation to
Congress, we are only revisiting a select
number of discrete issues at this time.
A party choosing to respond to this
notice of inquiry need not plan to
address every subject listed, but the
Copyright Office requests that each
responding party clearly identify each
subject that it plans to discuss.
uncertain results.’’); see also The Scope of Fair Use:
Hearing Before the Subcomm. on Courts,
Intellectual Prop., & the Internet of the H. Comm.
on the Judiciary, 113th Cong. 7 (2014) (testimony
of Peter Jaszi, Professor, Faculty Director, GlushkoSamuelson Intellectual Property Clinic, Washington
College of Law, American University) (noting that
specific exceptions like those found in section 108
can be highly valuable to particular groups of users
even in static form because, ‘‘even though never
comprehensive and often not up to date,’’ they are
supplemented by fair use).
65 Study Group Report at 93–94.
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Federal Register / Vol. 81, No. 109 / Tuesday, June 7, 2016 / Notices
Eligibility
1. The attributes that an institution
should possess in order to be eligible for
the section 108 exceptions, and how to
prescribe and/or regulate them.
Rights Affected
2. Limiting section 108 to
reproduction and distribution activities,
or extending it to permit public
performance and display as well.
Copies for Preservation, Security,
Deposit in Another Institution, and
Replacement
3. Restricting the number of
preservation and security copies of a
given work, either with a specific
numerical limit, as with the current
three-copy rule, or with a conceptual
limit, such as the amount reasonably
necessary for each permitted purpose.
4. The level of public access that a
receiving institution can provide with
respect to copies of both publicly
disseminated and non-publicly
disseminated works deposited with it
for research purposes.
Copies for Users
5. Conditioning the unambiguous
allowance of direct digital distribution
of copies of portions of a work or entire
works to requesting users, and whether
any such conditions should be statutory
or arrived at through a rulemaking
process.
Preservation of Internet Content
6. Conditioning the distribution and
making available of publicly available
internet content captured and
reproduced by an eligible institution.
Relation to Contractual Obligations
7. How privileging some of the section
108 exceptions over conflicting
contractual terms would affect business
relationships between rights-holders
and libraries, archives, and museums.
Outsourcing
8. What activities (e.g., digitization,
preservation, interlibrary loan) to allow
to be outsourced to third-party
contractors, and the conditioning of this
outsourcing.
asabaliauskas on DSK3SPTVN1PROD with NOTICES
Other
9. Whether the conditions to any of
the section 108 exceptions would be
better as regulations that are the product
of notice-and-comment rulemaking or as
statutory text.
10. Whether and how the use of
technical protection measures by
eligible institutions should apply to
section 108 activities.
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11. Any pertinent issues not
referenced above that the Copyright
Office should consider in relation to
revising section 108.
Dated: June 2, 2016.
Karyn A. Temple Claggett,
Associate Register of Copyrights and Director
of Policy and International Affairs, U.S.
Copyright Office.
[FR Doc. 2016–13426 Filed 6–6–16; 8:45 am]
BILLING CODE 1410–30–P
NATIONAL AERONAUTUICS AND
SPACE ADMINISTRATION
[Notice (16–039)]
Notice of Intent To Grant an Exclusive
License
National Aeronautics and
Space Administration.
ACTION: Notice of intent to grant
exclusive license.
AGENCY:
This notice is issued in
accordance with 35 U.S.C. 209(e) and 37
CFR 404.7(a)(l)(i). NASA hereby gives
notice of its intent to grant an exclusive
license in the United States to practice
the invention described and claimed in
U.S. Non-Provisional Patent
Application, Serial No. 13/573920,
titled ‘‘System and Method for Air
Launch from a Towed Aircraft,’’ NASA
Case No. DRC–012–011, and Provisional
Patent Application, Serial No. 15/
046789, titled ‘‘System and Method for
Air Launch from a Towed Aircraft’’
NASA Case No. DRC–012–011B and any
issued patents or continuations in part
resulting therefrom, to Kelly Space &
Technology Inc., having its principal
place of business in San Bernardino,
California. Certain patent rights in this
invention have been assigned to the
United States of America as represented
by the Administrator of the National
Aeronautics and Space Administration.
The prospective exclusive license will
comply with the terms and conditions
of 35 U.S.C. 209 and 37 CFR 404.7.
DATES: The prospective exclusive
license may be granted unless, within
fifteen (15) days from the date of this
published notice, NASA receives
written objections including evidence
and argument that establish that the
grant of the license would not be
consistent with the requirements of 35
U.S.C. 209 and 37 CFR 404.7.
Competing applications completed and
received by NASA within fifteen (15)
days of the date of this published notice
will also be treated as objections to the
grant of the contemplated exclusive
license.
SUMMARY:
PO 00000
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36599
Objections submitted in response to
this notice will not be made available to
the public for inspection and, to the
extent permitted by law, will not be
released under the Freedom of
Information Act, 5 U.S.C. 552.
ADDRESSES: Objections relating to the
prospective license may be submitted to
Patent Counsel, NASA Management
Office, Jet Propulsion Laboratory, 4800
Oak Grove Drive, M/S 180–800C,
Pasadena, CA 91109, (818) 854–7770
(phone), 818–393–2607 (fax).
FOR FURTHER INFORMATION CONTACT:
Mark Homer, Patent Counsel, NASA
Management Office, Jet Propulsion
Laboratory, 4800 Oak Grove Drive, M/S
180–800C, Pasadena, CA 91109, (818)
854–7770 (phone), 818–393–2607 (fax).
Information about other NASA
inventions available for licensing can be
found online at https://
technology.nasa.gov.
Mark P. Dvorscak,
Agency Counsel for Intellectual Property.
[FR Doc. 2016–13429 Filed 6–6–16; 8:45 am]
BILLING CODE 7510–13–P
NATIONAL ARCHIVES AND RECORDS
ADMINISTRATION
Office of Government Information
Services (OGIS)
[NARA 2016–034]
Freedom of Information Act Advisory
Committee
National Archives and Records
Administration.
ACTION: Charter Renewal of the Freedom
of Information Act Advisory Committee.
SUMMARY: The National Archives and
Records Administration (NARA) is
renewing the charter for the Freedom of
Information Act (FOIA) Advisory
Committee, a Federal advisory
committee we established to study the
current FOIA landscape across the
executive branch and to advise NARA’s
Office of Government Information
Services, the Government’s FOIA
ombudsman, on improvements to the
FOIA.
AGENCY:
We filed the renewed charter on
May 20, 2016. It remains in effect for
two years from that date, unless
otherwise extended.
ADDRESSES: You may access the charter
and other information about the FOIA
Advisory Committee online at https://
www.ogis.archives.gov/foia-advisorycommittee.htm.
FOR FURTHER INFORMATION CONTACT: Kate
Gastner by phone at 202–741–5770, by
DATES:
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]]>Agencies
[Federal Register Volume 81, Number 109 (Tuesday, June 7, 2016)]
[Notices]
[Pages 36594-36599]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-13426]
=======================================================================
-----------------------------------------------------------------------
LIBRARY OF CONGRESS
Copyright Office
[Docket No. 2016-4]
Section 108: Draft Revision of the Library and Archives
Exceptions in U.S. Copyright Law
AGENCY: U.S. Copyright Office, Library of Congress.
ACTION: Notice of inquiry.
-----------------------------------------------------------------------
SUMMARY: The United States Copyright Office is inviting interested
parties to discuss potential revisions relating to the library and
archives exceptions in the Copyright Act, 17 U.S.C. 108, in furtherance
of the Copyright Office's policy work in this area over the past ten
years and as part of the current copyright review process in Congress.
The Copyright Office has led and participated in major discussions on
potential changes to section 108 since 2005, with the goal of updating
the provisions to better reflect the facts, practices, and principles
of the digital age and to provide greater clarity for libraries,
archives, and museums. To finalize its legislative recommendation, the
Copyright Office seeks further input from the public on several
remaining issues, including, especially, provisions concerning copies
for users, security measures, public access, and third-party
outsourcing. The Copyright Office therefore invites interested parties
to schedule meetings in Washington, DC to take place during late June
through July 2016, using the meeting request form referenced below.
DATES: Written meeting requests must be received no later than 11:59
p.m. Eastern Time on July 7, 2016.
ADDRESSES: Please fill out the meeting request form found at
www.copyright.gov/policy/section108, being sure to indicate which
topics you would like to discuss. Meetings will be held at the U.S.
Copyright Office, 101 Independence Ave. SE. (Madison Building, Library
of Congress),
[[Page 36595]]
Washington, DC 20540, or as necessary, by phone.
FOR FURTHER INFORMATION CONTACT: Chris Weston, Attorney-Advisor, Office
of the General Counsel, cwes@loc.gov, 202-707-8380; Emily Lanza,
Counsel, Office of Policy and International Affairs, emla@loc.gov, 202-
707-1027; or Aurelia J. Schultz, Counsel, Office of Policy and
International Affairs, aschu@loc.gov, 202-707-1027.
SUPPLEMENTARY INFORMATION:
I. Background
Congress enacted section 108 of title 17 in 1976, authorizing
libraries and archives to reproduce and distribute certain copyrighted
works on a limited basis for the purposes of preservation, replacement,
and research, placing these excepted activities outside the scope of
exclusive rights set forth in section 106.\1\ Before 1976, these
institutions relied on a combination of common law and professional
practices to help determine the scope of permissible activities under
the law, including non-binding agreements between libraries and
publishers.\2\ As libraries and archives increasingly employed
photocopying in the 1950s and 1960s,\3\ however, Congress began to
explore the need for clearer guidance for all involved. In 1966, the
House Judiciary Committee noted that past efforts to come to a
reasonable arrangement on library photocopying had failed and urged
``all concerned to resume their efforts to reach an accommodation under
which the needs of scholarship and the rights of authors would both be
respected.'' \4\ Several years later, the Senate Judiciary Committee
also noted photocopying's role in the ``evolution in the functioning
and services of libraries'' and the need for Congress to respond to
these changes in technology with a statutory exception.\5\
---------------------------------------------------------------------------
\1\ See H.R. Rep. No. 94-1476, at 74-79 (1976), as reprinted in
1976 U.S.C.C.A.N. 5659, 5688-92.
\2\ See Register of Copyrights, Library Reproduction of
Copyrighted Works (17 U.S.C. 108) 14 (1983) (discussion of the
``Gentlemen's Agreement'' of 1935, a voluntary agreement negotiated
between publishers and libraries that set a standard of acceptable
conduct for reproduction of copyrighted materials by libraries).
\3\ A 1959 copyright study prepared at the request of Congress
noted that the ``various methods of photocopying have become
indispensable to persons engaged in research and scholarship, and to
libraries that provide research material in their collections to
such persons.'' Borge Varmer, U.S. Copyright Office at the Library
of Congress, Study No. 15: Photoduplication of Copyright Material by
Libraries, at 49 (1959), reprinted in Staff of S. Comm. on the
Judiciary, 86th Cong., Copyright Law Revision: Studies Prepared for
the Subcomm. on Patents, Trademarks, and Copyrights of the Comm. on
the Judiciary, United States Senate: Studies 14-16 (Comm. Print
1960).
\4\ H.R. Rep. No. 89-2237, at 65 (1966).
\5\ S. Rep. No. 93-983, at 123 (1974).
---------------------------------------------------------------------------
Crafting an appropriate statutory exception for libraries and
archives was part of a larger revision process undertaken and enacted
by Congress as part of the 1976 Copyright Act. A key characteristic of
section 108 is that it provides specific exceptions pertaining to
frequent library and archives activities, such as preservation copying
and making and distributing copies for users, but does not preclude
these institutions from relying upon the more general fair use
exception of section 107 as well. In fact, Congress enacted an express
savings clause for fair use, thereby ensuring that courts could look to
both provisions.\6\
---------------------------------------------------------------------------
\6\ 17 U.S.C. 108(f)(4) (``Nothing in this section . . . in any
way affects the right of fair use as provided by section 107 . .
.'').
---------------------------------------------------------------------------
As demonstrated by its focus on photocopying, section 108 was
designed to address the prevalent use of print-based analog technology
occurring at the time of enactment. Despite some minor adjustments in
the Digital Millennium Copyright Act of 1998,\7\ which partially took
account of digital reproduction capabilities, the exceptions in section
108 therefore are stuck in time. They did not anticipate and no longer
address the ways in which copyrighted works are created, distributed,
preserved, and accessed in the twenty-first century.\8\ Additionally,
over time the structure and wording of section 108 have proven to be
difficult to implement for both lawyer and layperson. Ultimately,
section 108 ``embodies some now-outmoded assumptions about technology,
behavior, professional practices, and business models'' \9\ that
require revision and updating.
---------------------------------------------------------------------------
\7\ Digital Millennium Copyright Act, Public Law 105-304, 404,
112 Stat. 2860, 2889 (1998) (expanding the number of copies and
phonorecords permitted for purposes of preservation and security,
for deposit for research use in another library or archives, and for
replacement, from one to three; and restricting digital copies and
phonorecords to the premises of the library or archives).
\8\ Section 108 Study Group, The Section 108 Study Group Report
i (2008), www.section108.gov/docs/Sec108StudyGroupReport.pdf
(``Study Group Report'').
\9\ Id.
---------------------------------------------------------------------------
The key aspects of section 108 and the policy work conducted to
date are summarized below.
A. Overview of Section 108
Section 108 applies only to libraries and archives (terms that are
not defined) that are either open to the general public or to
unaffiliated researchers in the relevant specialized field.\10\
Activities covered by the section cannot be undertaken for ``any
purpose of direct or indirect commercial advantage,'' \11\ and copies
must contain the copyright notice as it appears on the source copy, or
if there is no such notice, bear a legend stating that the work may be
protected by copyright.\12\
---------------------------------------------------------------------------
\10\ 17 U.S.C. 108(a)(2).
\11\ Id. at 108(a)(1).
\12\ Id. at 108(a)(3).
---------------------------------------------------------------------------
Section 108 includes two provisions for libraries and archives to
make reproductions in order to maintain the works in their collections;
these provisions apply to all categories of copyrighted works. The
first such provision allows a library or archives to reproduce three
copies of an unpublished work in its collections for purposes of
preservation, security, or deposit for research in another eligible
institution.\13\ Digital copies made under this provision cannot be
made available to the public outside the premises of the library or
archives.\14\ The second maintenance exception allows the reproduction
of three copies of a published work for replacement purposes, but only
if the source copy of the work is ``damaged, deteriorating, lost, or
stolen'' or the copy is stored in an obsolete format, and the library
or archives cannot locate an unused copy of the work at a fair price
after a reasonable effort to do so.\15\ The replacement exception
contains the same restriction prohibiting distribution of digital
copies outside the premises of the library or archives.\16\
---------------------------------------------------------------------------
\13\ Id. at 108(b).
\14\ Id. at 108(b)(2).
\15\ Id. at 108(c).
\16\ Id. at 108(c)(2).
---------------------------------------------------------------------------
Section 108 also contains a set of provisions concerning the
reproduction and distribution of materials in an eligible institution's
collections for users, either upon direct request or as part of
interlibrary loan. These exceptions do not apply to musical works;
pictorial, graphic, or sculptural works (other than illustrations or
similar adjuncts to literary works); and most audiovisual works,
including motion pictures.\17\ Libraries and archives may reproduce and
distribute for a user one copy of an article or contribution to a
collection, or a small part of a larger work.\18\ They may also
reproduce and distribute entire or substantial portions of works for
users, but only if a reasonable investigation shows that a copy is not
otherwise obtainable at a fair price.\19\ Additionally, section 108
states that, in making and distributing copies for users, a library or
archives may not
[[Page 36596]]
engage in ``related or concerted reproduction or distribution of
multiple copies'' of the same material,\20\ and that, when making
interlibrary loan copies, an institution cannot ``do so in such
aggregate quantities as to substitute for a subscription to or purchase
of such a work.'' \21\
---------------------------------------------------------------------------
\17\ Id. at 108(i).
\18\ Id. at 108(d).
\19\ Id. at 108(e).
\20\ Id. at 108(g)(1).
\21\ Id. at 108(g)(2). Initial guidance as to the practical
limits indicated by this phrase was provided by the National
Commission on New Technological Uses of Copyrighted Works (CONTU),
which in 1976 formulated guidelines for how many copies of a
particular article or periodical could be made for interlibrary loan
purposes without risking market substitution. H.R. Rep. No. 94-1733,
at 72-73 (1976) (Conf. Rep.), as reprinted in 1976 U.S.C.C.A.N.
5809, 5813-14. Congress, while incorporating the CONTU guidelines
into the Conference Committee Report to the Copyright Act of 1976,
cautioned that they would require ``continuous reevaluation and
adjustment.'' Id. at 71.
---------------------------------------------------------------------------
In addition to its provisions governing internal maintenance copies
and reproduction and distribution of copies for users, section 108 also
provides libraries and archives with a safe harbor from liability for
the unsupervised use of its on-premises reproducing equipment, provided
that they post notices stating that making copies may be subject to
copyright law.\22\ Another provision gives libraries and archives the
ability to reproduce, distribute, display, or perform any work in its
last 20 years of copyright protection for preservation, scholarship, or
research, provided the work is not being commercially exploited by its
owner.\23\
---------------------------------------------------------------------------
\22\ 17 U.S.C. 108(f)(1).
\23\ Id. at 108(h).
---------------------------------------------------------------------------
Finally, subsection (f)(4) of section 108 contains two provisions
that govern the exceptions' overall applicability. It first states that
nothing in section 108 ``in any way affects the right of fair use as
provided by section 107.'' \24\ Subsection (f)(4) also provides that
any contractual obligation assumed by a library or archives upon
obtaining a work for its collections supersedes the institution's
privileges under section 108.\25\
---------------------------------------------------------------------------
\24\ Id. at 108(f)(4).
\25\ Id.
---------------------------------------------------------------------------
B. Revision Work to Date
As Congress has reviewed the copyright law in recent years, the
Copyright Office has noted consistently that exceptions and limitations
are critical to the digital economy and must be calibrated by Congress
as carefully and deliberatively as provisions governing exclusive
rights or enforcement. Section 108, in particular, has been a long-
standing focus of the Copyright Office because, properly updated, it
can provide professionals in libraries, archives, and museums with
greater legal certainty regarding the permissibility of certain core
activities.
In 2005, the Copyright Office and the National Digital Information
Infrastructure and Preservation Program of the Library of Congress
sponsored and administered an independent study group charged with
producing a report and set of recommendations on potential improvements
to section 108. The study group members included distinguished and
experienced librarians, copyright owners, archivists, academics, and
other memory institution specialists and copyright lawyers.\26\ The
``Section 108 Study Group'' \27\ made note of a number of ways in which
digital technologies have impacted copyright law, including ``(1)
opportunities for new revenue sources derived from new distribution
methods, (2) increased risks of lost revenue and control from
unauthorized copying and distribution, (3) essential changes in the
operations of libraries and archives, [and] (4) changing expectations
of users and the uses made possible by new technologies.'' \28\ Over
the course of nearly three years, the Study Group engaged in analysis,
review, and discussion of the best ways in which to update section 108
to address the digital age.
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\26\ See Members of the Section 108 Study Group, https://www.section108.gov/members.html (last visited May 25, 2016).
\27\ Referred to as the Study Group in this notice.
\28\ Study Group Report at 28.
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The Study Group issued its report in March 2008, calling for an
extensive revision to update section 108.\29\ The report also pointed
out several areas where section 108 required amendment but where the
members of the Study Group could not agree on a solution.\30\ The Study
Group unanimously recommended revising section 108 in nine separate
areas, plus a general recommendation for re-organizing the section's
provisions. Among the more significant recommendations were to:
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\29\ Id. at iii.
\30\ Id. at 95-112.
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Allow museums to be eligible along with libraries and
archives.\31\
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\31\ Id. at 31-33.
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Add new eligibility criteria, such as having a public
service mission, employing a professional staff, and providing
professional services.\32\
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\32\ Id. at 34-38.
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Allow libraries and archives to outsource some of the
activities permitted by section 108 to third parties, under certain
conditions.\33\
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\33\ Id. at 39-42.
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Replace the three-copy limits in the preservation,
security, deposit for research, and replacement provisions with
conceptual limits allowing a limited number of copies as reasonably
necessary for the given purpose.\34\
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\34\ Id. at 52-54, 61-65.
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Revise the prohibition on making digital preservation and
replacement copies publicly available off-premises, so that it does not
apply when the source and the new copy are in physical formats, such as
CDs or DVDs.\35\
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\35\ Id. at 52, 57, 61, 66.
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Allow specially qualified institutions to preemptively
reproduce publicly disseminated works at special risk of loss for
preservation purposes only, with limited access to the copies.\36\
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\36\ Id. at 69-79. The Report also recommended replacing the
published/unpublished distinction with the more practical publicly
disseminated/not publicly disseminated binary, wherein works made
available to the public, but not via distribution of material copies
(as is required for publication), would fall into the publicly
disseminated category. See id. at 47-51.
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Create a new provision for the capture, reproduction, and
limited re-distribution of ``publicly available online content,'' e.g.,
Web sites and other works freely available on the internet.\37\ Rights-
holders would be allowed to opt out of having their content captured or
re-distributed.\38\
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\37\ Id. at 80-87.
\38\ Id. at 85-87.
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Apply the safe harbor from liability for copies made on
unsupervised reproduction equipment to user-owned, portable equipment,
as well as equipment residing on the library's or archives'
premises.\39\
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\39\ Id. at 91-92.
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The Study Group also made note of several areas of section 108 that
all members agreed required revision, but could not come to a unanimous
decision on what the revision should look like.\40\ The issues
identified by the Study Group in this section of the Report concerned
copies made at the request of users, specifically:
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\40\ Id. at 95-112. Additionally, a third section of the Report
discussed issues that some, but not all, of the Study Group members
thought merited statutory revision, including whether to allow
certain exceptions to override contrary contractual agreements. Id.
at 113-124.
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The need to replace the single-copy limit with a
``flexible standard more appropriate to the nature of digital
materials.'' \41\
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\41\ Id. at 98-101.
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Explicitly permitting electronic delivery of copies for
users under certain conditions.\42\
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\42\ Id. at 98, 101-103.
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Allowing copies for users to be made of musical works;
pictorial, graphic, or sculptural works; and motion pictures and other
audiovisual
[[Page 36597]]
works, under conditions that limit the risk of market substitution.\43\
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\43\ Id. at 106-112.
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Following the issuance of the Study Group's report, the Copyright
Office, led by the then-Register of Copyrights, comprehensively
reviewed the underlying analyses of the Study Group and examined a
number of questions left unresolved due to lack of consensus amongst
disparate Study Group members. On April 5, 2012, the current Register
and senior staff met with Study Group members to review the 2008 report
and discuss subsequent developments. Most Study Group members agreed
that updating section 108 remained a worthwhile goal, and some
suggested that the Report did not go far enough, particularly in
recommending changes to the provisions regarding copies for users.
Additionally, several members described an increasing practice of
librarians and archivists more frequently relying upon fair use as the
legal basis for their activities, making section 108 more urgent or
less urgent as a revision matter, depending on one's perspective.
In February 2013, the Copyright Office co-sponsored with Columbia
Law School a public conference on section 108, entitled ``Copyright
Exceptions for Libraries in the Digital Age: Section 108 Reform.'' The
all-day conference served as a valuable and comprehensive adjunct to
the Study Group Report. Among other issues, it addressed such topics as
the current landscape of similar exceptions in the United States and
internationally, the recommendations of the Study Group, what changes
should be made to section 108 in terms of its scope, and whether and
how mass digitization by libraries and archives should be
permitted.\44\
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\44\ See Symposium Issue: Section 108 Reform, 36 Colum. J.L. &
Arts 527 (2013); the program and videos of the program are available
at Section 108 Reform, Kernochan Ctr. for Law, Media, and the Arts,
https://web.law.columbia.edu/kernochan/symposia/section-108-reform
(last visited May 10, 2016).
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More recently, section 108, along with the issues of orphan works
and mass digitization, was the subject of a hearing on ``Preservation
and Reuse of Copyrighted Works'' held by the House Subcommittee on
Courts, Intellectual Property, and the Internet on April 2, 2014.\45\
At the hearing, there was disagreement among the six witnesses over
whether or not section 108 reform is advisable as a legal matter or
possible as a practical matter. One librarian-member of the Section 108
Study Group told Congress that the existing framework does not require
amendment \46\ and anticipated great difficulty in translating the
Study Group's (limited) recommendations into effective legislation.\47\
However, the co-chair of the Section 108 Study Group, the former
general counsel to a book publisher, advocated for revisions,
emphasizing the clarity that a ``workable, up-to-date and balanced''
section 108 could bring to both libraries and copyright owners ``in
specific situations.'' \48\ Another witness, an audiovisual
conservation expert at the Library of Congress, testified that it is
important to ``[m]odernize Sec[tion] 108 so that the Library of
Congress can fulfill its mission to preserve audiovisual and other
materials,'' \49\ and recommended specific changes to the preservation,
replacement, copies for users, and other provisions.\50\
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\45\ Preservation and Reuse of Copyrighted Works: Hearing Before
the Subcomm. on Courts, Intellectual Prop., & the Internet of the H.
Comm. on the Judiciary, 113th Cong. (2014); the official transcript
of the hearing is available at https://judiciary.house.gov/wp-content/uploads/2016/02/113-88-87423.pdf.
\46\ Id. at 32 (testimony of James G. Neal, Vice President for
Information Services and University Librarian, Columbia University)
(``[T]he existing statutory framework, which combines the specific
library exceptions in section 108 with the flexible fair use right,
works well for libraries and does not require amendment.'').
\47\ Id. at 42 (statement of James G. Neal, Vice President for
Information Services and University Librarian, Columbia University)
(noting, for example the difficulty of resolving issues as simple as
``. . . how museums should be defined, and the need to define
libraries and archives, currently undefined in Section 108.'').
\48\ Id. at 30 (statement of Richard S. Rudick, Co-Chair,
Section 108 Study Group).
\49\ Id. at 11 (statement of Gregory Lukow, Chief, Packard
Campus for Audio Visual Conservation, Library of Congress).
\50\ Id. at 15-18 (for example, ``[r]evise subsections 108(b)
and (c), which govern the reproduction of unpublished and published
works, to allow for the use of current technology and best practices
in the preservation of film, video, and sound recordings'').
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Most recently, in her April 29, 2015, testimony to the House
Judiciary Committee regarding the universe of copyright policy issues,
the Register of Copyrights stated that section 108 is among the matters
ready for Congressional consideration.\51\ ``Based on the entirety of
the record to date,'' the Register explained,
---------------------------------------------------------------------------
\51\ Register's Perspective on Copyright Review: Hearing Before
the H. Comm. on the Judiciary, 114th Cong. 5 (2015) (testimony of
Maria A. Pallante, Register of Copyrights and Director, U.S.
Copyright Office) (``[L]ibrary exceptions or the exceptions for
persons who are blind or visually impaired . . . are outdated to the
point of being obsolete . . . [; these outdated exceptions] do not
serve the public interest, and it is our view that it is untenable
to leave them in their current state.'').
the Office has concluded that Section 108 must be completely
overhauled. One enduring complaint is that it is difficult to
understand and needlessly convoluted in its organization. The Office
agrees that the provisions should be comprehensive and should be
related logically to one another, and we are currently preparing a
discussion draft. This draft will also introduce several substantive
changes, in part based upon the recommendations of the Study Group's
2008 report. It will address museums, preservation exceptions and
the importance of ``web harvesting'' activities.\52\
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\52\ Id. at 20-21 (statement of Maria A. Pallante, Register of
Copyrights and Director, U.S. Copyright Office) (citations omitted).
---------------------------------------------------------------------------
C. The International Perspective
Many other countries have recognized the global significance of
copying and preservation exceptions for libraries and archives and are
also reviewing their relevant exceptions at this time. As of June 2015,
156 World Intellectual Property Organization (WIPO) member states had
at least one statutory library exception, addressing issues such as
making copies of works for readers, researchers, and other library
users as well as copies for preservation.\53\ The most recent WIPO
study on copyright limitations and exceptions for libraries and
archives observed that ``exceptions for libraries and archives are
fundamental to the structure of copyright law throughout the world, and
that the exceptions play an important role in facilitating library
services and serving the social objective of copyright law.'' \54\
---------------------------------------------------------------------------
\53\ Kenneth D. Crews, WIPO Study on Copyright Limitations and
Exceptions for Libraries and Archives, WIPO Doc. SCCR/30/3, at 6
(June 10, 2015).
\54\ Id.
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Some countries have also recently considered updating and amending
their statutory library exceptions to address the digital landscape.
For example, Canada in 2012 amended its copyright statute to permit
libraries, archives, and museums to provide digital copies of certain
works to persons requesting the copies through another institution.\55\
Similarly, the European Union has stated that in 2016 it would examine
legislative proposals that would allow cultural heritage institutions
to use digital technologies for preservation.\56\
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\55\ Copyright Act, R.S.C. 1985, c C-42, ss. 5.02, 30.2 (Can.).
\56\ European Commission Press Release MEMO/15/6262, Making EU
copyright rules fit for the digital age -- Questions & Answers (Dec.
9, 2015), https://europa.eu/rapid/press-release_MEMO-15-6262_en.htm.
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For many years, WIPO has considered a treaty proposal on copyright
limitations and exceptions for libraries and archives that would
mandate a right of preservation for library and archival materials,
enabling these institutions to reproduce for preservation purposes as
[[Page 36598]]
many copies of works that are needed in accordance with best
professional practices.\57\ Advocating a more ``soft law'' approach,
the United States government instead has encouraged member states to
adopt national statutory library exceptions that are consistent with
their current international obligations \58\ and that further the broad
objectives of preservation and public service.\59\
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\57\ See The Case for a Treaty on Exceptions and Limitations for
Libraries and Archives: Background Paper by IFLA, ICA, EIFL and
INNOVARTE, WIPO Doc. SCCR/23/3 (Nov. 15, 2011).
\58\ Article 9(2) of the Berne Convention for the Protection of
Literary and Artistic Works provides that signatory counties may
permit the reproduction of works ``in certain special cases,
provided that such reproduction does not conflict with a normal
exploitation of the work and does not unreasonably prejudice the
legitimate interests of the author.'' Berne Convention for the
Protection of Literary and Artistic Works, Sept. 9, 1886, as last
revised July 24, 1971, 25 U.S.T. 1341, 828 U.N.T.S. 221. The WIPO
Copyright Treaty and the WIPO Performances and Phonograms Treaty
apply the same standard outlined in Article 9(2) of the Berne
Convention for all rights granted under those treaties. WIPO
Copyright Treaty art. 10(2), Dec. 20, 1996, S. Treaty Doc. No. 105-
17, 36 I.L.M. 65 (1997); WIPO Performances and Phonograms Treaty
art. 16(2), Dec. 20, 1996, S. Treaty Doc. No. 105-17, 36 I.L.M. 76
(1997).
\59\ Objectives and Principles for Exceptions and Limitations
for Libraries and Archives, WIPO Doc. SCCR/26/8 (Jan. 10, 2014).
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II. Revision of Section 108--Current Discussion Draft Proposals
The Copyright Office notes that, since the enactment of the
Copyright Act of 1976, the views of the library and archives community
regarding section 108 have become less uniform and more complicated,
particularly as courts have supported newer applications of the fair
use doctrine vis-[agrave]-vis a number of digitization and access
activities. Indeed, fair use clearly supports a wider range of
reproduction activities than it did when section 108 was first
codified.\60\ The ever-evolving nature of the law is instructive and
important. Among other things, it underscores the advisability of
allowing section 108 and section 107 to co-exist, while ensuring that
each provision is positioned for the future, free from the analog
restrictions of a bygone era.
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\60\ See, e.g., Authors Guild v. Google, Inc., 804 F.3d 202 (2d
Cir. 2015), cert. denied, 136 S.Ct. 1658 (mem.) (2016); Authors
Guild, Inc. v. HathiTrust, 755 F.3d 87 (2d Cir. 2014); see also
Library Copyright Alliance, Before the House Committee on the
Judiciary: Recommendations of the Library Copyright Alliance on
Copyright Reform 4 (May 8, 2015), https://www.librarycopyrightalliance.org/storage/documents/lca-copyright-reform-amendments.pdf (``[A]s the recent decision in Authors Guild
v. HathiTrust . . . makes clear, fair use supplements Section 108
and thus provides a sufficient mechanism for updating it when
necessary.'').
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As noted by the Study Group, updating section 108 would provide
libraries and archives with a clear and unequivocal basis for their
digital preservation, distribution, and other activities,
notwithstanding that some of these activities may also be permissible
under fair use.\61\ Congress specifically drafted section 108 to
include a fair use savings clause in acknowledgement of the importance
of fair use, noting in the 1976 Act's legislative history that ``[n]o
provision of section 108 is intended to take away any rights existing
under the fair use doctrine.'' \62\ Indeed, almost forty years later,
the Chair of the House Judiciary Committee has recognized that a
specific, and separate, library exception is still an important
supplement to fair use because ``fair use is not always easy to
determine, even to those with large legal budgets[, and t]hose with
smaller legal budgets or a simple desire to focus their limited
resources on preservation may prefer to have better statutory guidance
than exists today.'' \63\ In fact, there is no reasonable question that
the fair use doctrine should or will continue to be available to
libraries and archives as an essential provision and planning tool, or
that section 108 has proved valuable and should continue to set forth a
list of excepted activities for the benefit of library professionals.
If there is a lingering debate, it is more accurately about whether
these excepted activities should be updated for the digital age or left
in their increasingly irrelevant state, a question that is less about
the importance of providing clear guidance to library, archives, and
museum professionals and more about how sections 108 and 107 will
operate together in the future.\64\
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\61\ See Study Group Report at 21-22; see also 17 U.S.C.
108(f)(4); HathiTrust, 755 F.3d at 94 n.4 (``[W]e do not construe
Sec. 108 as foreclosing our analysis of the libraries' activities
under fair use.'').
\62\ H.R. Rep. No. 94-1476, at 74 (1976), as reprinted in 1976
U.S.C.C.A.N. 5659, 5687-88; see also S. Rep. No. 91-1219, at 6
(1970) (``The rights given to the libraries and archives by this
provision of the bill are in addition to those granted under the
fair-use doctrine.''). Further, the court in HathiTrust expressly
rejected plaintiffs' argument that fair use did not apply to the
activities at issue in the case because section 108 alone governs
reproduction of copyrighted works by libraries and archives, finding
that because ``section 108 also includes a `savings clause' . . . .
we do not construe Sec. 108 as foreclosing our analysis of the
Libraries' activities under fair use . . .'' HathiTrust, 755 F.3d at
94 n.4.
\63\ Preservation and Reuse of Copyrighted Works: Hearing Before
the Subcomm. on Courts, Intellectual Prop., & the Internet of the H.
Comm. on the Judiciary, 113th Cong. 6 (2014) (statement of Rep. Bob
Goodlatte, Chairman, H. Comm. on the Judiciary).
\64\ See, e.g., id. at 26 (testimony of Richard S. Rudick, Co-
Chair, Section 108 Study Group) (noting that ``reliance on section
107 for purposes that go far beyond those originally conceived or
imagined invites, as we have seen, expensive litigation with
uncertain results.''); see also The Scope of Fair Use: Hearing
Before the Subcomm. on Courts, Intellectual Prop., & the Internet of
the H. Comm. on the Judiciary, 113th Cong. 7 (2014) (testimony of
Peter Jaszi, Professor, Faculty Director, Glushko-Samuelson
Intellectual Property Clinic, Washington College of Law, American
University) (noting that specific exceptions like those found in
section 108 can be highly valuable to particular groups of users
even in static form because, ``even though never comprehensive and
often not up to date,'' they are supplemented by fair use).
---------------------------------------------------------------------------
As a matter of public policy, the Copyright Office agrees with the
House Chairman and the Study Group and observes further that
maintaining provisions drafted in, and applicable primarily to, the
analog era is antithetical to the purpose of a well-functioning
copyright law. More specifically, the Copyright Office agrees in
principle with and plans to incorporate many of the Study Group's
recommendations, including:
Adding museums as eligible institutions.
Expanding the preservation, security, and deposit for
research exceptions to include published/publicly disseminated works.
Creating a new exception to permit the reproduction and
distribution of publicly available internet content for preservation
and research purposes, with an opt-out provision.
Allowing the outsourcing of certain section 108 activities
to third-party contractors.
Removing or revising the three-copy limitation for
preservation and security, deposit for research, and replacement
copies.
Finally, as noted above, it is widely known that section 108
suffers from fundamental problems with organization and clarity,
hampering the practical ability of librarians and archivists to utilize
the exceptions. In fact, while the Study Group suggested reorganizing
section 108 rather than re-drafting it,\65\ the Copyright Office
believes that redrafting is the better approach.
---------------------------------------------------------------------------
\65\ Study Group Report at 93-94.
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III. Subjects of Public Inquiry
The Copyright Office invites interested parties to schedule a time
to provide in-person input on the specific subjects below. Note that
while the Copyright Office will provide a comprehensive recommendation
to Congress, we are only revisiting a select number of discrete issues
at this time. A party choosing to respond to this notice of inquiry
need not plan to address every subject listed, but the Copyright Office
requests that each responding party clearly identify each subject that
it plans to discuss.
[[Page 36599]]
Eligibility
1. The attributes that an institution should possess in order to be
eligible for the section 108 exceptions, and how to prescribe and/or
regulate them.
Rights Affected
2. Limiting section 108 to reproduction and distribution
activities, or extending it to permit public performance and display as
well.
Copies for Preservation, Security, Deposit in Another Institution, and
Replacement
3. Restricting the number of preservation and security copies of a
given work, either with a specific numerical limit, as with the current
three-copy rule, or with a conceptual limit, such as the amount
reasonably necessary for each permitted purpose.
4. The level of public access that a receiving institution can
provide with respect to copies of both publicly disseminated and non-
publicly disseminated works deposited with it for research purposes.
Copies for Users
5. Conditioning the unambiguous allowance of direct digital
distribution of copies of portions of a work or entire works to
requesting users, and whether any such conditions should be statutory
or arrived at through a rulemaking process.
Preservation of Internet Content
6. Conditioning the distribution and making available of publicly
available internet content captured and reproduced by an eligible
institution.
Relation to Contractual Obligations
7. How privileging some of the section 108 exceptions over
conflicting contractual terms would affect business relationships
between rights-holders and libraries, archives, and museums.
Outsourcing
8. What activities (e.g., digitization, preservation, interlibrary
loan) to allow to be outsourced to third-party contractors, and the
conditioning of this outsourcing.
Other
9. Whether the conditions to any of the section 108 exceptions
would be better as regulations that are the product of notice-and-
comment rulemaking or as statutory text.
10. Whether and how the use of technical protection measures by
eligible institutions should apply to section 108 activities.
11. Any pertinent issues not referenced above that the Copyright
Office should consider in relation to revising section 108.
Dated: June 2, 2016.
Karyn A. Temple Claggett,
Associate Register of Copyrights and Director of Policy and
International Affairs, U.S. Copyright Office.
[FR Doc. 2016-13426 Filed 6-6-16; 8:45 am]
BILLING CODE 1410-30-P
