On September 15, 2017, the US Copyright Office released a “discussion document” detailing its suggestions for how Congress should update 17 USC 108, the section that grants a number of exceptions to copyright for libraries. And interestingly, there’s a lot of great news, here. While this document is just the first step toward copyright reform for memory institutions, it’s a good one.
This document is the result of over a decade of conversations, studies, and consideration about how best to revise section 108 in a way that balances the interests of the many stakeholders involved while addressing the way in which memory institutions work today in light of modern technology.
The result of these many conversations suggests updates to nearly every part of section 108. In the words of the Copyright Office: “The current section 108 language is insufficient to address digital works and digital transmissions, does not reflect the way that libraries and archives actually operate, and excludes museum, among other constraints.
Though a full analysis of the revisions proposed in this discussion document is outside of the scope of this blog, I want to highlight three particularly interesting parts.
First, the document proposes a fundamental reorganization of section 108 to make it easier to understand and use. Laws, regulations, judicial decisions, and other legal documents are all too often esoteric and nearly impossible for anyone but attorneys to decipher. So, this proposal is a welcome surprise, and hopefully would make section 108 much more user-friendly.
Second, the Copyright Office suggests adding museums to the scope of 108. Currently, section 108 only mentions libraries and archives in its text. As such, other types of similar institutions are unable to take advantage of 108’s exceptions. So right now, museums that are associated with libraries and archives can use these exceptions, but smaller museums cannot. This amendment would change this, adding museums to the list of institutions covered by 108’s protections.
Third, the document suggests a number of amendments to copyright law to bring it up to speed with the realities of digital copying. For instance, currently libraries and archives can make up to three copies of unpublished works for preservation. Not only does the discussion document suggest changing “publication” to “dissemination to the public” because of how the internet has blurred the definition of “publication.” It also allows libraries to make copies as “reasonably necessary” instead of limiting the number to three, recognizing that this arbitrary limit doesn’t make sense with the nature of digital copying.
Altogether, this discussion document is a very interesting start toward reforming 108, and maybe even points toward a conversation about a broader update of copyright law. Though we have no idea if/when Congress will do anything — certainly the Copyright Office has offered legislative suggestions that Congress has ignored several times in the past — it’s still refreshing to see that the agency is consciously aware of the limitations of copyright law due to its age and that libraries, users, and rightsholders are all being hurt because of the outdated laws. So we’ll keep our eyes open to see what happens.
Meanwhile, if you would like to read all 72 pages of the discussion document, you can find it here. If nothing else, it’s worth your time to check out the short and easy to understand summary at the beginning.