Appetite for DMCA Section 108 Update Disputed Amid Library Opposition
Contours of the Copyright Office’s pending legislative recommendation for a digital-age update of Copyright Act Section 108’s exemption allowing libraries and archives to reproduce and distribute copyrighted works are clear. But ongoing opposition from library stakeholders makes it far less clear that Congress will want to prioritize an update of the statute, copyright stakeholders said in interviews. The CO said earlier it’s planning meetings with stakeholders in advance of a planned legislative recommendation on a Section 108 update, with those meetings to occur through July (see 1606070052).
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The CO is “pretty far along” in planning the Section 108 recommendation, so “if they haven’t actually put pen to paper on draft recommendations, then they’re pretty close,” said Library Copyright Alliance counsel Jonathan Band. The CO said its planned legislative recommendation will include adding museums as eligible institutions for the reproduction and preservation exemption and expanding the exemption to include “publicly available Internet content” for preservation and research purposes. The CO said it also wants to recommend expanding the exemption to include “published/publicly disseminated works.” The CO wants to seek removal of Section 108’s three-copy limit and to allow “the outsourcing of certain Section 108 activities to third-party contractors.”
The planned legislative recommendation includes many of the top recommendations the office’s Section 108 Study Group made in 2008, said Columbia Law School Kernochan Center for Law, Media & the Arts Executive Director June Besek, a member of the group. The group recommended the section’s exemption be extended to include museums and all works publicly disseminated online, plus a stricter definition of what constitutes a library or archive (see report in the April 3, 2008, issue). “I’m glad [the CO is] picking this up again,” said Copyright Society of the USA President-Elect Nancy Wolff, a Section 108 Study Group member. “Section 108 is long overdue for a facelift” since “it was written in microfiche days.”
The CO appears not to have solidified a possible tightening of the definition of what constitutes a library or archive under the section, or whether to expand the exemption to include public performances and displays, two of the most controversial subjects involved in an update of the statute, an industry lobbyist told us. The issue of creating a narrower definition for qualifying libraries and archives has been particularly thorny for library stakeholders, the lobbyist said. The Library Copyright Alliance’s members, including the American Library Association, are “really not interested in reopening” Section 108 for an update, particularly because it would place limits on libraries’ ability to archive online content, Band said.
An update remains important because the statute’s language is antiquated given the realities of digital distribution of copyrighted works and because the statute’s exemption has become superseded by U.S. courts’ current interpretation of the fair use doctrine, Besek told us. Library groups “would generally prefer to rely on fair use” but many individual librarians “want more guidance” in the statute “about what they can and can’t do,” she said. “The fair use doctrine is much more ambiguous and courts’ interpretation of it is a pendulum. Right now, it’s extended to become fairly broad, but eventually, it will swing back again.” Librarians also would benefit from updating Section 108 to allow more proactive preservation of published works, as the current statute requires some sort of “triggering event” like damage to a work before reproduction is exempted, she said.
“It’s hard to imagine where the perceived need for [a Section 108 update] is coming from,” said ALA Managing Director-Office of Government Relations Adam Eisgrau. “There are so many other things that could productively occupy [the CO] and Congress when it comes to copyright.” Libraries’ resistance to an update in the face of support from the CO and publishing companies “makes for an interesting dynamic” since House Judiciary Committee Chairman Bob Goodlatte, R-Va., has emphasized his preference for pursuing copyright issues where a consensus solution is possible, Band said. “I would think that once Congress understand that [Section 108’s] intended beneficiaries aren’t interested in an update, they’ll say, ‘We have better things to do.’”
Goodlatte “may be reluctant to get in the middle of a heated debate” on Section 108 “but on the other hand if you create a legislative package that includes and update [of the statute], that could be seen as reasonable if it works together with other proposed changes,” Besek said. “Obviously this is not the year for legislation but that doesn’t mean it couldn’t move forward” as a proposal. Many of the proposed elements in a Section 108 update “seem to be quite reasonable,” particularly making museums exempted institutions, she said. “It seems to me it’s hard to argue with that.”