The SCOOP: The Reformation of Section 108

Submitted by Christine Fruin, ATLA Scholarly Communication/Open Access Publishing Manager

The SCOOP, Scholarly COmmunication and Open Publishing, is a monthly column published by Christine Fruin, ATLA Scholarly Communication/Open Access Publishing Manager, to inform ATLA members of recent developments, new resources, or interesting stories from the realm of scholarly communication and open access publishing.

The Internet Archive (https://archive.org) has been a digital library innovator for more than 20 years, often pushing the boundaries of copyright law, including fair use, in the important effort of providing “universal access to all knowledge.” Last fall, the Internet Archive announced a new project that would take advantage of a rarely used subsection of the Copyright Act’s §108, which is the exception permitting reproduction by libraries and archives of copyrighted works for purposes such as preservation and providing personal copies to patrons.

Section 108 Subsection H Explained

Pursuant to the terms of §108(h), libraries and archives are permitted, during the last 20 years of a published work’s copyright term, to make a digital reproduction of a work and display or distribute it for preservation, scholarship, or research purposes provided that the work is not readily commercially available at a reasonable price. Accordingly, Internet Archive has digitized and released nearly 70 books they contend satisfy these requirements in what they are calling the “Sonny Bono Memorial Collection” – an homage to Sonny Bono whose name is attached to legislation passed in the 1990s extending the term of copyright protection and preventing many works from passing into the public domain.

The announcement of the project caught the attention of librarians everywhere, including theological librarians. The announcement also came just weeks after the release of the U.S. Copyright Office’s discussion document on revising §108. This, too, got the attention of librarians everywhere.

History of Revising Section 108

This is not the first time that revising §108 has been a topic of study and discussion. In 2005, the Copyright Office convened a large committee comprised of librarians, rightsholders, legal experts, and others to explore §108 through internal discussion and public forum and to make recommendations about its revision. The group released its report in 2008, which revealed little consensus on what changes were needed, and not much more was done with their recommendations or with §108 in the decade since.

Recommended Revisions

Now, in a lengthy discussion document, the Copyright Office recommends that Congress revisit and revise §108. Among the Copyright Office’s recommendations are the following:

  • Add museums to the scope of institutions covered by the statute
  • Replace the published/nonpublished distinction with publicly disseminated/not publicly disseminated
  • Abolish the three-copy limit with a reasonably necessary standard
  • Allow preservation copies of all types of works within a covered institution’s collection
  • Addition of a requirement that users of a copied work not be permitted to license use of the work
  • Allow covered institutions to contract with third parties to perform the reproductions permitted under the statute

No one knows whether or when Congress will turn its attention to §108 or any other areas of the Copyright Act. There is concern among library experts whether such reform should even be undertaken (see PDF). This is certainly an issue for libraries to monitor, and I will track any legislative changes or judicial interpretations that impact libraries and report on them here.

Recommended Further Reading

Photo Credit: C BY-SA 3.0 Nick Youngson / Alpha Stock Images

Scoop

Christine Fruin is the ATLA Scholarly Communication/Open Access Publishing Manager. As an attorney and a librarian, she has worked for over a decade promoting access to and use of diverse collections through utilization of fair use, open access, and responsible licensing.

 

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