Tag Archives: section 108

Thoughts on the Section 108 Reform Discussion Draft

On Friday, September 15, 2017, the Copyright Office released a discussion document on proposed reform to Section 108 of the Copyright Act, the provision that sets out specific limitations and exceptions for libraries and archives.

In recommending reform, the Copyright Office acknowledges “the fact that many members of the library and archives communities have expressed concern about revising section 108.” However, the Copyright Office is nonetheless convinced that Section 108 should be updated to address the digital age.

The Copyright Office makes several proposals for revision including, among others:

  • Including museums as beneficiaries of the exception as well as adding some additional conditions for eligibility for Section 108
  • Replacing the current published/unpublished distinction with a publicly disseminated/not publicly disseminated distinction
  • Allowing preservation copies for all works to be put into a dark archive
  • Removing the three-copy limit and replacing it with a “reasonably necessary” standard
  • Allowing for a replacement copy to be made for “fragile” copies and expanding off-premises access for replacement copies
  • Eliminating the exclusion of certain works from the provisions permitting copies to be made at the request of users
  • Providing that there is no federal copyright infringement for preservation reproductions in violation of non-bargained-for contractual language, though actions may still be brought for contractual violations
  • Allowing institutions to contract with third parties to perform the reproduction functions under section 108

The report itself, as well as the recommendations, is clearly the product of a great deal of thought and engagement with stakeholders. The recommendations clearly lay out the reasoning behind the proposals and give concrete examples illustrating how the new provisions would operate.

For the most part, the recommended changes to Section 108 reflect the current state of what libraries are already doing under Section 108, supplemented by the fair use right under Section 107. Libraries are already engaged in digitization activities, including mass digitization, for preservation purposes. Although there is a three-copy limit under current Section 108, libraries already engage in the going beyond this limit when making digital copies for the purpose of creating one end-use copy; this is simply a practical extension of what Section 108 intended to permit and fair use should be thought to naturally extend to such temporary, incidental copies.

While codifying these activities to provide a safe harbor so that libraries do not need to rely on fair use is beneficial, in some ways the report fails to fully extend to many of the projects libraries currently engage in. For example, the preservation copies would be limited to a dark archive; libraries already routinely rely on fair use to digitize special collections and provide access to the public. The Copyright Office also chooses not to propose an exception for web-harvesting, though many libraries currently preserve web pages around particular issues.

Although the report contains many positive recommendations—even if they do not fully reflect the current activities of many libraries and archives—one of the deepest concerns regarding reform of Section 108 is that any gains that could be made to update the provision would not be worth the risk of potentially losing the fair use savings clause. Certainly, there is no dispute that Section 108, original written for the 1976 Copyright Act, could benefit from some updates for the digital age. However, these revisions are not necessary because fair use sufficiently updates Section 108 to cover activities necessary in the digital age. Indeed, the Second Circuit confirmed in Authors Guild v. HathiTrust that Section 107 complements the specific provisions in 108.

To be clear, the Copyright Office’s discussion draft explicitly recommends retention of the savings clause and its confirmation of the importance of fair use is much appreciated.

In recognition of Congress’s intent to maintain both section 108 and fair use as tools for libraries and archives, and the use and acceptance of this principle by eligible institutions, copyright owners, users, and the courts, the Copyright Office feels strongly that the fair use savings clause must remain in section 108 regardless of any other amendments that may be found necessary. Even a revised section 108 cannot address every situation in which public policy would deem it reasonable for a library or archives to reproduce or distribute a copy of a work without first attempting to seek permission. In fact, this Discussion Document explicitly leaves web harvesting and similar collection of Internet content by libraries and archives to fair use, and there are other circumstances not addressed by section 108, such as electronic reserves, where fair use must continue to govern. Thus, it is essential that the fair use savings clause stay in section 108.

While the Copyright Office’s commitment to retaining the fair use savings clause is a welcome inclusion in the report, a lingering concern remains as to whether the fair use savings clause would survive the legislative process. Although the Copyright Office recognizes the wisdom and importance of including a savings clause, it is clear that other stakeholders—particularly the Association of American Publishers (AAP) and the Authors Guild—want to remove the savings clause.

In litigation between the Authors Guild and HathiTrust, the Authors Guild advanced the argument that libraries could not rely on fair use because of the existence of a specific limitation and exception under the Copyright Act. Even though the statute clearly provides a savings clause that reads, “Nothing in this section in any way affects the right of fair use . . .” the Authors Guild nonetheless argued against its application. The Second Circuit dismissed this argument in a footnote, but the Authors Guild’s actions in the case show a clear intention to attack fair use.

Similarly, last year, Allan Adler, General Counsel and Vice President of Legal and Government Affairs at AAP, was quoted in Communications Daily as advocating for Congress to “clarify ‘the relationship between the specifics of the Section 108 exemption and more general limitations and exemptions like fair use . . . 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.”

With stakeholders like the AAP and Authors Guild eager to strip Section 108 of its fair use savings clause, supporting Section 108 reform becomes a very risky proposition. While the Copyright Office recommends some reasonable and sensible updates to Section 108 for the digital age, these improvements must be weighed against the risk of losing the fair use savings clause; the proposed changes are clearly not worth trading in the savings clause, but whether it is worth the risk of the legislative process remains a question.

A New Approach to Copyright Exceptions and Limitations

*Guest post by Jonathan Band, policybandwidth*

Any discussion with policymakers or rightsholders concerning the possible adoption of new copyright exceptions and limitations invariably centers on how to make sure that the exception is not abused. This leads to lengthy negotiations resulting in complex, difficult-to-use provisions that resemble the tax code. This pattern has been repeated in connection to the exceptions to section 1201 of the Digital Millennium Copyright Act, the TEACH Act for distance education (17 U.S.C. § 110(2)), the Chafee Amendment for the print disabled (17 U.S.C. § 121), and orphan works legislation, to name just a few of the more salient examples.

It’s time for this pattern to be broken. Rightsholders have nothing to fear from exceptions and their possible abuse. Infringement deriving from abuse of exceptions likely would be a tiny fraction of the overall incidence of infringement. At the same time, preventing the public benefits that flow from exceptions undermines the purpose of the copyright system.

Section 108

Unfortunately, this pattern of developing overly restrictive exceptions may soon repeat itself in the context of the exception for libraries and archives in 17 U.S.C. § 108. In 2005, the Library of Congress and the Copyright Office convened a study group consisting of librarians and publishers to consider how to update section 108 for the digital age. After three contentious years, the study group issued a report recommending several possible amendments to section 108, but could not reach consensus on the details of those amendments, nor on how to handle other important issues such as copies for users or license restrictions.

Notwithstanding this lack of consensus, and over the objection of most libraries and archives, the Copyright Office has decided to urge Congress to revise section 108. This past June, the Copyright Office issued a notice of inquiry stating that it seeks “to finalize its legislative recommendation” concerning a “re-drafting” of section 108. In meetings with stakeholders pursuant to this notice of inquiry, the Copyright Office stated that it hopes to complete its legislative recommendation and transmit it to Congress this fall.

Although the Copyright Office hopes to make section 108 simpler and more user-friendly, the Office’s likely concern about “leakage” almost certainly guarantees that the re-drafted section 108 will be complicated and not understandable by librarians without law degrees. And even if the Office somehow manages to produce a streamlined and comprehensible proposal, the rightsholders can be expected to insist on changes to eliminate possible abuse that will inevitably make the proposal more complex.

There is no doubt that digital networks have facilitated copyright infringement. And while the adverse impact of this infringement probably has been overstated by rightsholders, it is perfectly legitimate for rightsholders to take reasonable measures to address infringement. The operative word here is reasonable. And making exceptions for libraries, educational institutions, or the print disabled difficult to use in order to reduce potential leakage is not reasonable.

There are approximately 200 million smartphone users in the United States, and 2 billion smartphone users worldwide. Each smartphone has the capability of reproducing entire copyrighted works and uploading them to the Internet, where they can be disseminated globally. In a world where this technological capability is literally at the fingertips of so many users, what possible difference could it make if there is a small amount of leakage from a library?

Consider the following examples. Under existing section 108(c), a library is permitted to make a replacement copy of a published work that is damaged or lost if the library determines that an unused replacement cannot be obtained at a fair price. While the library may circulate a physical replacement copy, it cannot make a copy available in a digital format outside the library premises. The Section 108 study group recommended modifying the prohibition on off-site lending of digital replacement copies only to allow the lending of a copy reproduced in a digital physical medium if the library’s original copy was also in a digital physical medium. In other words, if the library owned an audiobook CD that was deteriorating, the study group proposal would allow the library to make and lend a replacement CD, but it would not be able to stream the digital file to a user. Similarly, if its original copy wasn’t digital, the library would not be able to make a digital copy viewable outside of the library premises.

The publishers in the Section 108 study group insisted on these restrictions because they were afraid that the digital files would be retransmitted on the Internet. This concern overlooks four facts. First, the exception would only be available if a replacement copy couldn’t be purchased, i.e., the work was out of print so there would be no market harm, even if unlawful retransmission occurred. Second, unlawful copies of any work for which there is current and likely future demand are already available online, so how much incremental harm could be caused by unlawful retransmission of the library’s replacement copy? Third, technological measures exist to make retransmission difficult. Fourth, as fair use jurisprudence has evolved, making the digital copy available outside the library premises with appropriate technological protections likely would be a fair use. In other words, the library could probably engage in the activity anyway under a fair use theory, so why not save the library the burden of performing the fair use analysis and simply permit it under an explicit exception?

A similar analysis could be performed for many of the study group’s other recommendations. For example, the proposed exception for the archiving of publicly accessible websites was unnecessarily regulatory, especially considering that commercial entities such as Google and Microsoft routinely engage in this activity under a fair use theory.

It is the awareness that section 108 reform will be extremely contentious and unlikely to produce positive results that has led to library opposition to the Copyright Office’s initiative.

Section 1201 Rulemaking

Likewise, the exemptions that the Library of Congress has adopted during the course of the triennial rulemaking under section 1201 of the DMCA reflect an unhealthy obsession with possible abuse. The current exemption, adopted in 2015, permits circumvention of the technological protections on lawfully acquired motion pictures by college and university faculty and students, for use of short portions for educational purposes “in film studies or other courses requiring close analysis of film and media excerpts…where the person engaging in circumvention reasonably believes that screen-capture software or other non-circumventing alternatives are unable to produce the required level of high-quality content.” Thus, an instructor or a student may circumvent only after determining that no alternative to circumvention will produce the “level of high-quality content.” This would necessitate that the instructor or student determine: 1) whether the course requires “close analysis of film and media excerpts;” 2) what level of quality excerpt she needs to satisfy her educational purpose; 3) what are the various available alternatives to circumvention; and 4) whether any of these alternatives will produce the required level of quality excerpt. In the K-12 context, this exemption is available only to instructors, not students.

The Copyright Office designed an exemption that requires educational users to jump through many hoops so as to ensure that the exemption is not abused. At the insistence of rightsholders, the Copyright Office evidently considers circumvention to be a highly dangerous activity that leaves films vulnerable to widespread infringement, and thus must be regulated carefully. However, there is no evidence that any infringement resulted from earlier iterations of the exemption that were more straightforward. Further, the software necessary to circumvent the technological protection measures on DVDs or other storage media is widely available on the Internet and easy to use. Moreover, infringing copies of most films can be found on the Internet soon after release. Thus, a simple, broad circumvention exemption for any educational use would not harm the market for the films in any meaningful way. (At one time, some film studios planned to create a market for licensing film clips to educational institutions, but the enormous number of works educators need to access made development of such a market infeasible.)

A New Approach

Rightsholders’ frustration with their loss of control over their content is understandable. It also is understandable that this frustration would fuel a desire to exercise control wherever they can, even though it makes no difference to their bottom line.

Although the rightsholders’ frustration is understandable, it is bad copyright policy to impose the costs of overly restrictive exceptions on libraries and educational institutions where there is no offsetting benefit to rightsholders or society at large. As the Supreme Court recently stated in Kirtsaeng v. Wiley, “copyright law ultimately serves the purpose of enriching the general public through access to creative works.” The Supreme Court then explained that “the statute achieves that end by striking a balance between two subsidiary aims: encouraging and rewarding authors’ creations while enabling others to build on that work.” Exceptions and limitations are the means to achieve the aim of enabling others to build on a work.

Rather than fight reasonable adjustments to Title 17 to accommodate digital technology, rightsholders should embrace them. This not only would better meet the objectives of the copyright system, it also would be in the long run best interest of rightsholders. Instead of advocating for narrow section 1201 exemptions for educational uses of film clips, studios should encourage the broadest possible use of films in classrooms. Doing so would more deeply entrench the role of films in American culture and society.

Similarly, publishers should facilitate libraries making the robust use of their collections. Libraries spend $4 billion a year acquiring books and other materials. The more access libraries are able to provide to their collections—the more libraries are used—the easier it is for libraries to secure the budget they need to purchase more materials. Additionally, greater access to written materials encourages literacy, which in turn leads to greater demand for written materials. Finally, for many users, the alternative to accessing materials through libraries would not be to purchase the materials, but to find infringing copies on the Internet.

The same logic applies to remixes and fan fiction. More enlightened rightsholders have recognized that these activities deepen fan loyalty and result in increased sales. Additionally, these activities train the next generation of artists. And of course, reasonable exceptions enhance the credibility of the copyright system generality.

In short, rightsholders should stop treating libraries and educational institutions—their biggest customers—as their copyright enemies, and instead assist them in promoting the creation and dissemination of culture by supporting the broadest possible copyright exceptions. If rightsholders can’t change direction on their own, policymakers in Congress, the Copyright Office, and the Executive Branch should lead the way. But until rightsholders and policymakers change their approach to exceptions, attempts to fashion new exceptions will largely be exercises in futility.


Why is the Copyright Office Trying to Reform Section 108?

On July 26, the Library Copyright Alliance (LCA) met with the Copyright Office, in response to the Office’s Notice of Inquiry, to give our views on Section 108—namely, LCA’s opposition to amendment. LCA previously released a statement, consistent with previous documents and statements, expressing deep concern over efforts to reform Section 108. As LCA noted in its most recent statement on Section 108, the library community opposes reform of this section because: 1) Section 108 is not obsolete; 2) fair use provides a sufficient update when necessary; 3) amending Section 108 has inherent risks and could limit what libraries currently do today, including the possibility of affecting fair use; 4) amendment of this section would be highly contentious and a time and resource intensive process.

LCA opened the meeting by reiterating our opposition to reform of Section 108, expanding on the points made in the written statement. Many libraries similarly voiced opposition to Section 108 reform during their meetings with the Copyright Office. Given that the vast majority of the community benefiting from the exception does not want to see Section 108 amended, it is disconcerting that the Copyright Office is planning to go ahead with a recommendation to reform this provision of the Copyright Act. Archives, the other beneficiaries of Section 108, have also voiced opposition to Section 108 reform (see: Society of American Archivists and the Internet Archive statements and blog posts). Given that beneficiaries of this provision oppose any updates to Section 108, that—according to those who actually rely on the provision on a daily basis—Section 108 is not obsolete and continues to function well forty years after its enactment, on what basis is the Copyright Office going forward with its recommendation?

When LCA met with the Copyright Office, we were given two answers. The first, the Copyright Office said, is to add museums as a beneficiary to Section 108, a recommendation made by the Section 108 Study Group. The Copyright Office argued that as a potential beneficiary, museums were strong advocates for reform. The second reason was decidedly less persuasive. Supposedly, authors who benefit from library access and are therefore beneficiaries of Section 108 have advocated for amendment to this provision. While authors may certainly be affected by the various limitations and exceptions under copyright law, it is doubtful that groups such as the Authors Guild want reform because of insufficient access to works under Section 108. Of course, because of the way the Copyright Office structured the process—requiring in person meetings or, if necessary, phone discussions—there is no written record.

One of the big complaints LCA has had about the current process is this utter lack of transparency regarding the meetings. LCA’s written statement noted, “LCA is concerned about the lack of transparency relating to this inquiry. LCA expects the Copyright Office to publish a list of the interested parties it meets in the course of this inquiry as well as a detailed summary of what each of these parties advised.” While the Copyright Office has agreed to release a list of everyone they have met with regarding Section 108 reform, it will not be issuing a summary of what was discussed in those meetings. The lack of substantive information regarding the topics of conversation and recommendations by various stakeholders is disappointing. We will not know the substance of the reforms proposed by stakeholders. While authors may indeed be pushing for 108 reform, as the Copyright Office stated in LCA’s meeting, whether it is because they find a lack of access to works in libraries (as the Copyright Office implied) or because they want to restrict library activity (as the Authors Guild certainly tried to do as evidenced by their lawsuit and briefs in its litigation against HathiTrust) cannot be confirmed.

Furthermore, without a written record, comments made during the meeting may be misunderstood. LCA did, for example, discuss some substantive changes to 108 that might be beneficial while trying to reiterate opposition to reform. However, could the Copyright Office construe it as support for reform? Could the Copyright Office issue a legislative proposal and state that the Library Copyright Alliance was supportive of certain concepts, such as contract preemption (a provision which would specify that contracts cannot override limitations and exceptions), and therefore supportive of reform? Hopefully, the Copyright Office will be upfront in any recommendation it makes by putting its proposal in the proper context, explaining that stakeholders have differing approaches and positions with respect to 108 reform efforts.

Ultimately, it seems like a waste of time to put in so much effort to try to reform a section of the copyright law that is actually functioning pretty well. Contrary to the Copyright Office’s repeated assertions that Section 108 is “obsolete,” libraries rely on this provision every day to make preservation copies, to replace items in older formats, to engage in inter-library loan, to reproduce copies for patrons, and more. Copyright Office resources would be better spent addressing areas of copyright that are in greater need of reform, like Section 1201 and the incredibly burdensome process by which one must go through to request an exemption (which the Copyright Office is indeed reviewing), statutory damages, or truly outdated sections of the Copyright Act that refer to things like coin-operated equipment and players (a comment brought up by Jonathan Band during LCA’s meeting).

What’s next? Instead of focusing on the areas in true need of reform or sections that are obsolete, the Copyright Office is pushing forward with a proposal to reform a functioning section of the law. The Copyright Office noted that it was wrapping up its meetings with stakeholders and that it was unlikely to solicit any written comments. The Copyright Office stated that it would prepare a legislative recommendation to be released in the fall or winter. ARL and LCA will carefully review the proposal once it is released. Ultimately, however, the inherent risks in reforming Section 108 are unlikely to outweigh what may be modest benefits in an update to a section of the copyright act that is actually working.

For Further Reading: TechDirt recently released a great post explaining, “Copyright Office Intent on Changing The Part of Copyright That Protects Libraries & Archives, Even Though No One Wants it Changed.”