Academic journal article Albany Law Review

Amending the Copyright Act for Libraries and Society: The Section 108 Study Group

Academic journal article Albany Law Review

Amending the Copyright Act for Libraries and Society: The Section 108 Study Group

Article excerpt

Libraries house copyrighted books and journals in their collections, provide intellectual access to them through catalogs and indexes, and make them available to users. Many researchers and readers are able to use library copies of the works over time, so access to the work is shared. Most libraries exist for this very purpose. Archival collections perform a similar function in that they collect papers--both unpublished and published works, organize them and make them available--often to the general public, again for shared access. These organizations, along with museums, serve public missions and each is recognized as a public good. The Copyright Act of 1976, (1) for the first time in the history of copyright, specifically recognized the unique and important role that libraries and archives play in our society. For the purposes of this paper, the word "libraries" also refers to archives as well unless they are specifically differentiated in the particular section.

The digital environment has permanently altered both the library landscape and the society they serve. Not only do libraries continue to acquire works in print but they also acquire access to materials through license agreements to provide electronic access to works, some of which are born digital. Libraries may even acquire the same work in multiple formats including both print and digital. In their role as preservers of works of literature, other written materials and media, libraries use digital technology to preserve works and make them available to users.

Libraries have always dealt with copyright issues but perhaps never more so than today. While a copyright owner may have no objection to the reproduction of works for preservation, what the library may do with preserved copies often is controversial. Should libraries be able to preserve copyrighted works by digital means and then make those digital copies available to scholars and researchers? To other libraries? And this is only one of the questions that libraries and archives seek to have answered regarding digital copies of copyrighted works. Should libraries be able to produce digital copies of analog works for a user at the request of that user? Instead of providing photocopies of articles and book chapters to satisfy interlibrary loan (ILL) requests, should libraries be able to provide a digital copy to the borrowing library for the user or directly to the end-user?

In 1976, Congress provided an exception to the exclusive rights of the copyright owner that permitted libraries and archives to reproduce and distribute copyrighted works under certain circumstances. The exception recognized that libraries provide significant benefit to society. The exceptions worked well for libraries and their users for printed works and photocopy technology and were at least tolerable to copyright holders. Works in digital format, however, present different expectations and capabilities. For libraries, digital technology represents a significantly better method of preservation, improved ways to deliver copies of reproduced works to users at their request and enhanced ability to search and use these copies. For publishers and producers, digital technology offers additional ways to create new and enhanced products for new markets, the ability to count uses of the works and the methods by which to restrict uses through technological controls.

In late 2004, the Copyright Office and the Office of Strategic Initiatives--the home of the National Digital Information Infrastructure and Preservation Program (NDIIPP) (2)--at the Library of Congress began to assemble a group of knowledgeable individuals to consider whether section 108 of the Copyright Act should be amended to reflect changes that the digital revolution has brought to libraries and archives in order to permit them to use digital technology while not unduly impacting the rights of the copyright holder. (3) Register of Copyrights Marybeth Peters had been concerned for some time that the balance in the Copyright Act had changed due to changes in technology. …

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