81 FR 36594 - Section 108: Draft Revision of the Library and Archives Exceptions in U.S. Copyright Law
LIBRARY OF CONGRESS
Copyright Office Federal Register Volume 81, Issue 109 (June 7, 2016)
Copyright Office
Federal Register Volume 81, Issue 109 (June 7, 2016)
| Page Range | 36594-36599 | |
| FR Document | 2016-13426 |
[Federal Register Volume 81, Number 109 (Tuesday, June 7, 2016)] [Notices] [Pages 36594-36599] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2016-13426] ======================================================================= ----------------------------------------------------------------------- LIBRARY OF CONGRESS Copyright Office [Docket No. 2016-4] Section 108: Draft Revision of the Library and Archives Exceptions in U.S. Copyright Law AGENCY: U.S. Copyright Office, Library of Congress. ACTION: Notice of inquiry. ----------------------------------------------------------------------- SUMMARY: 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 Copyright 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 invites interested parties to schedule meetings in Washington, DC to take place during late June through July 2016, using the meeting request form referenced below. DATES: Written meeting requests must be received no later than 11:59 p.m. Eastern Time on July 7, 2016. ADDRESSES: Please fill out the meeting request form found at www.copyright.gov/policy/section108, being sure to indicate which topics you would like to discuss. Meetings will be held at the U.S. Copyright Office, 101 Independence Ave. SE. (Madison Building, Library of Congress), [[Page 36595]] Washington, DC 20540, or as necessary, by phone. FOR FURTHER INFORMATION CONTACT: Chris Weston, Attorney-Advisor, Office of the General Counsel, [email protected], 202-707-8380; Emily Lanza, Counsel, Office of Policy and International Affairs, [email protected], 202- 707-1027; or Aurelia J. Schultz, Counsel, Office of Policy and International Affairs, [email protected], 202-707-1027. SUPPLEMENTARY INFORMATION: I. Background 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.\1\ Before 1976, these institutions relied on a combination of common law and professional practices to help determine the scope of permissible activities under the law, including non-binding agreements between libraries and publishers.\2\ As libraries and archives increasingly employed photocopying in the 1950s and 1960s,\3\ however, Congress began to explore the need for clearer guidance for all involved. In 1966, the House Judiciary Committee noted that past efforts to come to a reasonable arrangement on library photocopying had failed and urged ``all concerned to resume their efforts to reach an accommodation under which the needs of scholarship and the rights of authors would both be respected.'' \4\ Several years later, the Senate Judiciary Committee also noted photocopying's role in the ``evolution in the functioning and services of libraries'' and the need for Congress to respond to these changes in technology with a statutory exception.\5\ --------------------------------------------------------------------------- \1\ See H.R. Rep. No. 94-1476, at 74-79 (1976), as reprinted in 1976 U.S.C.C.A.N. 5659, 5688-92. \2\ See Register of Copyrights, Library Reproduction of Copyrighted Works (17 U.S.C. 108) 14 (1983) (discussion of the ``Gentlemen's Agreement'' of 1935, a voluntary agreement negotiated between publishers and libraries that set a standard of acceptable conduct for reproduction of copyrighted materials by libraries). \3\ A 1959 copyright study prepared at the request of Congress noted that the ``various methods of photocopying have become indispensable to persons engaged in research and scholarship, and to libraries that provide research material in their collections to such persons.'' Borge Varmer, U.S. Copyright Office at the Library of Congress, Study No. 15: Photoduplication of Copyright Material by Libraries, at 49 (1959), reprinted in Staff of S. Comm. on the Judiciary, 86th Cong., Copyright Law Revision: Studies Prepared for the Subcomm. on Patents, Trademarks, and Copyrights of the Comm. on the Judiciary, United States Senate: Studies 14-16 (Comm. Print 1960). \4\ H.R. Rep. No. 89-2237, at 65 (1966). \5\ S. Rep. No. 93-983, at 123 (1974). --------------------------------------------------------------------------- Crafting an appropriate statutory exception for libraries and archives was part of a larger revision process undertaken and enacted by Congress as part of the 1976 Copyright Act. A key characteristic of section 108 is that it provides specific exceptions pertaining to frequent library and archives activities, such as preservation copying and making and distributing copies for users, but does not preclude these institutions from relying upon the more general fair use exception of section 107 as well. In fact, Congress enacted an express savings clause for fair use, thereby ensuring that courts could look to both provisions.\6\ --------------------------------------------------------------------------- \6\ 17 U.S.C. 108(f)(4) (``Nothing in this section . . . in any way affects the right of fair use as provided by section 107 . . .''). --------------------------------------------------------------------------- As demonstrated by its focus on photocopying, section 108 was designed to address the prevalent use of print-based analog technology occurring at the time of enactment. Despite some minor adjustments in the Digital Millennium Copyright Act of 1998,\7\ 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.\8\ Additionally, over time the structure and wording of section 108 have proven to be difficult to implement for both lawyer and layperson. Ultimately, section 108 ``embodies some now-outmoded assumptions about technology, behavior, professional practices, and business models'' \9\ that require revision and updating. --------------------------------------------------------------------------- \7\ Digital Millennium Copyright Act, Public Law 105-304, 404, 112 Stat. 2860, 2889 (1998) (expanding the number of copies and phonorecords permitted for purposes of preservation and security, for deposit for research use in another library or archives, and for replacement, from one to three; and restricting digital copies and phonorecords to the premises of the library or archives). \8\ Section 108 Study Group, The Section 108 Study Group Report i (2008), www.section108.gov/docs/Sec108StudyGroupReport.pdf (``Study Group Report''). \9\ Id. --------------------------------------------------------------------------- The key aspects of section 108 and the policy work conducted to date are summarized below. A. Overview of Section 108 Section 108 applies only to libraries and archives (terms that are not defined) that are either open to the general public or to unaffiliated researchers in the relevant specialized field.\10\ Activities covered by the section cannot be undertaken for ``any purpose of direct or indirect commercial advantage,'' \11\ and copies must contain the copyright notice as it appears on the source copy, or if there is no such notice, bear a legend stating that the work may be protected by copyright.\12\ --------------------------------------------------------------------------- \10\ 17 U.S.C. 108(a)(2). \11\ Id. at 108(a)(1). \12\ Id. at 108(a)(3). --------------------------------------------------------------------------- Section 108 includes two provisions for libraries and archives to make reproductions in order to maintain the works in their collections; these provisions apply to all categories of copyrighted works. The first such provision allows a library or archives to reproduce three copies of an unpublished work in its collections for purposes of preservation, security, or deposit for research in another eligible institution.\13\ Digital copies made under this provision cannot be made available to the public outside the premises of the library or archives.\14\ The second maintenance exception allows the reproduction of three copies of a published work for replacement purposes, but only if the source copy of the work is ``damaged, deteriorating, lost, or stolen'' or the copy is stored in an obsolete format, and the library or archives cannot locate an unused copy of the work at a fair price after a reasonable effort to do so.\15\ The replacement exception contains the same restriction prohibiting distribution of digital copies outside the premises of the library or archives.\16\ --------------------------------------------------------------------------- \13\ Id. at 108(b). \14\ Id. at 108(b)(2). \15\ Id. at 108(c). \16\ Id. at 108(c)(2). --------------------------------------------------------------------------- Section 108 also contains a set of provisions concerning the reproduction and distribution of materials in an eligible institution's collections for users, either upon direct request or as part of interlibrary loan. These exceptions do not apply to musical works; pictorial, graphic, or sculptural works (other than illustrations or similar adjuncts to literary works); and most audiovisual works, including motion pictures.\17\ Libraries and archives may reproduce and distribute for a user one copy of an article or contribution to a collection, or a small part of a larger work.\18\ They may also reproduce and distribute entire or substantial portions of works for users, but only if a reasonable investigation shows that a copy is not otherwise obtainable at a fair price.\19\ Additionally, section 108 states that, in making and distributing copies for users, a library or archives may not [[Page 36596]] engage in ``related or concerted reproduction or distribution of multiple copies'' of the same material,\20\ and that, when making interlibrary loan copies, an institution cannot ``do so in such aggregate quantities as to substitute for a subscription to or purchase of such a work.'' \21\ --------------------------------------------------------------------------- \17\ Id. at 108(i). \18\ Id. at 108(d). \19\ Id. at 108(e). \20\ Id. at 108(g)(1). \21\ Id. at 108(g)(2). Initial guidance as to the practical limits indicated by this phrase was provided by the National Commission on New Technological Uses of Copyrighted Works (CONTU), which in 1976 formulated guidelines for how many copies of a particular article or periodical could be made for interlibrary loan purposes without risking market substitution. H.R. Rep. No. 94-1733, at 72-73 (1976) (Conf. Rep.), as reprinted in 1976 U.S.C.C.A.N. 5809, 5813-14. Congress, while incorporating the CONTU guidelines into the Conference Committee Report to the Copyright Act of 1976, cautioned that they would require ``continuous reevaluation and adjustment.'' Id. at 71. --------------------------------------------------------------------------- In addition to its provisions governing internal maintenance copies and reproduction and distribution of copies for users, section 108 also provides libraries and archives with a safe harbor from liability for the unsupervised use of its on-premises reproducing equipment, provided that they post notices stating that making copies may be subject to copyright law.\22\ Another provision gives libraries and archives the ability to reproduce, distribute, display, or perform any work in its last 20 years of copyright protection for preservation, scholarship, or research, provided the work is not being commercially exploited by its owner.\23\ --------------------------------------------------------------------------- \22\ 17 U.S.C. 108(f)(1). \23\ Id. at 108(h). --------------------------------------------------------------------------- Finally, subsection (f)(4) of section 108 contains two provisions that govern the exceptions' overall applicability. It first states that nothing in section 108 ``in any way affects the right of fair use as provided by section 107.'' \24\ Subsection (f)(4) also provides that any contractual obligation assumed by a library or archives upon obtaining a work for its collections supersedes the institution's privileges under section 108.\25\ --------------------------------------------------------------------------- \24\ Id. at 108(f)(4). \25\ Id. --------------------------------------------------------------------------- B. Revision Work to Date As Congress has reviewed the copyright law in recent years, the Copyright Office has noted consistently that exceptions and limitations are critical to the digital economy and must be calibrated by Congress as carefully and deliberatively as provisions governing exclusive rights or enforcement. Section 108, in particular, has been a long- standing focus of the Copyright Office because, properly updated, it can provide professionals in libraries, archives, and museums with greater legal certainty regarding the permissibility of certain core activities. In 2005, the 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 study group members included distinguished and experienced librarians, copyright owners, archivists, academics, and other memory institution specialists and copyright lawyers.\26\ The ``Section 108 Study Group'' \27\ made note of a number of ways in which digital technologies have impacted copyright law, including ``(1) opportunities for new revenue sources derived from new distribution methods, (2) increased risks of lost revenue and control from unauthorized copying and distribution, (3) essential changes in the operations of libraries and archives, [and] (4) changing expectations of users and the uses made possible by new technologies.'' \28\ Over the course of nearly three years, the Study Group engaged in analysis, review, and discussion of the best ways in which to update section 108 to address the digital age. --------------------------------------------------------------------------- \26\ See Members of the Section 108 Study Group, http://www.section108.gov/members.html (last visited May 25, 2016). \27\ Referred to as the Study Group in this notice. \28\ Study Group Report at 28. --------------------------------------------------------------------------- The Study Group issued its report in March 2008, calling for an extensive revision to update section 108.\29\ The report also pointed out several areas where section 108 required amendment but where the members of the Study Group could not agree on a solution.\30\ The Study Group unanimously recommended revising section 108 in nine separate areas, plus a general recommendation for re-organizing the section's provisions. Among the more significant recommendations were to: --------------------------------------------------------------------------- \29\ Id. at iii. \30\ Id. at 95-112. ---------------------------------------------------------------------------Allow museums to be eligible along with libraries and archives.\31\ --------------------------------------------------------------------------- \31\ Id. at 31-33. --------------------------------------------------------------------------- Add new eligibility criteria, such as having a public service mission, employing a professional staff, and providing professional services.\32\ --------------------------------------------------------------------------- \32\ Id. at 34-38. --------------------------------------------------------------------------- Allow libraries and archives to outsource some of the activities permitted by section 108 to third parties, under certain conditions.\33\ --------------------------------------------------------------------------- \33\ Id. at 39-42. --------------------------------------------------------------------------- Replace the three-copy limits in the preservation, security, deposit for research, and replacement provisions with conceptual limits allowing a limited number of copies as reasonably necessary for the given purpose.\34\ --------------------------------------------------------------------------- \34\ Id. at 52-54, 61-65. --------------------------------------------------------------------------- Revise the prohibition on making digital preservation and replacement copies publicly available off-premises, so that it does not apply when the source and the new copy are in physical formats, such as CDs or DVDs.\35\ --------------------------------------------------------------------------- \35\ Id. at 52, 57, 61, 66. --------------------------------------------------------------------------- Allow specially qualified institutions to preemptively reproduce publicly disseminated works at special risk of loss for preservation purposes only, with limited access to the copies.\36\ --------------------------------------------------------------------------- \36\ Id. at 69-79. The Report also recommended replacing the published/unpublished distinction with the more practical publicly disseminated/not publicly disseminated binary, wherein works made available to the public, but not via distribution of material copies (as is required for publication), would fall into the publicly disseminated category. See id. at 47-51. --------------------------------------------------------------------------- Create a new provision for the capture, reproduction, and limited re-distribution of ``publicly available online content,'' e.g., Web sites and other works freely available on the internet.\37\ Rights- holders would be allowed to opt out of having their content captured or re-distributed.\38\ --------------------------------------------------------------------------- \37\ Id. at 80-87. \38\ Id. at 85-87. --------------------------------------------------------------------------- Apply the safe harbor from liability for copies made on unsupervised reproduction equipment to user-owned, portable equipment, as well as equipment residing on the library's or archives' premises.\39\ --------------------------------------------------------------------------- \39\ Id. at 91-92. --------------------------------------------------------------------------- The Study Group also made note of several areas of section 108 that all members agreed required revision, but could not come to a unanimous decision on what the revision should look like.\40\ The issues identified by the Study Group in this section of the Report concerned copies made at the request of users, specifically: --------------------------------------------------------------------------- \40\ Id. at 95-112. Additionally, a third section of the Report discussed issues that some, but not all, of the Study Group members thought merited statutory revision, including whether to allow certain exceptions to override contrary contractual agreements. Id. at 113-124. --------------------------------------------------------------------------- The need to replace the single-copy limit with a ``flexible standard more appropriate to the nature of digital materials.'' \41\ --------------------------------------------------------------------------- \41\ Id. at 98-101. --------------------------------------------------------------------------- Explicitly permitting electronic delivery of copies for users under certain conditions.\42\ --------------------------------------------------------------------------- \42\ Id. at 98, 101-103. --------------------------------------------------------------------------- Allowing copies for users to be made of musical works; pictorial, graphic, or sculptural works; and motion pictures and other audiovisual [[Page 36597]] works, under conditions that limit the risk of market substitution.\43\ --------------------------------------------------------------------------- \43\ Id. at 106-112. --------------------------------------------------------------------------- Following the issuance of the Study Group's report, the Copyright Office, led by the then-Register of Copyrights, comprehensively reviewed the underlying analyses of the Study Group and examined a number of questions left unresolved due to lack of consensus amongst disparate Study Group members. On April 5, 2012, the current Register and senior staff met with Study Group members to review the 2008 report and discuss subsequent developments. Most Study Group members agreed that updating section 108 remained a worthwhile goal, and some suggested that the Report did not go far enough, particularly in recommending changes to the provisions regarding copies for users. Additionally, several members described an increasing practice of librarians and archivists more frequently relying upon fair use as the legal basis for their activities, making section 108 more urgent or less urgent as a revision matter, depending on one's perspective. In February 2013, the Copyright Office co-sponsored with Columbia Law School a public conference on section 108, entitled ``Copyright Exceptions for Libraries in the Digital Age: Section 108 Reform.'' The all-day conference served as a valuable and comprehensive adjunct to the Study Group Report. Among other issues, it addressed such topics as the current landscape of similar exceptions in the United States and internationally, the recommendations of the Study Group, what changes should be made to section 108 in terms of its scope, and whether and how mass digitization by libraries and archives should be permitted.\44\ --------------------------------------------------------------------------- \44\ See Symposium Issue: Section 108 Reform, 36 Colum. J.L. & Arts 527 (2013); the program and videos of the program are available at Section 108 Reform, Kernochan Ctr. for Law, Media, and the Arts, http://web.law.columbia.edu/kernochan/symposia/section-108-reform (last visited May 10, 2016). --------------------------------------------------------------------------- More recently, section 108, along with the issues of orphan works and mass digitization, was the subject of a hearing on ``Preservation and Reuse of Copyrighted Works'' held by the House Subcommittee on Courts, Intellectual Property, and the Internet on April 2, 2014.\45\ At the hearing, there was disagreement among the six witnesses over whether or not section 108 reform is advisable as a legal matter or possible as a practical matter. One librarian-member of the Section 108 Study Group told Congress that the existing framework does not require amendment \46\ and anticipated great difficulty in translating the Study Group's (limited) recommendations into effective legislation.\47\ However, the co-chair of the Section 108 Study Group, the former general counsel to a book publisher, advocated for revisions, emphasizing the clarity that a ``workable, up-to-date and balanced'' section 108 could bring to both libraries and copyright owners ``in specific situations.'' \48\ Another witness, an audiovisual conservation expert at the Library of Congress, testified that it is important to ``[m]odernize Sec[tion] 108 so that the Library of Congress can fulfill its mission to preserve audiovisual and other materials,'' \49\ and recommended specific changes to the preservation, replacement, copies for users, and other provisions.\50\ --------------------------------------------------------------------------- \45\ Preservation and Reuse of Copyrighted Works: Hearing Before the Subcomm. on Courts, Intellectual Prop., & the Internet of the H. Comm. on the Judiciary, 113th Cong. (2014); the official transcript of the hearing is available at https://judiciary.house.gov/wp-content/uploads/2016/02/113-88-87423.pdf. \46\ Id. at 32 (testimony of James G. Neal, Vice President for Information Services and University Librarian, Columbia University) (``[T]he existing statutory framework, which combines the specific library exceptions in section 108 with the flexible fair use right, works well for libraries and does not require amendment.''). \47\ Id. at 42 (statement of James G. Neal, Vice President for Information Services and University Librarian, Columbia University) (noting, for example the difficulty of resolving issues as simple as ``. . . how museums should be defined, and the need to define libraries and archives, currently undefined in Section 108.''). \48\ Id. at 30 (statement of Richard S. Rudick, Co-Chair, Section 108 Study Group). \49\ Id. at 11 (statement of Gregory Lukow, Chief, Packard Campus for Audio Visual Conservation, Library of Congress). \50\ Id. at 15-18 (for example, ``[r]evise subsections 108(b) and (c), which govern the reproduction of unpublished and published works, to allow for the use of current technology and best practices in the preservation of film, video, and sound recordings''). --------------------------------------------------------------------------- Most recently, in her April 29, 2015, testimony to the House Judiciary Committee regarding the universe of copyright policy issues, the Register of Copyrights stated that section 108 is among the matters ready for Congressional consideration.\51\ ``Based on the entirety of the record to date,'' the Register explained, --------------------------------------------------------------------------- \51\ Register's Perspective on Copyright Review: Hearing Before the H. Comm. on the Judiciary, 114th Cong. 5 (2015) (testimony of Maria A. Pallante, Register of Copyrights and Director, U.S. Copyright Office) (``[L]ibrary exceptions or the exceptions for persons who are blind or visually impaired . . . are outdated to the point of being obsolete . . . [; these outdated exceptions] do not serve the public interest, and it is our view that it is untenable to leave them in their current state.''). the Office has concluded that Section 108 must be completely overhauled. One enduring complaint is that it is difficult to understand and needlessly convoluted in its organization. The Office agrees that the provisions should be comprehensive and should be related logically to one another, and we are currently preparing a discussion draft. This draft will also introduce several substantive changes, in part based upon the recommendations of the Study Group's 2008 report. It will address museums, preservation exceptions and the importance of ``web harvesting'' activities.\52\ --------------------------------------------------------------------------- \52\ Id. at 20-21 (statement of Maria A. Pallante, Register of Copyrights and Director, U.S. Copyright Office) (citations omitted). --------------------------------------------------------------------------- C. The International Perspective Many other countries have recognized the global significance of copying and preservation exceptions for libraries and archives and are also reviewing their relevant exceptions at this time. As of June 2015, 156 World Intellectual Property Organization (WIPO) member states had at least one statutory library exception, addressing issues such as making copies of works for readers, researchers, and other library users as well as copies for preservation.\53\ The most recent WIPO study on copyright limitations and exceptions for libraries and archives observed that ``exceptions for libraries and archives are fundamental to the structure of copyright law throughout the world, and that the exceptions play an important role in facilitating library services and serving the social objective of copyright law.'' \54\ --------------------------------------------------------------------------- \53\ Kenneth D. Crews, WIPO Study on Copyright Limitations and Exceptions for Libraries and Archives, WIPO Doc. SCCR/30/3, at 6 (June 10, 2015). \54\ Id. --------------------------------------------------------------------------- Some countries have also recently considered updating and amending their statutory library exceptions to address the digital landscape. For example, Canada in 2012 amended its copyright statute to permit libraries, archives, and museums to provide digital copies of certain works to persons requesting the copies through another institution.\55\ Similarly, the European Union has stated that in 2016 it would examine legislative proposals that would allow cultural heritage institutions to use digital technologies for preservation.\56\ --------------------------------------------------------------------------- \55\ Copyright Act, R.S.C. 1985, c C-42, ss. 5.02, 30.2 (Can.). \56\ European Commission Press Release MEMO/15/6262, Making EU copyright rules fit for the digital age -- Questions & Answers (Dec. 9, 2015), http://europa.eu/rapid/press-release_MEMO-15-6262_en.htm. --------------------------------------------------------------------------- For many years, WIPO has considered a treaty proposal on copyright limitations and exceptions for libraries and archives that would mandate a right of preservation for library and archival materials, enabling these institutions to reproduce for preservation purposes as [[Page 36598]] many copies of works that are needed in accordance with best professional practices.\57\ Advocating a more ``soft law'' approach, the United States government instead has encouraged member states to adopt national statutory library exceptions that are consistent with their current international obligations \58\ and that further the broad objectives of preservation and public service.\59\ --------------------------------------------------------------------------- \57\ See The Case for a Treaty on Exceptions and Limitations for Libraries and Archives: Background Paper by IFLA, ICA, EIFL and INNOVARTE, WIPO Doc. SCCR/23/3 (Nov. 15, 2011). \58\ Article 9(2) of the Berne Convention for the Protection of Literary and Artistic Works provides that signatory counties may permit the reproduction of works ``in certain special cases, provided that such reproduction does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author.'' Berne Convention for the Protection of Literary and Artistic Works, Sept. 9, 1886, as last revised July 24, 1971, 25 U.S.T. 1341, 828 U.N.T.S. 221. The WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty apply the same standard outlined in Article 9(2) of the Berne Convention for all rights granted under those treaties. WIPO Copyright Treaty art. 10(2), Dec. 20, 1996, S. Treaty Doc. No. 105- 17, 36 I.L.M. 65 (1997); WIPO Performances and Phonograms Treaty art. 16(2), Dec. 20, 1996, S. Treaty Doc. No. 105-17, 36 I.L.M. 76 (1997). \59\ Objectives and Principles for Exceptions and Limitations for Libraries and Archives, WIPO Doc. SCCR/26/8 (Jan. 10, 2014). --------------------------------------------------------------------------- II. Revision of Section 108--Current Discussion Draft Proposals The Copyright Office notes that, since the enactment of the Copyright Act of 1976, the views of the library and archives community regarding section 108 have become less uniform and more complicated, particularly as courts have supported newer applications of the fair use doctrine vis-[agrave]-vis a number of digitization and access activities. Indeed, fair use clearly supports a wider range of reproduction activities than it did when section 108 was first codified.\60\ The ever-evolving nature of the law is instructive and important. Among other things, it underscores the advisability of allowing section 108 and section 107 to co-exist, while ensuring that each provision is positioned for the future, free from the analog restrictions of a bygone era. --------------------------------------------------------------------------- \60\ See, e.g., Authors Guild v. Google, Inc., 804 F.3d 202 (2d Cir. 2015), cert. denied, 136 S.Ct. 1658 (mem.) (2016); Authors Guild, Inc. v. HathiTrust, 755 F.3d 87 (2d Cir. 2014); see also Library Copyright Alliance, Before the House Committee on the Judiciary: Recommendations of the Library Copyright Alliance on Copyright Reform 4 (May 8, 2015), http://www.librarycopyrightalliance.org/storage/documents/lca-copyright-reform-amendments.pdf (``[A]s the recent decision in Authors Guild v. HathiTrust . . . makes clear, fair use supplements Section 108 and thus provides a sufficient mechanism for updating it when necessary.''). --------------------------------------------------------------------------- As noted by the Study Group, updating section 108 would provide libraries and archives with a clear and unequivocal basis for their digital preservation, distribution, and other activities, notwithstanding that some of these activities may also be permissible under fair use.\61\ Congress specifically drafted section 108 to include a fair use savings clause in acknowledgement of the importance of fair use, noting in the 1976 Act's legislative history that ``[n]o provision of section 108 is intended to take away any rights existing under the fair use doctrine.'' \62\ Indeed, almost forty years later, the Chair of the House Judiciary Committee has recognized that a specific, and separate, library exception is still an important supplement to fair use because ``fair use is not always easy to determine, even to those with large legal budgets[, and t]hose with smaller legal budgets or a simple desire to focus their limited resources on preservation may prefer to have better statutory guidance than exists today.'' \63\ In fact, there is no reasonable question that the fair use doctrine should or will continue to be available to libraries and archives as an essential provision and planning tool, or that section 108 has proved valuable and should continue to set forth a list of excepted activities for the benefit of library professionals. If there is a lingering debate, it is more accurately about whether these excepted activities should be updated for the digital age or left in their increasingly irrelevant state, a question that is less about the importance of providing clear guidance to library, archives, and museum professionals and more about how sections 108 and 107 will operate together in the future.\64\ --------------------------------------------------------------------------- \61\ See Study Group Report at 21-22; see also 17 U.S.C. 108(f)(4); HathiTrust, 755 F.3d at 94 n.4 (``[W]e do not construe Sec. 108 as foreclosing our analysis of the libraries' activities under fair use.''). \62\ H.R. Rep. No. 94-1476, at 74 (1976), as reprinted in 1976 U.S.C.C.A.N. 5659, 5687-88; see also S. Rep. No. 91-1219, at 6 (1970) (``The rights given to the libraries and archives by this provision of the bill are in addition to those granted under the fair-use doctrine.''). Further, the court in HathiTrust expressly rejected plaintiffs' argument that fair use did not apply to the activities at issue in the case because section 108 alone governs reproduction of copyrighted works by libraries and archives, finding that because ``section 108 also includes a `savings clause' . . . . we do not construe Sec. 108 as foreclosing our analysis of the Libraries' activities under fair use . . .'' HathiTrust, 755 F.3d at 94 n.4. \63\ Preservation and Reuse of Copyrighted Works: Hearing Before the Subcomm. on Courts, Intellectual Prop., & the Internet of the H. Comm. on the Judiciary, 113th Cong. 6 (2014) (statement of Rep. Bob Goodlatte, Chairman, H. Comm. on the Judiciary). \64\ See, e.g., id. at 26 (testimony of Richard S. Rudick, Co- Chair, Section 108 Study Group) (noting that ``reliance on section 107 for purposes that go far beyond those originally conceived or imagined invites, as we have seen, expensive litigation with uncertain results.''); see also The Scope of Fair Use: Hearing Before the Subcomm. on Courts, Intellectual Prop., & the Internet of the H. Comm. on the Judiciary, 113th Cong. 7 (2014) (testimony of Peter Jaszi, Professor, Faculty Director, Glushko-Samuelson Intellectual Property Clinic, Washington College of Law, American University) (noting that specific exceptions like those found in section 108 can be highly valuable to particular groups of users even in static form because, ``even though never comprehensive and often not up to date,'' they are supplemented by fair use). --------------------------------------------------------------------------- As a matter of public policy, the Copyright Office agrees with the House Chairman and the Study Group and observes further that maintaining provisions drafted in, and applicable primarily to, the analog era is antithetical to the purpose of a well-functioning copyright law. More specifically, the Copyright Office agrees in principle with and plans to incorporate many of the Study Group's recommendations, including: Adding museums as eligible institutions. Expanding the preservation, security, and deposit for research exceptions to include published/publicly disseminated works. Creating a new exception to permit the reproduction and distribution of publicly available internet content for preservation and research purposes, with an opt-out provision. Allowing the outsourcing of certain section 108 activities to third-party contractors. Removing or revising the three-copy limitation for preservation and security, deposit for research, and replacement copies. Finally, as noted above, it is widely known that section 108 suffers from fundamental problems with organization and clarity, hampering the practical ability of librarians and archivists to utilize the exceptions. In fact, while the Study Group suggested reorganizing section 108 rather than re-drafting it,\65\ the Copyright Office believes that redrafting is the better approach. --------------------------------------------------------------------------- \65\ Study Group Report at 93-94. --------------------------------------------------------------------------- III. Subjects of Public Inquiry The Copyright Office invites interested parties to schedule a time to provide in-person input on the specific subjects below. Note that while the Copyright Office will provide a comprehensive recommendation to Congress, we are only revisiting a select number of discrete issues at this time. A party choosing to respond to this notice of inquiry need not plan to address every subject listed, but the Copyright Office requests that each responding party clearly identify each subject that it plans to discuss. [[Page 36599]] Eligibility 1. The attributes that an institution should possess in order to be eligible for the section 108 exceptions, and how to prescribe and/or regulate them. Rights Affected 2. Limiting section 108 to reproduction and distribution activities, or extending it to permit public performance and display as well. Copies for Preservation, Security, Deposit in Another Institution, and Replacement 3. Restricting the number of preservation and security copies of a given work, either with a specific numerical limit, as with the current three-copy rule, or with a conceptual limit, such as the amount reasonably necessary for each permitted purpose. 4. The level of public access that a receiving institution can provide with respect to copies of both publicly disseminated and non- publicly disseminated works deposited with it for research purposes. Copies for Users 5. Conditioning the unambiguous allowance of direct digital distribution of copies of portions of a work or entire works to requesting users, and whether any such conditions should be statutory or arrived at through a rulemaking process. Preservation of Internet Content 6. Conditioning the distribution and making available of publicly available internet content captured and reproduced by an eligible institution. Relation to Contractual Obligations 7. How privileging some of the section 108 exceptions over conflicting contractual terms would affect business relationships between rights-holders and libraries, archives, and museums. Outsourcing 8. What activities (e.g., digitization, preservation, interlibrary loan) to allow to be outsourced to third-party contractors, and the conditioning of this outsourcing. Other 9. Whether the conditions to any of the section 108 exceptions would be better as regulations that are the product of notice-and- comment rulemaking or as statutory text. 10. Whether and how the use of technical protection measures by eligible institutions should apply to section 108 activities. 11. Any pertinent issues not referenced above that the Copyright Office should consider in relation to revising section 108. Dated: June 2, 2016. Karyn A. Temple Claggett, Associate Register of Copyrights and Director of Policy and International Affairs, U.S. Copyright Office. [FR Doc. 2016-13426 Filed 6-6-16; 8:45 am] BILLING CODE 1410-30-P
![36594 Federal Register / Vol. 81, No. 109 / Tuesday, June 7, 2016 / Notices
numbers) or by email at DOL_PRA_ law, no person shall generally be subject Total Estimated Number of
PUBLIC@dol.gov. to penalty for failing to comply with a Responses: 10.
Submit comments about this request collection of information that does not Total Estimated Annual Time Burden:
by mail or courier to the Office of display a valid Control Number. See 5 13 hours.
Information and Regulatory Affairs, CFR 1320.5(a) and 1320.6. The DOL Total Estimated Annual Other Costs
Attn: OMB Desk Officer for DOL– obtains OMB approval for this Burden: $5.
MSHA, Office of Management and information collection under Control Authority: 44 U.S.C. 3507(a)(1)(D).
Budget, Room 10235, 725 17th Street Number 1245–0004.
NW., Washington, DC 20503; by Fax: Dated: June 1, 2016.
OMB authorization for an ICR cannot
202–395–5806 (this is not a toll-free be for more than three (3) years without Michel Smyth,
number); or by email: OIRA_ renewal, and the current approval for Departmental Clearance Officer.
submission@omb.eop.gov. Commenters this collection is scheduled to expire on [FR Doc. 2016–13306 Filed 6–6–16; 8:45 am]
are encouraged, but not required, to July 31, 2016. The DOL seeks to extend BILLING CODE 4510–CP–P
send a courtesy copy of any comments PRA authorization for this information
by mail or courier to the U.S. collection for three (3) more years,
Department of Labor-OASAM, Office of without any change to existing LIBRARY OF CONGRESS
the Chief Information Officer, Attn: requirements. The DOL notes that
Departmental Information Compliance existing information collection Copyright Office
Management Program, Room N1301, requirements submitted to the OMB
[Docket No. 2016–4]
200 Constitution Avenue NW., receive a month-to-month extension
Washington, DC 20210; or by email: while they undergo review. For Section 108: Draft Revision of the
DOL_PRA_PUBLIC@dol.gov. additional substantive information Library and Archives Exceptions in
FOR FURTHER INFORMATION CONTACT: about this ICR, see the related notice U.S. Copyright Law
Michel Smyth by telephone at 202–693– published in the Federal Register on
4129, TTY 202–693–8064, (these are not February 11, 2016 (81 FR 7375). AGENCY: U.S. Copyright Office, Library
toll-free numbers) or by email at DOL_ Interested parties are encouraged to of Congress.
PRA_PUBLIC@dol.gov. send comments to the OMB, Office of ACTION: Notice of inquiry.
SUPPLEMENTARY INFORMATION: This ICR Information and Regulatory Affairs at
seeks to extend PRA authority for the the address shown in the ADDRESSES SUMMARY: The United States Copyright
Notification of Employee Rights under section within thirty (30) days of Office is inviting interested parties to
Federal Labor Laws information publication of this notice in the Federal discuss potential revisions relating to
collection. President Barack Obama Register. In order to help ensure the library and archives exceptions in
signed Executive Order 13496 (E.O. appropriate consideration, comments the Copyright Act, 17 U.S.C. 108, in
13496) on January 30, 2009, requiring should mention OMB Control Number furtherance of the Copyright Office’s
certain Government contractors and 1245–0004. The OMB is particularly policy work in this area over the past
subcontractors to post notices informing interested in comments that: ten years and as part of the current
their employees of their rights as • Evaluate whether the proposed copyright review process in Congress.
employees under Federal labor laws. collection of information is necessary The Copyright Office has led and
Regulations 29 CFR 471.11 provides for for the proper performance of the participated in major discussions on
DOL to accept a written complaint functions of the agency, including potential changes to section 108 since
alleging that a contractor doing business whether the information will have 2005, with the goal of updating the
with the Federal government has failed practical utility; provisions to better reflect the facts,
to post the notice required by E.O. • Evaluate the accuracy of the practices, and principles of the digital
13496. The section establishes that no agency’s estimate of the burden of the age and to provide greater clarity for
special complaint form is required; proposed collection of information, libraries, archives, and museums. To
however, a complaint must be in including the validity of the finalize its legislative recommendation,
writing. In addition, the complaint must methodology and assumptions used; the Copyright Office seeks further input
contain certain information, including • Enhance the quality, utility, and from the public on several remaining
the name, address, and telephone clarity of the information to be issues, including, especially, provisions
number of the person submitting the collected; and concerning copies for users, security
complaint and the name and address of • Minimize the burden of the measures, public access, and third-party
the Federal contractor alleged to have collection of information on those who outsourcing. The Copyright Office
violated the rule. The section also are to respond, including through the therefore invites interested parties to
establishes that a written complaint may use of appropriate automated, schedule meetings in Washington, DC to
be submitted to either the Office of electronic, mechanical, or other take place during late June through July
Federal Contract Compliance Programs technological collection techniques or 2016, using the meeting request form
or the OLMS. E.O. 13496 section 3 other forms of information technology, referenced below.
authorizes this information collection. e.g., permitting electronic submission of DATES: Written meeting requests must
This information collection is subject responses. be received no later than 11:59 p.m.
to the PRA. A Federal agency generally Agency: DOL-OLMS. Eastern Time on July 7, 2016.
asabaliauskas on DSK3SPTVN1PROD with NOTICES
cannot conduct or sponsor a collection Title of Collection: Notification of ADDRESSES: Please fill out the meeting
of information, and the public is Employee Rights under Federal Labor request form found at
generally not required to respond to an Laws. www.copyright.gov/policy/section108,
information collection, unless it is OMB Control Number: 1245–0004. being sure to indicate which topics you
approved by the OMB under the PRA Affected Public: Individuals or would like to discuss. Meetings will be
and displays a currently valid OMB Households. held at the U.S. Copyright Office, 101
Control Number. In addition, Total Estimated Number of Independence Ave. SE. (Madison
notwithstanding any other provisions of Respondents: 10. Building, Library of Congress),
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engage in ‘‘related or concerted libraries, archives, and museums with research, and replacement provisions
reproduction or distribution of multiple greater legal certainty regarding the with conceptual limits allowing a
copies’’ of the same material,20 and that, permissibility of certain core activities. limited number of copies as reasonably
when making interlibrary loan copies, In 2005, the Copyright Office and the necessary for the given purpose.34
an institution cannot ‘‘do so in such National Digital Information • Revise the prohibition on making
aggregate quantities as to substitute for Infrastructure and Preservation Program digital preservation and replacement
a subscription to or purchase of such a of the Library of Congress sponsored copies publicly available off-premises,
work.’’ 21 and administered an independent study so that it does not apply when the
In addition to its provisions governing group charged with producing a report source and the new copy are in physical
internal maintenance copies and and set of recommendations on formats, such as CDs or DVDs.35
reproduction and distribution of copies potential improvements to section 108. • Allow specially qualified
for users, section 108 also provides The study group members included institutions to preemptively reproduce
libraries and archives with a safe harbor distinguished and experienced publicly disseminated works at special
from liability for the unsupervised use librarians, copyright owners, archivists, risk of loss for preservation purposes
of its on-premises reproducing academics, and other memory only, with limited access to the
equipment, provided that they post institution specialists and copyright copies.36
notices stating that making copies may lawyers.26 The ‘‘Section 108 Study • Create a new provision for the
be subject to copyright law.22 Another Group’’ 27 made note of a number of capture, reproduction, and limited re-
provision gives libraries and archives ways in which digital technologies have distribution of ‘‘publicly available
the ability to reproduce, distribute, impacted copyright law, including ‘‘(1) online content,’’ e.g., Web sites and
display, or perform any work in its last opportunities for new revenue sources other works freely available on the
20 years of copyright protection for derived from new distribution methods, internet.37 Rights-holders would be
preservation, scholarship, or research, (2) increased risks of lost revenue and allowed to opt out of having their
provided the work is not being control from unauthorized copying and content captured or re-distributed.38
commercially exploited by its owner.23 distribution, (3) essential changes in the • Apply the safe harbor from liability
Finally, subsection (f)(4) of section operations of libraries and archives, for copies made on unsupervised
108 contains two provisions that govern [and] (4) changing expectations of users reproduction equipment to user-owned,
the exceptions’ overall applicability. It and the uses made possible by new portable equipment, as well as
first states that nothing in section 108 technologies.’’ 28 Over the course of equipment residing on the library’s or
‘‘in any way affects the right of fair use nearly three years, the Study Group archives’ premises.39
as provided by section 107.’’ 24 engaged in analysis, review, and The Study Group also made note of
Subsection (f)(4) also provides that any discussion of the best ways in which to several areas of section 108 that all
contractual obligation assumed by a update section 108 to address the digital members agreed required revision, but
library or archives upon obtaining a age. could not come to a unanimous decision
work for its collections supersedes the The Study Group issued its report in on what the revision should look like.40
institution’s privileges under section March 2008, calling for an extensive The issues identified by the Study
108.25 revision to update section 108.29 The Group in this section of the Report
report also pointed out several areas concerned copies made at the request of
B. Revision Work to Date where section 108 required amendment users, specifically:
As Congress has reviewed the but where the members of the Study • The need to replace the single-copy
copyright law in recent years, the Group could not agree on a solution.30 limit with a ‘‘flexible standard more
Copyright Office has noted consistently The Study Group unanimously appropriate to the nature of digital
that exceptions and limitations are recommended revising section 108 in materials.’’ 41
critical to the digital economy and must nine separate areas, plus a general • Explicitly permitting electronic
be calibrated by Congress as carefully recommendation for re-organizing the delivery of copies for users under
and deliberatively as provisions section’s provisions. Among the more certain conditions.42
governing exclusive rights or significant recommendations were to: • Allowing copies for users to be
enforcement. Section 108, in particular, • Allow museums to be eligible along made of musical works; pictorial,
has been a long-standing focus of the with libraries and archives.31 graphic, or sculptural works; and
Copyright Office because, properly • Add new eligibility criteria, such as motion pictures and other audiovisual
updated, it can provide professionals in having a public service mission,
employing a professional staff, and 34 Id. at 52–54, 61–65.
35 Id. at 52, 57, 61, 66.
20 Id. at 108(g)(1). providing professional services.32
21 Id. at 108(g)(2). Initial guidance as to the • Allow libraries and archives to 36 Id. at 69–79. The Report also recommended
practical limits indicated by this phrase was replacing the published/unpublished distinction
outsource some of the activities with the more practical publicly disseminated/not
provided by the National Commission on New
Technological Uses of Copyrighted Works
permitted by section 108 to third publicly disseminated binary, wherein works made
(CONTU), which in 1976 formulated guidelines for parties, under certain conditions.33 available to the public, but not via distribution of
how many copies of a particular article or • Replace the three-copy limits in the material copies (as is required for publication),
periodical could be made for interlibrary loan would fall into the publicly disseminated category.
preservation, security, deposit for See id. at 47–51.
purposes without risking market substitution. H.R.
37 Id. at 80–87.
Rep. No. 94–1733, at 72–73 (1976) (Conf. Rep.), as
asabaliauskas on DSK3SPTVN1PROD with NOTICES
26 See Members of the Section 108 Study Group,
reprinted in 1976 U.S.C.C.A.N. 5809, 5813–14. 38 Id. at 85–87.
Congress, while incorporating the CONTU http://www.section108.gov/members.html (last 39 Id. at 91–92.
guidelines into the Conference Committee Report to visited May 25, 2016). 40 Id. at 95–112. Additionally, a third section of
27 Referred to as the Study Group in this notice.
the Copyright Act of 1976, cautioned that they the Report discussed issues that some, but not all,
28 Study Group Report at 28.
would require ‘‘continuous reevaluation and of the Study Group members thought merited
adjustment.’’ Id. at 71. 29 Id. at iii.
statutory revision, including whether to allow
22 17 U.S.C. 108(f)(1). 30 Id. at 95–112.
certain exceptions to override contrary contractual
23 Id. at 108(h). 31 Id. at 31–33. agreements. Id. at 113–124.
24 Id. at 108(f)(4). 32 Id. at 34–38. 41 Id. at 98–101.
25 Id. 33 Id. at 39–42. 42 Id. at 98, 101–103.
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works, under conditions that limit the over whether or not section 108 reform organization. The Office agrees that the
risk of market substitution.43 is advisable as a legal matter or possible provisions should be comprehensive and
Following the issuance of the Study as a practical matter. One librarian- should be related logically to one another,
Group’s report, the Copyright Office, led member of the Section 108 Study Group and we are currently preparing a discussion
draft. This draft will also introduce several
by the then-Register of Copyrights, told Congress that the existing substantive changes, in part based upon the
comprehensively reviewed the framework does not require recommendations of the Study Group’s 2008
underlying analyses of the Study Group amendment 46 and anticipated great report. It will address museums, preservation
and examined a number of questions difficulty in translating the Study exceptions and the importance of ‘‘web
left unresolved due to lack of consensus Group’s (limited) recommendations into harvesting’’ activities.52
amongst disparate Study Group effective legislation.47 However, the co-
chair of the Section 108 Study Group, C. The International Perspective
members. On April 5, 2012, the current
Register and senior staff met with Study the former general counsel to a book Many other countries have recognized
Group members to review the 2008 publisher, advocated for revisions, the global significance of copying and
report and discuss subsequent emphasizing the clarity that a preservation exceptions for libraries and
developments. Most Study Group ‘‘workable, up-to-date and balanced’’ archives and are also reviewing their
members agreed that updating section section 108 could bring to both libraries relevant exceptions at this time. As of
108 remained a worthwhile goal, and and copyright owners ‘‘in specific June 2015, 156 World Intellectual
some suggested that the Report did not situations.’’ 48 Another witness, an Property Organization (WIPO) member
go far enough, particularly in audiovisual conservation expert at the states had at least one statutory library
recommending changes to the Library of Congress, testified that it is exception, addressing issues such as
provisions regarding copies for users. important to ‘‘[m]odernize Sec[tion] 108 making copies of works for readers,
Additionally, several members so that the Library of Congress can researchers, and other library users as
described an increasing practice of fulfill its mission to preserve well as copies for preservation.53 The
librarians and archivists more audiovisual and other materials,’’ 49 and most recent WIPO study on copyright
frequently relying upon fair use as the recommended specific changes to the limitations and exceptions for libraries
legal basis for their activities, making preservation, replacement, copies for and archives observed that ‘‘exceptions
section 108 more urgent or less urgent users, and other provisions.50 for libraries and archives are
as a revision matter, depending on one’s Most recently, in her April 29, 2015, fundamental to the structure of
perspective. testimony to the House Judiciary copyright law throughout the world,
In February 2013, the Copyright Committee regarding the universe of and that the exceptions play an
Office co-sponsored with Columbia Law copyright policy issues, the Register of important role in facilitating library
School a public conference on section Copyrights stated that section 108 is services and serving the social objective
108, entitled ‘‘Copyright Exceptions for among the matters ready for of copyright law.’’ 54
Libraries in the Digital Age: Section 108 Congressional consideration.51 ‘‘Based Some countries have also recently
Reform.’’ The all-day conference served on the entirety of the record to date,’’ considered updating and amending
as a valuable and comprehensive the Register explained, their statutory library exceptions to
adjunct to the Study Group Report. the Office has concluded that Section 108 address the digital landscape. For
Among other issues, it addressed such must be completely overhauled. One example, Canada in 2012 amended its
topics as the current landscape of enduring complaint is that it is difficult to copyright statute to permit libraries,
similar exceptions in the United States understand and needlessly convoluted in its archives, and museums to provide
and internationally, the digital copies of certain works to
46 Id. at 32 (testimony of James G. Neal, Vice
recommendations of the Study Group, persons requesting the copies through
President for Information Services and University
what changes should be made to section Librarian, Columbia University) (‘‘[T]he existing another institution.55 Similarly, the
108 in terms of its scope, and whether statutory framework, which combines the specific European Union has stated that in 2016
and how mass digitization by libraries library exceptions in section 108 with the flexible it would examine legislative proposals
fair use right, works well for libraries and does not that would allow cultural heritage
and archives should be permitted.44 require amendment.’’).
More recently, section 108, along with 47 Id. at 42 (statement of James G. Neal, Vice institutions to use digital technologies
the issues of orphan works and mass President for Information Services and University for preservation.56
digitization, was the subject of a hearing Librarian, Columbia University) (noting, for For many years, WIPO has considered
example the difficulty of resolving issues as simple a treaty proposal on copyright
on ‘‘Preservation and Reuse of as ‘‘. . . how museums should be defined, and the
Copyrighted Works’’ held by the House need to define libraries and archives, currently
limitations and exceptions for libraries
Subcommittee on Courts, Intellectual undefined in Section 108.’’). and archives that would mandate a right
Property, and the Internet on April 2, 48 Id. at 30 (statement of Richard S. Rudick, Co- of preservation for library and archival
Chair, Section 108 Study Group). materials, enabling these institutions to
2014.45 At the hearing, there was 49 Id. at 11 (statement of Gregory Lukow, Chief,
disagreement among the six witnesses reproduce for preservation purposes as
Packard Campus for Audio Visual Conservation,
Library of Congress).
43 Id. 52 Id. at 20–21 (statement of Maria A. Pallante,
at 106–112. 50 Id. at 15–18 (for example, ‘‘[r]evise subsections
44 See Symposium Issue: Section 108 Reform, 36 108(b) and (c), which govern the reproduction of Register of Copyrights and Director, U.S. Copyright
Colum. J.L. & Arts 527 (2013); the program and unpublished and published works, to allow for the Office) (citations omitted).
53 Kenneth D. Crews, WIPO Study on Copyright
videos of the program are available at Section 108 use of current technology and best practices in the
Reform, Kernochan Ctr. for Law, Media, and the preservation of film, video, and sound recordings’’). Limitations and Exceptions for Libraries and
asabaliauskas on DSK3SPTVN1PROD with NOTICES
Arts, http://web.law.columbia.edu/kernochan/ 51 Register’s Perspective on Copyright Review: Archives, WIPO Doc. SCCR/30/3, at 6 (June 10,
symposia/section-108-reform (last visited May 10, Hearing Before the H. Comm. on the Judiciary, 2015).
54 Id.
2016). 114th Cong. 5 (2015) (testimony of Maria A.
45 Preservation and Reuse of Copyrighted Works: 55 Copyright Act, R.S.C. 1985, c C–42, ss. 5.02,
Pallante, Register of Copyrights and Director, U.S.
Hearing Before the Subcomm. on Courts, Copyright Office) (‘‘[L]ibrary exceptions or the 30.2 (Can.).
Intellectual Prop., & the Internet of the H. Comm. exceptions for persons who are blind or visually 56 European Commission Press Release MEMO/
on the Judiciary, 113th Cong. (2014); the official impaired . . . are outdated to the point of being 15/6262, Making EU copyright rules fit for the
transcript of the hearing is available at https:// obsolete . . . [; these outdated exceptions] do not digital age — Questions & Answers (Dec. 9, 2015),
judiciary.house.gov/wp-content/uploads/2016/02/ serve the public interest, and it is our view that it http://europa.eu/rapid/press-release_MEMO-15-
113-88-87423.pdf. is untenable to leave them in their current state.’’). 6262_en.htm.
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many copies of works that are needed in libraries and archives with a clear and As a matter of public policy, the
accordance with best professional unequivocal basis for their digital Copyright Office agrees with the House
practices.57 Advocating a more ‘‘soft preservation, distribution, and other Chairman and the Study Group and
law’’ approach, the United States activities, notwithstanding that some of observes further that maintaining
government instead has encouraged these activities may also be permissible provisions drafted in, and applicable
member states to adopt national under fair use.61 Congress specifically primarily to, the analog era is
statutory library exceptions that are drafted section 108 to include a fair use antithetical to the purpose of a well-
consistent with their current savings clause in acknowledgement of functioning copyright law. More
international obligations 58 and that the importance of fair use, noting in the specifically, the Copyright Office agrees
further the broad objectives of 1976 Act’s legislative history that ‘‘[n]o in principle with and plans to
preservation and public service.59 provision of section 108 is intended to incorporate many of the Study Group’s
take away any rights existing under the recommendations, including:
II. Revision of Section 108—Current
Discussion Draft Proposals
fair use doctrine.’’ 62 Indeed, almost • Adding museums as eligible
forty years later, the Chair of the House institutions.
The Copyright Office notes that, since Judiciary Committee has recognized that • Expanding the preservation,
the enactment of the Copyright Act of a specific, and separate, library security, and deposit for research
1976, the views of the library and exception is still an important exceptions to include published/
archives community regarding section supplement to fair use because ‘‘fair use publicly disseminated works.
108 have become less uniform and more is not always easy to determine, even to • Creating a new exception to permit
complicated, particularly as courts have those with large legal budgets[, and the reproduction and distribution of
supported newer applications of the fair t]hose with smaller legal budgets or a publicly available internet content for
use doctrine vis-à-vis a number of simple desire to focus their limited preservation and research purposes,
digitization and access activities. resources on preservation may prefer to with an opt-out provision.
Indeed, fair use clearly supports a wider have better statutory guidance than • Allowing the outsourcing of certain
range of reproduction activities than it exists today.’’ 63 In fact, there is no section 108 activities to third-party
did when section 108 was first reasonable question that the fair use contractors.
codified.60 The ever-evolving nature of doctrine should or will continue to be • Removing or revising the three-copy
the law is instructive and important. available to libraries and archives as an limitation for preservation and security,
Among other things, it underscores the essential provision and planning tool, or deposit for research, and replacement
advisability of allowing section 108 and that section 108 has proved valuable copies.
section 107 to co-exist, while ensuring and should continue to set forth a list Finally, as noted above, it is widely
that each provision is positioned for the of excepted activities for the benefit of known that section 108 suffers from
future, free from the analog restrictions library professionals. If there is a fundamental problems with
of a bygone era. lingering debate, it is more accurately organization and clarity, hampering the
As noted by the Study Group, about whether these excepted activities practical ability of librarians and
updating section 108 would provide should be updated for the digital age or archivists to utilize the exceptions. In
left in their increasingly irrelevant state, fact, while the Study Group suggested
57 See The Case for a Treaty on Exceptions and
Limitations for Libraries and Archives: Background a question that is less about the reorganizing section 108 rather than re-
Paper by IFLA, ICA, EIFL and INNOVARTE, WIPO importance of providing clear guidance drafting it,65 the Copyright Office
Doc. SCCR/23/3 (Nov. 15, 2011). to library, archives, and museum believes that redrafting is the better
58 Article 9(2) of the Berne Convention for the
professionals and more about how approach.
Protection of Literary and Artistic Works provides
that signatory counties may permit the reproduction sections 108 and 107 will operate III. Subjects of Public Inquiry
of works ‘‘in certain special cases, provided that together in the future.64
such reproduction does not conflict with a normal The Copyright Office invites
exploitation of the work and does not unreasonably 61 See Study Group Report at 21–22; see also 17 interested parties to schedule a time to
prejudice the legitimate interests of the author.’’ U.S.C. 108(f)(4); HathiTrust, 755 F.3d at 94 n.4 provide in-person input on the specific
Berne Convention for the Protection of Literary and (‘‘[W]e do not construe § 108 as foreclosing our
Artistic Works, Sept. 9, 1886, as last revised July 24, subjects below. Note that while the
analysis of the libraries’ activities under fair use.’’).
1971, 25 U.S.T. 1341, 828 U.N.T.S. 221. The WIPO 62 H.R. Rep. No. 94–1476, at 74 (1976), as
Copyright Office will provide a
Copyright Treaty and the WIPO Performances and comprehensive recommendation to
reprinted in 1976 U.S.C.C.A.N. 5659, 5687–88; see
Phonograms Treaty apply the same standard
outlined in Article 9(2) of the Berne Convention for also S. Rep. No. 91–1219, at 6 (1970) (‘‘The rights Congress, we are only revisiting a select
all rights granted under those treaties. WIPO given to the libraries and archives by this provision number of discrete issues at this time.
of the bill are in addition to those granted under
Copyright Treaty art. 10(2), Dec. 20, 1996, S. Treaty
the fair-use doctrine.’’). Further, the court in
A party choosing to respond to this
Doc. No. 105–17, 36 I.L.M. 65 (1997); WIPO notice of inquiry need not plan to
Performances and Phonograms Treaty art. 16(2), HathiTrust expressly rejected plaintiffs’ argument
Dec. 20, 1996, S. Treaty Doc. No. 105–17, 36 I.L.M. that fair use did not apply to the activities at issue address every subject listed, but the
76 (1997). in the case because section 108 alone governs Copyright Office requests that each
reproduction of copyrighted works by libraries and
59 Objectives and Principles for Exceptions and
archives, finding that because ‘‘section 108 also
responding party clearly identify each
Limitations for Libraries and Archives, WIPO Doc. subject that it plans to discuss.
SCCR/26/8 (Jan. 10, 2014). includes a ‘savings clause’ . . . . we do not construe
60 See, e.g., Authors Guild v. Google, Inc., 804 § 108 as foreclosing our analysis of the Libraries’
F.3d 202 (2d Cir. 2015), cert. denied, 136 S.Ct. 1658 activities under fair use . . .’’ HathiTrust, 755 F.3d uncertain results.’’); see also The Scope of Fair Use:
(mem.) (2016); Authors Guild, Inc. v. HathiTrust, at 94 n.4. Hearing Before the Subcomm. on Courts,
63 Preservation and Reuse of Copyrighted Works: Intellectual Prop., & the Internet of the H. Comm.
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755 F.3d 87 (2d Cir. 2014); see also Library
Copyright Alliance, Before the House Committee on Hearing Before the Subcomm. on Courts, on the Judiciary, 113th Cong. 7 (2014) (testimony
the Judiciary: Recommendations of the Library Intellectual Prop., & the Internet of the H. Comm. of Peter Jaszi, Professor, Faculty Director, Glushko-
Copyright Alliance on Copyright Reform 4 (May 8, on the Judiciary, 113th Cong. 6 (2014) (statement of Samuelson Intellectual Property Clinic, Washington
2015), http://www.librarycopyrightalliance.org/ Rep. Bob Goodlatte, Chairman, H. Comm. on the College of Law, American University) (noting that
storage/documents/lca-copyright-reform- Judiciary). specific exceptions like those found in section 108
amendments.pdf (‘‘[A]s the recent decision in 64 See, e.g., id. at 26 (testimony of Richard S. can be highly valuable to particular groups of users
Authors Guild v. HathiTrust . . . makes clear, fair Rudick, Co-Chair, Section 108 Study Group) (noting even in static form because, ‘‘even though never
use supplements Section 108 and thus provides a that ‘‘reliance on section 107 for purposes that go comprehensive and often not up to date,’’ they are
sufficient mechanism for updating it when far beyond those originally conceived or imagined supplemented by fair use).
necessary.’’). invites, as we have seen, expensive litigation with 65 Study Group Report at 93–94.
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Eligibility 11. Any pertinent issues not Objections submitted in response to
referenced above that the Copyright this notice will not be made available to
1. The attributes that an institution
Office should consider in relation to the public for inspection and, to the
should possess in order to be eligible for
revising section 108. extent permitted by law, will not be
the section 108 exceptions, and how to
Dated: June 2, 2016. released under the Freedom of
prescribe and/or regulate them.
Karyn A. Temple Claggett,
Information Act, 5 U.S.C. 552.
Rights Affected ADDRESSES: Objections relating to the
Associate Register of Copyrights and Director
2. Limiting section 108 to of Policy and International Affairs, U.S. prospective license may be submitted to
reproduction and distribution activities, Copyright Office. Patent Counsel, NASA Management
or extending it to permit public [FR Doc. 2016–13426 Filed 6–6–16; 8:45 am] Office, Jet Propulsion Laboratory, 4800
performance and display as well. BILLING CODE 1410–30–P
Oak Grove Drive, M/S 180–800C,
Pasadena, CA 91109, (818) 854–7770
Copies for Preservation, Security, (phone), 818–393–2607 (fax).
Deposit in Another Institution, and FOR FURTHER INFORMATION CONTACT:
Replacement NATIONAL AERONAUTUICS AND Mark Homer, Patent Counsel, NASA
3. Restricting the number of SPACE ADMINISTRATION Management Office, Jet Propulsion
preservation and security copies of a [Notice (16–039)]
Laboratory, 4800 Oak Grove Drive, M/S
given work, either with a specific 180–800C, Pasadena, CA 91109, (818)
numerical limit, as with the current Notice of Intent To Grant an Exclusive 854–7770 (phone), 818–393–2607 (fax).
three-copy rule, or with a conceptual License Information about other NASA
limit, such as the amount reasonably inventions available for licensing can be
necessary for each permitted purpose. AGENCY: National Aeronautics and found online at http://
4. The level of public access that a Space Administration. technology.nasa.gov.
receiving institution can provide with ACTION: Notice of intent to grant
Mark P. Dvorscak,
respect to copies of both publicly exclusive license.
Agency Counsel for Intellectual Property.
disseminated and non-publicly
disseminated works deposited with it SUMMARY: This notice is issued in [FR Doc. 2016–13429 Filed 6–6–16; 8:45 am]
for research purposes. accordance with 35 U.S.C. 209(e) and 37 BILLING CODE 7510–13–P
CFR 404.7(a)(l)(i). NASA hereby gives
Copies for Users notice of its intent to grant an exclusive
5. Conditioning the unambiguous license in the United States to practice NATIONAL ARCHIVES AND RECORDS
allowance of direct digital distribution the invention described and claimed in ADMINISTRATION
of copies of portions of a work or entire U.S. Non-Provisional Patent
works to requesting users, and whether Application, Serial No. 13/573920, Office of Government Information
any such conditions should be statutory titled ‘‘System and Method for Air Services (OGIS)
or arrived at through a rulemaking Launch from a Towed Aircraft,’’ NASA [NARA 2016–034]
process. Case No. DRC–012–011, and Provisional
Patent Application, Serial No. 15/ Freedom of Information Act Advisory
Preservation of Internet Content 046789, titled ‘‘System and Method for Committee
6. Conditioning the distribution and Air Launch from a Towed Aircraft’’
NASA Case No. DRC–012–011B and any AGENCY: National Archives and Records
making available of publicly available Administration.
internet content captured and issued patents or continuations in part
resulting therefrom, to Kelly Space & ACTION: Charter Renewal of the Freedom
reproduced by an eligible institution.
Technology Inc., having its principal of Information Act Advisory Committee.
Relation to Contractual Obligations place of business in San Bernardino, SUMMARY: The National Archives and
7. How privileging some of the section California. Certain patent rights in this Records Administration (NARA) is
108 exceptions over conflicting invention have been assigned to the renewing the charter for the Freedom of
contractual terms would affect business United States of America as represented Information Act (FOIA) Advisory
relationships between rights-holders by the Administrator of the National Committee, a Federal advisory
and libraries, archives, and museums. Aeronautics and Space Administration. committee we established to study the
The prospective exclusive license will current FOIA landscape across the
Outsourcing comply with the terms and conditions executive branch and to advise NARA’s
8. What activities (e.g., digitization, of 35 U.S.C. 209 and 37 CFR 404.7. Office of Government Information
preservation, interlibrary loan) to allow DATES: The prospective exclusive Services, the Government’s FOIA
to be outsourced to third-party license may be granted unless, within ombudsman, on improvements to the
contractors, and the conditioning of this fifteen (15) days from the date of this FOIA.
outsourcing. published notice, NASA receives
DATES: We filed the renewed charter on
written objections including evidence
Other May 20, 2016. It remains in effect for
and argument that establish that the
9. Whether the conditions to any of two years from that date, unless
grant of the license would not be
asabaliauskas on DSK3SPTVN1PROD with NOTICES
the section 108 exceptions would be otherwise extended.
consistent with the requirements of 35
better as regulations that are the product U.S.C. 209 and 37 CFR 404.7. ADDRESSES: You may access the charter
of notice-and-comment rulemaking or as Competing applications completed and and other information about the FOIA
statutory text. received by NASA within fifteen (15) Advisory Committee online at http://
10. Whether and how the use of days of the date of this published notice www.ogis.archives.gov/foia-advisory-
technical protection measures by will also be treated as objections to the committee.htm.
eligible institutions should apply to grant of the contemplated exclusive FOR FURTHER INFORMATION CONTACT: Kate
section 108 activities. license. Gastner by phone at 202–741–5770, by
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Document Created: 2018-02-08 07:31:18
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| Category | Regulatory Information | |
| Collection | Federal Register | |
| sudoc Class | AE 2.7: GS 4.107: AE 2.106: | |
| Publisher | Office of the Federal Register, National Archives and Records Administration | |
| Section | Notices | |
| Action | Notice of inquiry. | |
| Dates | Written meeting requests must be received no later than 11:59 p.m. Eastern Time on July 7, 2016. | |
| Contact | Chris Weston, Attorney-Advisor, Office of the General Counsel, [email protected], 202-707-8380; Emily Lanza, Counsel, Office of Policy and International Affairs, [email protected], 202- 707-1027; or Aurelia J. Schultz, Counsel, Office of Policy and International Affairs, [email protected], 202-707-1027. | |
| FR Citation | 81 FR 36594 |
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