[Federal Register: Date (Volume 71, Number 31)]
[Notices]
[Page 79999-8002]


LIBRARY OF CONGRESS
Copyright Office

[Docket No. 6-10801]

Section 108 Study Group: Copyright Exceptions for Libraries and Archives

AGENCY: Copyright Office, Library of Congress

ACTION: Notice of public roundtables with request for comments.


SUMMARY:

The Section 108 Study Group of the Library of Congress seeks comment on certain issues relating to the exceptions and limitations applicable to libraries and archives under section 108 of the Copyright Act, and announces public roundtable discussions. This notice (1) requests written comments from all interested parties on the specific issues identified in this notice, and (2) announces public roundtable discussions regarding certain of those issues, as described in this notice. The issues covered in this notice relate primarily to eligibility for the section 108 exceptions and copies made for purposes of preservation and replacement.

DATES:

Roundtable Discussions: The first public roundtable will be held in Los Angeles, California on Wednesday, March 8, 2006, from 8:30 a.m. to 4 p.m. P.S.T. An additional roundtable will be held in Washington, DC on Thursday, March 16, 2006 from 9 a.m. to 4:30 p.m. E.S.T. Requests to participate in either roundtable must be received by the Section 108 Study Group by 5 p.m. E.S.T. on February 24, 2006. Written Comments: Interested parties may submit written comments on any of the topics discussed in this notice after 8:30 a.m. E.S.T. on March 17, 2006, and on or before 5 p.m. E.S.T. on April 17, 2006.

ADDRESSES:

All written comments and requests to participate in roundtables should be addressed to Mary Rasenberger, Policy Advisor for Special Programs, U.S. Copyright Office. Comments may be sent (1) by electronic mail (preferred) to the e-mail address section108@loc.gov; (2) by commercial, non-government courier or messenger, addressed to the U.S. Copyright Office, James Madison Memorial Building, Room LM- 401, 101 Independence Avenue, SE., Washington, DC 20559-6000, and delivered to the Congressional Courier Acceptance Site (CCAS), 2nd and D Streets, NE., Washington, DC, between 8:30 a.m. and 4 p.m. E.S.T.; or (3) by hand delivery by a private party to the Public Information Office, U.S. Copyright Office, James Madison Memorial Building, Room LM-401, 101 Independence Avenue, SE., Washington, DC 20559-6000, between 8:30 a.m. and 5 p.m. E.S.T. (See Supplementary Information, Section 4: ``Procedures for Submitting Requests to Participate in Roundtable Discussions and for Submitting Written Comments'' below for file formats and other information about electronic and non-electronic submission requirements.) Submission by overnight service or regular mail will not be effective. The public roundtable in Los Angeles, California will be held at the UCLA School of Law, Room 1314, Los Angeles, CA 90095, on Wednesday, March 8, 2006. The public roundtable in Washington, DC will be held in the Rayburn House Office Building, Room 2237, Washington, DC 20515, on Thursday, March 16, 2006.

 

FOR FURTHER INFORMATION CONTACT:

Chris Weston, Attorney-Advisor, U.S. Copyright Office, E-mail: cwes@loc.gov; Telephone (202) 707-2592; Fax (202) 252-3173.

SUPPLEMENTARY INFORMATION:

1. Background

    The Section 108 Study Group was convened in April 2005 under the sponsorship of the Library of Congress's National Digital Information 
Infrastructure and Preservation Program (NDIIPP) in cooperation with the U.S. Copyright Office. The Study Group is charged with examining 
how the section 108 exceptions and limitations may need to be amended, specifically in light of the changes produced by the widespread use of 
digital technologies. More detailed information regarding the Section 108 Study Group can be found at http://www.loc.gov/section108.

    To date, the Study Group has principally focused on the issues identified in this notice, namely those relating to: (1) Eligibility 
for the section 108 exceptions; (2) amendments to the preservation and replacement exceptions in subsections 108 (b) and (c), including 
amendments to the three-copy limit, the subsection 108(c) triggers, the separate treatment of unpublished works, and off-site access 
restrictions; (3) proposal for a new exception to permit the creation of preservation-only/restricted access copies in limited circumstances; 
and (4) proposal for a new exception to permit capture of websites and other online content. Pursuant to 2 U.S.C. 136, the Study Group now 
seeks input, through both written comment and participation in the public roundtables described in this notice, on whether there are 
compelling concerns in any of the areas identified that merit a legislative or other solution and, if so, what solutions might 
effectively address those concerns without conflicting with the legitimate interests of authors and other rights-holders.

2. Areas of Inquiry

    Public Roundtables. Due to time constraints, the Study Group will 
not be

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discussing all of the issues addressed in this notice at the March roundtables. Each of the four general topic areas will be addressed, 
but discussion of the second topic area (``Amendments to current subsections 108(b) and (c)'') will be limited to off-premises access. 
As noted below, written comments, however, may address any of the issues set out in this notice. Participants in the roundtable 
discussions will be asked to respond to the specific questions set forth below (see Supplementary Information, Section 3: ``Specific 
Questions'') during discussions on each of the four following topics, at the following places and times:
A. Eligibility for the section 108 exceptions:
     Los Angeles, CA: Wednesday, March 8, morning session
     Washington, DC: Thursday, March 16, morning session
B. Proposal to amend subsections 108(b) and (c) to allow access 
outside the premises in limited circumstances:
     Los Angeles, CA: Wednesday, March 8, morning session
     Washington, DC: Thursday, March 16, morning session
C. Proposal for a new exception for preservation-only/restricted 
access copying:
     Los Angeles, CA: Wednesday, March 8, afternoon session
     Washington, DC: Thursday, March 16, afternoon session
D. Proposal for a new exception for the preservation of websites:
     Los Angeles, CA: Wednesday, March 8, afternoon session
     Washington, DC: Thursday, March 16, afternoon session
    Written Comments. The Study Group seeks written comment on each of the topic areas identified in this notice. Comment will be sought on 
other general topics pertaining to section 108-such as making copies upon patron request, interlibrary loan, eReserves, and licensing-at a 
later date (and may be the subject of future roundtables).

3. Specific Questions

    The Study Group seeks comment and participation in the roundtable discussions on the questions set forth below. Background information 
and a more detailed discussion of the issues can be found in the document titled ``Information for the March 2006 Public Roundtables and 
Request for Written Comments'' located on the Section 108 Study Group Web site at http://www.loc.gov/section108. It is important to read this 
background document in order to obtain a full understanding of the issues surrounding the following questions and provide appropriate 
input through written comments or participation in the roundtable discussions.

Topic 1: Eligibility for Section 108 Exceptions

    Should further definition of the terms ``libraries'' and ``archives'' (or other types of institutions) be included in section 
108, or additional criteria for eligibility be added to subsection 108(a)?
    Should eligible institutions be limited to nonprofit and government entities for some or all of the provisions of section 108? What would 
be the benefits or costs of limiting eligibility to institutions that have a nonprofit or public mission, in lieu of or in addition to 
requiring that there be no purpose of commercial advantage?
    Should non-physical or ``virtual'' libraries or archives be included within the ambit of section 108? What are the benefits of or 
potential problems of doing so?
    Should the scope of section 108 be expanded to include museums, given the similarity of their missions and activities to those of 
libraries and archives? Are there other types of institutions that should be considered for inclusion in section 108?
    How can the issue of outsourcing be addressed? Should libraries and archives be permitted to contract out any or all of the activities 
permitted under section 108? If so, under what conditions?

Topic 2: Amendments To Current Subsections 108(b) and (c)

    Three Copy Limit. (This topic will not be addressed at the March roundtable discussions.) Should the three-copy limit in subsections 108 
(b) and (c) be replaced with a flexible standard more appropriate to the nature of digital materials, such as ``a limited number of copies 
as reasonably necessary for the permitted purpose''? Would such a conceptual, as opposed to numerical, limit be sufficient to protect 
against potential market harm to rights-holders? What other limits could be used in place of an absolute limit on the number of copies 
made?
    As an alternative, should the number of existing or permanent copies be limited to a specific number? Or, would it be sufficiently 
effective to instead tighten controls on access?
    Are there any compelling reasons to also revise the three-copy limit for analog materials?
    Additional Triggers under Subsection 108(c).(This topic will not be addressed at the March roundtable discussions.) To address the 
potential of loss before a replacement copy can be made, should subsection 108(c) be revised to permit the making of such copies prior 
to actual deterioration or loss? Specifically, should concepts such as ``unstable'' or ``fragile'' be added to the existing triggers-damaged, 
deteriorating, lost, stolen, or obsolete- to allow replacement copies to be made when it is known that the media is at risk of near-term 
loss? In other words, should libraries and archives be able to make ``pre-emptive'' replacement copies before deterioration occurs for 
particularly unstable digital materials-bearing in mind that a search must first be made for an unused copy? If so, how should such concepts 
be further refined or defined so as not to include all digital materials?
    Are there any analog materials that similarly are so fragile that 
they are at risk of becoming unusable and unreadable almost immediately-and where the ability to create stable replacement copies 
prior to loss would be equally important?
    What are the risks to rights-holders of expanding subsection 108(c) 
in this manner? How could those risks be minimized or addressed?
    Published versus Unpublished Works. (This topic will not be 
addressed at the March roundtable discussions.) Are there any 
compelling reasons to revisit section 108's separate treatment of 
unpublished and published works in subsections 108(b) and (c), 
respectively? Are there other areas where unpublished and published 
works should receive different treatment under section 108 than those 
currently specified in the statute? Are there any reasons to 
distinguish in section 108 between unpublished digital and unpublished 
analog works?
    Should section 108 take into account the right of first publication 
with respect to unpublished works? If so, why and in what manner? Would 
the right of first publication, for instance, dictate against allowing 
libraries and archives to ever permit online access to unpublished 
materials-even with the user restrictions described above?
    Should section 108 treat unpublished works intended for publication 
differently from other unpublished materials, and if so, how?
    Access to Digital Copies Made under Subsections 108(b) and (c). Are 
there conditions under which electronic access to digital preservation 
or replacement copies should be permitted under subsections 108 (b) or 
(c) outside the premises of libraries or archives (e.g., via e-mail or 
the Internet or lending of a CD or DVD)? If so, what conditions or 
restrictions should apply?
    Should any permitted off-site access be restricted to a library's 
or archives' ``user community''? How would this

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community be defined for the different types of libraries? To serve as 
an effective limit, should it represent an existing and well-defined 
group of users of the physical premises, rather than a potential user 
group (e.g., anyone who pays a member fee)? Should off-site electronic 
access only be available where a limited and well-defined user 
community can be shown to exist?
    Should restricting remote access to a limited number of 
simultaneous users be required for any off-site use? Would this provide 
an effective means of controlling off-site use of digital content so 
that the use parallels that of analog media? If a limit on simultaneous 
users is required for off-site access to unlicensed material, what 
should that number be? Should only one user be permitted at a time for 
each legally acquired copy? Do effective technologies exist to enforce 
such limits?
    Should the use of technological access controls by libraries and 
archives be required in connection with any off-site access to such 
materials? Do the relevant provisions of the TEACH Act (17 U.S.C. 
110(2)) provide a good model? Would it be effective to also require 
library and archive patrons desiring off-site access to sign or 
otherwise assent to user agreements prohibiting downloading, copying 
and downstream transmission?
    Should the rules be different depending on whether the replacement 
or preservation copy is a digital tangible copy or intangible 
electronic copy (e.g., a CD versus an MP3 file) or if the copies 
originally acquired by the library or archive were acquired in analog, 
tangible or intangible digital formats? What are the different concerns 
for each?

Topic 3: New Preservation-Only Exception

    Given the characteristics of digital media, are there compelling 
reasons to create a new exception that would permit a select group of 
qualifying libraries and archives to make copies of ``at risk'' 
published works in their collections solely for purposes of preserving 
those works, without having to meet the other requirements of 
subsection 108(c)? Does the inherent instability of all or some digital 
materials necessitate up-front preservation activities, prior to 
deterioration or loss of content? If so, should this be addressed 
through a new exception or an expansion of subsection 108(c)? How could 
one craft such an exception to protect against its abuse or misuse? How 
could rights-holders be assured that these ``preservation'' copies 
would not serve simply as additional copies available in the library or 
archives' collections? How could rights-holders be assured that the 
institutions making and maintaining the copies would maintain 
sufficient control over them?
    Should the exception only apply to a defined subset of copyrighted 
works, such as those that are ``at risk''? If so, how should ``at 
risk'' (or a similar concept) be defined? Should the exception be 
applicable only to digital materials? Are there circumstances where 
such an exception might also be justified for making digital 
preservation copies of ``at risk'' analog materials, such as fragile 
tape, that are at risk of near-term deterioration? If so, should the 
same or different conditions apply?
    Should the copies made under the exception be maintained in 
restricted archives and kept out of circulation unless or until another 
exception applies? Should eligible institutions be required to 
establish their ability and commitment to retain materials in 
restricted (or ``dark'') archives?
    Should only certain trusted preservation institutions be permitted 
to take advantage of such an exception? If so, how would it be 
determined whether any particular library or archives qualifies for the 
exception? Should eligibility be determined solely by adherence to 
certain statutory criteria? Or should eligibility be based on reference 
to an external set of best practices or a standards-setting or 
certification body? Should institutions be permitted to self-qualify or 
should there be some sort of accreditation, certification or audit 
process? If the latter, who would be responsible for determining 
eligibility? What are the existing models for third party qualification 
or certification? How would continuing compliance be monitored? How 
would those failing to continue to meet the qualifications be 
disqualified? What would happen to the preservation copies in the 
collections of an institution that has been disqualified? Further, 
should qualified institutions be authorized to make copies for other 
libraries or archives that can show they have met the conditions for 
making copies under subsections 108(c) or (h)?

Topic 4: New Website Preservation Exception

    Given the ephemeral nature of websites and their importance in 
documenting the historical record, should a special exception be 
created to permit the online capture and preservation by libraries and 
archives of certain website or other online content? If so, should such 
an exception be similar to section 108(f)(3), which permits libraries 
and archives to capture audiovisual news programming off the air? 
Should such an exception be limited to a defined class of sites or 
online content, such as non-commercial content/ sites (i.e., where the 
captured content is not itself an object of commerce), so that news and 
other media sites are excluded? Should the exception be limited to 
content that is made freely available for public viewing and/or 
downloading without access restrictions or user registration?
    Should there be an opt-out provision, whereby an objecting site 
owner or rights-holder could request that a particular site not be 
included? Should site owners or operators be notified ahead of the 
crawl that captures the site that the crawl will occur? Should ``no 
archive'' meta-tags, robot.txt files, or similar technologies that 
block sites or pages from being crawled be respected?
    Should the library or archive be permitted to also copy and retain 
a copy of a site's underlying software solely for purposes of 
preserving the site's original experience (provided no use is permitted 
other than to display/use the website)?
    If libraries and archives are permitted to capture online content, 
should there be any restrictions on public access? Should libraries and 
archives be allowed to make the copies thus captured and preserved 
available electronically, or only on the premises? If electronically 
available, under what conditions? Should the lapse of a certain period 
of time be required? Should labeling be required to make clear that 
captured pages or content are copies preserved by the library or 
archive and not from the actual site, in order to avoid confusion with 
the original site and any updated content?

4. Procedure for Submitting Requests to Participate in Roundtable 
Discussions and for Submitting Written Comments

    Requests to Participate in Roundtable Discussions. The roundtable 
discussions will be open to the public. However, persons wishing to 
participate in the discussions must submit a written request to the 
Section 108 Study Group. The request to participate must include the 
following information: (1) The name of the person desiring to 
participate; (2) the organization(s) represented by that person, if 
any; (3) contact information (address, telephone, telefax, and e-mail); 
and (4) a written summary of no more than four pages identifying, in 
order of preference, in which of the four general roundtable topic 
areas the participant (or his or her organization)

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would most like to participate and the specific questions the 
participant wishes to address for each general roundtable topic area.
    The written summary must also identify the preferred date/location 
(seeSupplementary Information, Section 2, ``Areas of Inquiry: Public 
Roundtables'' above for detail). Space and time constraints may require 
us to limit participation in one or more of the topic areas, and it is 
likely that not all requests to participate will be granted. 
Identification of the desired topic areas in order of preference will 
help the Study Group to ensure that participants will be heard in the 
area(s) of interest most critical to them. The Study Group will notify 
each participant in advance of his or her designated topic area(s), and 
the corresponding time(s) and location(s).
    Note also for those who wish to attend but not participate in the 
roundtables that space is limited. Seats will be available on a first- 
come, first-served basis. However, all discussions will be transcribed, 
and transcripts subsequently made available on the Section 108 Study 
Group Web site (http://www.loc.gov/section108).

    Written Comments. Written comments must include the following 
information: (1) The name of the person making the submission; (2) the 
organization(s) represented by that person, if any; (3) contact 
information (address, telephone, telefax, and e-mail); and (4) a 
statement of no more than 10 pages, responding to any of the general 
issues or specific questions in this notice.
    Submission of Both Requests to Participate in Roundtable 
Discussions and Written Comments. In the case of submitting a request 
to participate in the roundtable discussions or of submitting written 
comments, submission should be made to the Section 108 Study Group by 
e-mail (preferred) or by hand delivery by a commercial courier or by a 
private party to the appropriate address listed above. Submission by 
overnight delivery service or regular mail will not be effective due to 
delays in processing receipt.
    If by e-mail (preferred): Send to the e-mail address 
section108@loc.gov a message containing the information required above 

for the request to participate or the written submission, as 
applicable. The summary of issues (for the request to participate in 
the roundtable discussions) or statement (for the written comments), as 
applicable, may be included in the text of the message, or may be sent 
as an attachment. If sent as an attachment, the summary of issues or 
written statement must be in a single file in either: (1) Adobe 
Portable Document File (PDF) format; (2) Microsoft Word version 2000 or 
earlier; (3) WordPerfect version 9.0 or earlier; (4) Rich Text File 
(RTF) format; or (5) ASCII text file format.
    If by hand delivery by a private party or a commercial, non-
government courier or messenger: Deliver to the appropriate address 
listed above, a cover letter with the information required above, and 
include two copies of the summary of issues or written statement, as 
applicable, each on a write-protected 3.5-inch diskette or CD-ROM, 
labeled with the legal name of the person making the submission and, if 
applicable, his or her title and organization. The document itself must 
be in a single file in either (1) Adobe Portable Document File (PDF) 
format; (2) Microsoft Word Version 2000 or earlier; (3) WordPerfect 
Version 9 or earlier; (4) Rich Text File (RTF) format; or (5) ASCII 
text file format.
    Anyone who is unable to submit a comment in electronic form (either 
through electronic e-mail or hand delivery of a diskette or CD-ROM) 
should submit, with a cover letter containing the information required 
above, an original and three paper copies of the summary of issues (for 
the request to participate in the roundtable discussions) or statement 
(for the written comments) by hand to the appropriate address listed 
above.

Dated: February 9, 2006.
Marybeth Peters,
Register of Copyrights.