Revising Section 108: Copyright Exceptions for Libraries and Archives

Libraries and archives enjoy a special exception in the Copyright Act (section 108) that allows them to reproduce and distribute copyrighted works under certain specific conditions. This exception, however, was drafted in the analog age. Despite some changes as a result of the Digital Millennium Copyright Act of 1998, section 108 has failed to keep up with the rise of digital media and technologies that have fundamentally changed the way in which copyrighted works are made, distributed, preserved, and accessed.

In 2006, an independent committee was convened under the general sponsorship of U.S. Copyright Office and the National Digital Information Infrastructure and Preservation Program of the Library of Congress. The "Section 108 Study Group" was tasked with engaging in independent discussion and producing an independent report and set of recommendations. Members included librarians, copyright owners, archivists, academics, and other experts
(see member list at http://www.section108.gov/members.html.) The Study Group issued its report in March 2008, calling for an extensive revision of section 108 in order to bring it up to date with the digital age. 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.

Current Work

The Register of Copyrights has prioritized the goal of resolving problems related to section 108 in a manner that provides libraries and archives with appropriate and meaningful guidance in the digital age. (See Priorities and Special Projects 2011-2013 at page 8, http://www.copyright.gov/docs/priorities.pdf.) The Copyright Office is formulating a discussion document and preliminary recommendations on amending section 108. The Office's recommendations will draw upon but not be limited to recommendations of the Study Group Report. Further to this, the Office will address solutions to those questions -- primarily concerning distribution of copies by libraries and archives -- that were not resolved by the Study Group. The goal of the Office is to develop exceptions for libraries and archives that allow them to meet their responsibilities in a world of digital preservation, research, and scholarship, while not unduly affecting the incentives that copyright law provides to authors for the creation and dissemination of creative works. The Office will engage with stakeholders through a variety of meetings and public discussions.