CO Committed to Seeking Section 108 Revamp Despite Library Opposition
The Copyright Office appears to be fully committed to proceeding with its planned legislative recommendation for a digital-age update of Copyright Act Section 108’s exemption allowing libraries and archives to reproduce and distribute copyrighted works despite ongoing opposition from library and archive stakeholders, several lawyers and lobbyists told us. CO officials told stakeholders in meetings earlier this summer the office wants to release its legislative recommendation before the end of the year, the lawyers and lobbyists said. The CO planned to meet privately with stakeholders through the end of July about its thinking on the Section 108 legislative recommendation. The CO's recommendation is set to 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 (see 1606070052 and 1606210066). The CO ultimately met with around 40 stakeholders, said Internet Archive counsel Lila Bailey.
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CO officials acknowledged library and archive opposition to a revamp, during a meeting with the Library Copyright Alliance but effectively said “‘we’re going ahead anyway’ with it,” said counsel Jonathan Band. He said he heard similar reports from others. Association of American Publishers Vice President-Legal and Governmental Affairs Allan Adler said CO officials told him during their meeting that the office will proceed with the legislative recommendation despite libraries’ misgivings because the CO believes a revamp is “ripe for action.” CO officials said Section 108 Study Group 2008 recommendations indicated areas of consensus, and the office believes “it’s something that they believe House Judiciary Committee leaders would support,” Adler said. The CO may desire to go beyond a simple update and seek to “rewrite the section in its entirety,” he said.
The office appears “likely to go forward” with the Section 108 recommendation because of the “accumulated record” on issues with the section’s current language, which has support from smaller library and copyright entities, said Copyright Alliance CEO Keith Kupferschmid. The alliance met with officials on the Section 108 legislative recommendation to get a sense of where the process was headed, though the industry group and many other content owners are “agnostic” on the need for a change, Kupferschmid said. “At this point, I think they’re trying to determine what the next steps are.” The CO didn't comment.
Band said he told officials that if “they’re serious about trying to make [Section 108] more user friendly,” the office can’t approach the recommendation from the viewpoint of trying to prevent libraries and others affected by the Section 108 exemption from abusing the exemption. “That posture makes no sense in 2016, when you have so much computing power in the hands of individuals,” Band said. “We live in a sea of infringement.” The CO can pursue making the language more logical, but officials “have to acknowledge that the problem is not the libraries and archives,” Band said.
AAP, which supports an overhaul, said in its meeting that the CO should recommend that Congress clarify “the relationship between the specifics of the Section 108 exemption and more general limitations and exemptions like fair use,” Adler said. “It makes little sense for Congress to attempt to craft specific limitations and exceptions that take into account the nature of particular users or particular kinds of works if instead people are simply going to look to fair use in order to support such activities.” Adler noted that the Authors Guild’s HathiTrust Digital Library case turned partly on Section 108's being the only Copyright Act provision that specifically refers to fair use. The U.S. Court of Appeals for the 2nd Circuit ruled in 2014 in favor of HathiTrust’s digital content repository (see 1406120086).
Fair use has "been interpreted as a result of the HathiTrust case in a way that encourages libraries and others to view fair use as the argument to support things that they’d like to do that are not specifically covered by Section 108,” Adler said. “That doesn’t make a hell of a lot of sense.” Bailey said she disputes the CO's view that the Section 108 Study Group's recommendations still represent a consensus given that the HathiTrust case and other recent court rulings have expanded the definition of fair use. Multiple library stakeholders are writing to House Judiciary to also dispute the CO's assertions, she said.
It’s unclear how House Judiciary would react to the CO’s recommendation given how far the committee is in its Copyright Act review, Adler told us. Section 108 was the partial focus of an April 2014 House IP Subcommittee hearing, where witnesses urged a rethink of the section (see 1404030065). Section 108 “will be part of the discussion” if the CO makes a legislative recommendation “but I don’t think we know the extent to which [House Judiciary] will want to take this up,” Kupferschmid said. Committee Chairman Bob Goodlatte, R-Va., has indicated plans to prioritize issues on which there’s the strongest potential for a consensus, such as CO modernization, Band said. “Section 108 certainly can’t be seen as low-hanging fruit since the section’s main beneficiaries aren’t looking for amendments to the exemption,” he said. “The committee is going to have to ask itself if it wants to waste time and effort fixing this when the main stakeholders aren’t asking for it.”