Revising Section 108: Copyright Exceptions for Libraries and Archives

The United States Copyright Office is inviting interested parties to discuss potential revisions relating to the library and archives exceptions in the Copyright Act, 17 U.S.C. § 108, in furtherance of the Office’s policy work in this area over the past ten years and as part of the current copyright review process in Congress. The Copyright Office has led and participated in major discussions on potential changes to section 108 since 2005, with the goal of updating the provisions to better reflect the facts, practices, and principles of the digital age and to provide greater clarity for libraries, archives, and museums. To finalize its legislative recommendation, the Copyright Office seeks further input from the public on several remaining issues, including, especially, provisions concerning copies for users, security measures, public access, and third-party outsourcing. The Copyright Office therefore has invited interested parties to schedule meetings in Washington, D.C. to take place during late June through July, 2016.

Congress enacted section 108 of title 17 in 1976, authorizing libraries and archives to reproduce and distribute certain copyrighted works on a limited basis for the purposes of preservation, replacement, and research, placing these excepted activities outside the scope of exclusive rights set forth in section 106. This exception, however, was drafted and enacted in the analog age (1976). Despite some minor adjustments in the Digital Millennium Copyright Act of 1998, which partially took account of digital reproduction capabilities, the exceptions in section 108 therefore are stuck in time. They did not anticipate and no longer address the ways in which copyrighted works are created, distributed, preserved, and accessed in the twenty-first century.

In 2005, the U.S. Copyright Office and the National Digital Information Infrastructure and Preservation Program of the Library of Congress sponsored and administered an independent study group charged with producing a report and set of recommendations on potential improvements to section 108. The Section 108 Study Group issued its report in March 2008, calling for an extensive revision of section 108 in order to bring it up to date with the digital age. This Report was followed by a 2012 meeting of members of the Study Group with the Register of Copyrights at the time, to discuss developments since the Report was published. In February of 2013, the Copyright Office co-sponsored with Columbia University Law School a public conference on section 108, addressing many topics related to exceptions for libraries and archives in the digital age. Most recently, the Register of Copyrights discussed the need to revise section 108 and announced the preparation of a discussion draft in her April 29, 2015 testimony to the House Judiciary Committee.