Revising Section 108: Copyright Exceptions for Libraries and Archives
The U.S. Copyright Office has completed a discussion document reviewing section 108 of the U.S. Copyright Act in the context of the digital age. Congress enacted section 108 of title 17 in 1976, authorizing libraries and archives to reproduce and distribute certain copyrighted works without permission on a limited basis for the purposes of preservation, replacement, and research. This exception, however, was drafted and enacted in the analog age. Despite some adjustments by the Digital Millennium Copyright Act in 1998, the exceptions in section 108 are stuck in time. The exceptions did not anticipate and no longer address the ways in which copyrighted works are created, distributed, preserved, and accessed in the twenty-first century.
For over a decade, the Copyright Office has led and participated in major discussions on potential changes to section 108, with the goal of updating the provisions to better reflect the facts, practices, and principles of the digital age and providing greater clarity for libraries, archives, and museums. In 2005, the Copyright Office partnered with the National Digital Information Infrastructure and Preservation Program of the Library of Congress to sponsor an independent study group, which issued a comprehensive report in March 2008 calling for an extensive revision of section 108. In February of 2013 the Copyright Office and Columbia Law School held a public symposium on section 108 revision, exploring many of the issues addressed in the 2008 Section 108 Study Group Report.
The Copyright Office’s more recent review of section 108 began during the summer of 2016 with a series of nearly 40 in-person and telephone meetings with interested persons, such as librarians, museum professionals, content creators, archivists, scholars, and technology professionals. The variety of perspectives and practices concerning section 108 activities that arose during these meetings provided the Copyright Office with insight into how section 108 operates or fails to operate in practice. The Copyright Office has issued the Section 108 Discussion Document in an effort to facilitate engagement with possible statutory solutions addressing this important topic.
In the Discussion Document, the Copyright Office restates its longstanding belief that section 108 needs to be updated so that libraries, archives, and museums have a robust, comprehensible, and balanced set of exceptions in order to fulfill their missions. The primary objective of the Discussion Document is to provide a concrete framework for further discussion among stakeholders and Members of Congress. In an effort to provide this framework, the Discussion Document examines the issues raised during recent review and in previous revision work, such as adding museums to the statute; allowing preservation copies to be made of all works in an eligible entity’s collections; and replacing the current three-copy limit with a “reasonably necessary” standard when making copies for preservation and research. The Discussion Document outlines the Copyright Office’s current views and proposals on the various revision issues, including reorganizing section 108 to make it easier to understand and apply in practice; clarifying the contract supremacy provision to grant libraries, archives, and museums more flexibility to make preservation and security copies of works covered by licensing and purchasing agreements; and eliminating the exclusion of musical, pictorial, graphic, or sculptural works, and motion pictures or other audiovisual works from the provisions permitting copies made upon the request of users, under certain conditions. Importantly, the Discussion Document includes model statutory language to guide future discussions, and the Copyright Office is hopeful this language will serve as a means for generating consensus on these and other discrete issues in section 108.