Section 108 - Library Exception to the Copyright Act
If its 90+ degrees, I must be in Washington D.C… Monday July 18th, a sweltering day in our Nation’s Capital, and the day for my meeting with the US Copyright Office on behalf of DMLA to discuss Section 108 of the Copyright Act. Now that I have your attention, Section 108 is a library exception to the Copyright Act, permitting the library to do certain acts including preservation, replacement and patron access to serve the public good that would otherwise be an infringement of the exclusive rights granted to authors.
From 2005-2008 I was a member of a study group funded by the Library of Congress in cooperation with the Copyright Office to study Section 108. I asked to join to bring the perspective of visual artists and image licensing community. Section 108 was and still is out of date; for example where it deals with preservation it was specifically drafted for microfiche and only permits three copies, and is not relevant to digital copies. Images that are not in books are specifically excluded from the exception although there is no legislative history to explain the omission.
At the end of the study period, the Copyright Office came out with a report in 2008 with some conclusions and recommendations. Since then, there has not been any push to revise the legislation to modernize it. The Google book cases were winding their way through the courts and everyone just waited to see the results. Now that the Google decision has gone as far as it can go, the Copyright Office has dusted off the report and asked for in-person meetings from stakeholders. While it is out of date, the library community now seems disinterested as they are pleased with the fair use outcomes in the Hathitrust and Google book cases.
At the meeting I answered questions from members of the Copyright Office’s legal team, Karyn Temple Claggett, Chris Weston, and Aurelia Schultz. The main focus of the discussion was what to be concerned with if visual images were included; how should images be protected, what restrictions should be included, and questions regarding whether libraries should be bound to the terms of licensing contracts. I emphasized that if photographs or other visual images were included as part of this exception that there should be no distribution in conflict with commercial image licensing. While much of section 108 deals with preservation (a good thing, especially with born digital works) some of the exception covers access to works and making copies available for research etc. Since museums want to be included in the exception, visual works may be more relevant if included in the future. Other suggestions included restrictions on viewing, watermarking and the retention of metadata. The review is ongoing and if anyone has any additional thought or perspectives, I can provide additional information to the office.
Later the same day I met with Mary Rasenberger, Executive Director of the Author’s Guild and Mike Klipper in DC who has been advocating on behalf of AMP for Copyright Small Claims legislation. We discussed how to work together as the Author’s Guild was working with Representative Jeffries on a proposed bill while the visual artist associations, including DMLA have been working with Representative Chu on a similar small claims tribunal bill. Jeffries bill was recently submitted in July and Chu is expected to submit a proposed bill in September.