[Federal Register: December 4, 2006 (Volume 71, Number 232)]
[Notices]
[Page 70434-70440]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr04de06-86]
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LIBRARY OF CONGRESS
Copyright Office
Docket No. 07-10802
Section 108 Study Group: Copyright Exceptions for Libraries and
Archives
AGENCY: Office of Strategic Initiatives and Copyright Office, Library
of Congress.
ACTION: Notice of a public roundtable with request for comments.
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SUMMARY: The Section 108 Study Group announces a public roundtable
discussion on certain issues relating to the exceptions and limitations
applicable to libraries and archives under the Copyright Act, and seeks
written comments on these issues. This notice (1) announces a public
roundtable discussion regarding the issues identified in this notice
and (2) requests written comments from all interested parties on the
issues described in this notice. These issues relate primarily to
making and distributing copies pursuant to requests by individual
users, as well as to provision of user access to unlicensed digital
works.
DATES: Roundtable Discussions: The public roundtable will be held in
Chicago, Illinois, on Wednesday, January 31, 2007, from 8:30 a.m. to 4
p.m. C.S.T. Requests to participate must be received by the Section 108
Study Group by 5 p.m. E.S.T. on January 12, 2007.
Written Comments: Interested parties may submit written comments on
any of the topics discussed in this notice from 8:30 a.m. E.S.T. on
February 1, 2007, to 5 p.m. E.S.T. on March 9, 2007.
ADDRESSES: All written comments and requests to participate in
roundtables should be addressed to Mary Rasenberger, Director of
Program Management, National Digital Information Infrastructure and
Preservation Program, Office of Strategic Initiatives, Library of
Congress. Comments and requests to participate may be sent (1) by
electronic mail (preferred) to the e-mail address section108@loc.gov,
or (2) by hand delivery by a private party or a commercial, non-
government courier or messenger, addressed to the Office of Strategic
Initiatives, Library of Congress, James Madison Memorial Building, Room
LM-637, 101 Independence Avenue S.E., Washington, DC 20540, between
8:30 a.m. and 5 p.m. E.S.T. If delivering by courier or messenger
please provide the delivery service with the Office of Strategic
Initiatives phone number: (202) 707-3300. (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 will be held at DePaul University College of
Law, Lewis Building, 10th Floor, Room 1001, 25 E. Jackson Boulevard,
Chicago, Illinois, 60604, on Wednesday, January 31, 2007.
FOR FURTHER INFORMATION CONTACT: Christopher Weston, Attorney-Advisor,
U.S. Copyright Office. E-mail cwes@loc.gov, Telephone (202) 707-2592,
Fax (202) 707-0815.
SUPPLEMENTARY INFORMATION:
1. Background.
The Section 108 Study Group was convened in April 2005 under the
sponsorship of the Library of Congress' National Digital Information
Infrastructure and Preservation Program (NDIIPP), in cooperation with
the U.S. Copyright Office. The Study Group seeks written comment on and
participation in a roundtable discussion scheduled for January 31,
2007, on the issues described in this notice. The Study Group is an
independent committee charged with examining how the exceptions and
limitations to the exclusive rights under copyright law that are
applicable specifically to libraries and archives, namely those set out
in section 108 of the Copyright Act, may need to be amended to take
account of the widespread use of digital technologies. More detailed
information regarding the Section 108 Study Group and its work can be
found at http://www.loc.gov/section108.
Section 108 was included in the 1976 Copyright Act in recognition
of the vital role of libraries and archives to our nation's education
and cultural heritage, and their unique needs in serving the public.
The exceptions were carefully crafted to maintain a balance between
[[Page 70435]]
the legitimate interests of libraries and archives on the one hand, and
rights-holders on the other, in a manner that best serves the national
interest.
The evolution of copyright law demonstrates that the technologies
available at any given time necessarily influence where and how
appropriate balances can be struck between the interests of rights-
holders and users. As the Copyright Office recognized in 1988, it is
important to review the section 108 exceptions periodically to ensure
that they take account of new technologies in maintaining a beneficial
balance among the interests of creators and other rights-holders and
libraries and archives. See The Register of Copyrights, Library
Reproduction of Copyrighted Works (17 U.S.C. 108): Second Report 128-29
(1988). In that spirit, the Section 108 Study Group is charged with the
task of identifying those areas in which new technologies have changed
the activities of libraries and archives, users, and rights-holders, so
that the effectiveness or relevance of applicable section 108
exceptions are called into question. The Study Group will attempt to
formulate appropriate, workable solutions where amendment is
recommended.
In March 2006, the Study Group held public roundtable discussions
in Los Angeles, California, and Washington, D.C., and requested written
comments on issues relating to general eligibility for the section 108
exceptions, as well as preservation and replacement copying.
Specifically, interested parties were asked to comment on (1) proposed
amendments to the preservation and replacement exceptions in
subsections 108(b) and (c), (2) a proposal to permit preservation
copies of published works in limited circumstances, (3) a proposal to
permit preservation copies of certain types of Internet content, and
(4) questions on what entities should be eligible to take advantage of
the section 108 exceptions. With regard to the latter, the Study Group
considered questions of whether to restrict section 108 eligibility to
nonprofit and government entities, whether to expressly include purely
virtual entities, and whether to include museums. The Study Group
anticipates that it will recommend that section 108 be amended to cover
museums as well as libraries and archives. Although museums are not
expressly addressed in this notice, the Study Group requests that you
consider the questions set forth below in light of their potential
effects on museums, as well as on libraries and archives. The written
comments and roundtable transcripts from March 2006 are available on
the Web site http://www.loc.gov/section108.
Recently, the Study Group examined the provisions of section 108
governing copies made by libraries and archives at the request of
users, including interlibrary loan copies, as well as whether any new
provisions relating to copies, performances or displays made in the
course of providing access are necessary. Specifically, the Study Group
seeks public input on whether any amendment is warranted to (1) the
subsection 108(d), (e) and (g) provisions addressing copies made for
users, including copies made under interlibrary loan arrangements; (2)
the exclusions currently set out in subsection 108(i) that prohibit
libraries and archives from taking advantage of subsections (d) and (e)
for most non-text-based works; and (3) allow libraries and archives to
make copies of unlicensed electronic works in order to provide user
access and to provide access via performance or display.
Note that any amendments to section 108 must conform to the United
States' international obligations under the Berne Convention to provide
exceptions to exclusive rights only ``in certain special cases'' that
do ``not conflict with the normal exploitation of the work'' and do not
``unreasonably prejudice the legitimate interests'' of the rights-
holder. The Berne Convention for the Protection of Literary and
Artistic Works, Sept. 9, 1886, art. 9(2), 25 U.S.T. 1341, 828 U.N.T.S.
221.
Nothing in this Federal Register notice is meant to reflect a
consensus or recommendation of the Study Group. Discussions are ongoing
in the areas of inquiry described below, and the input the Study Group
receives from the public through the roundtable, the written
submissions, and otherwise is intended to further those discussions.
Pursuant to 2 U.S.C. 136, the Study Group now seeks input, both
through written comment and participation in the public roundtable
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, which solutions might effectively address those concerns
without conflicting with the legitimate interests of other
stakeholders.
2. Areas of Inquiry.
Public Roundtable. Participants in the roundtable discussions will
be asked to respond to the specific questions set forth below in each
topic area in this Federal Register notice.
Written Comments. The Study Group also seeks written comment on the
topic areas and specific questions identified in this Federal Register
notice.
3. Specific Questions.
The Study Group seeks written comment and participation in the
roundtable discussions on the questions set forth below in this Section
3, inclusive of Topics A, B and C.
TOPIC A: AMENDMENTS TO CURRENT SUBSECTIONS 108(d), (e), AND (g)(2)
REGARDING COPIES FOR USERS, INCLUDING INTERLIBRARY LOAN
General Issue
Should the provisions relating to libraries and archives making and
distributing copies for users, including via interlibrary loan (which
include the current subsections 108(d), (e), and (g), as well as the
CONTU guidelines, to be explained below) be amended to reflect
reasonable changes in the way copies are made and used by libraries and
archives, taking into account the effect of these changes on rights-
holders?
Background
Subsections 108 (d) and (e) provide exceptions to the exclusive
rights of reproduction and distribution, permitting libraries and
archives to make single copies of copyrighted works for users.
Subsection (d) permits the copying of articles or portions of works,
and subsection (e) allows the copying of entire works in limited
circumstances.
Specifically, subsection (d) allows libraries and archives to
reproduce and distribute a single copy of ``no more than one article or
other contribution to a copyrighted collection or periodical issue, or
. . . a copy or phonorecord of a small part of any other copyrighted
work.'' 17 U.S.C. 108(d) (2003). Subsection (e) allows the reproduction
and distribution of an ``entire work, or . . . a substantial part of
it'' if the library or archives first determines, ``on the basis of a
reasonable investigation,'' that ``a copy or phonorecord of the work
cannot be obtained at a fair price.'' 17 U.S.C. 108(e). Additionally,
both subsections require that (1) the copy become the property of the
requesting user (so that libraries and archives cannot use these
exceptions as a means to enlarge their collections, see Melville B.
Nimmer & David Nimmer, Nimmer on Copyright Sec. 8.03[E][2][b] (2004)),
(2) the library or archives making the copy has no notice that the copy
will be used for any purpose other than ``private study, scholarship,
or research,'' 17 U.S.C. 108(d)(1) and (e)(1), and (3) the
[[Page 70436]]
library or archives displays prominently at the place where orders are
accepted a copyright warning in accordance with requirements provided
by the Register of Copyrights. This notice must also appear on the
order form. 17 U.S.C. 108(d)(2) and (e)(2). Subsections (d) and (e)
apply where a user makes a direct request of the library or archives
providing the copy, as well as where copies are provided by another
library or archives through interlibrary loan. Interlibrary loan is the
practice through which libraries request material from, or supply
material to, other libraries. Its purpose is to obtain, upon request of
a library user, material not available in the user's own library. Where
an entire work, such as a book, is sought, the library's copy of the
book itself is usually delivered to the requesting user's library,
called the borrowing library. There are cases, however, where it is
unsafe or impractical to ship the work, such as if the copy is
particularly fragile, rare, or unwieldy. In such cases, the fulfilling
library or archives may create and deliver a copy instead, provided a
copy cannot otherwise be obtained at a fair price and the other
conditions of subsection (e) are met. Where just a portion of the work
is sought, the library or archives may provide a copy under the
conditions set out in subsection (d).
The scope of subsections (d) and (e) is limited by subsection (g),
which states that the section 108 exceptions apply only to ``the
isolated and unrelated reproduction and distribution of a single copy
or phonorecord of the same material on separate occasions.'' 17 U.S.C.
108(g). Subsection (g)(1) further mandates that the provisions do not
apply where a library or archives, or its employee:
is aware or has substantial reason to believe that it is
engaging in the related or concerted reproduction or distribution of
multiple copies or phonorecords of the same material, whether made
on one occasion or over a period of time, and whether intended for
aggregate use by one or more individuals or for separate use by the
individual members of a group . . . .
17 U.S.C. 108(g)(1). In addition, interlibrary loan or other user
copies of articles or small portions of larger works under
subsection (d) are limited by subsection (g)(2). This subsection
states that section 108 does not permit the ``systematic
reproduction of single or multiple copies or phonorecords of
material described in subsection (d),'' and clarifies that copies
made for interlibrary loan purposes do not violate the prohibition
against systematic copying provided they ``do not have, as their
purpose or effect, that the library or archives receiving such
copies or phonorecords for distribution does so in such aggregate
quantities as to substitute for a subscription to or purchase of
such work.'' 17 U.S.C. 108(g)(2). This provision was included with
the intention of preventing certain practices from developing under
the rubric of ``interlibrary loan,'' such as systematic arrangements
among libraries to effectively divide up and share subscriptions or
purchases (such as where libraries X, Y, and Z all would like to
obtain journals A, B, and C, so they agree that library X will
purchase a subscription to journal A, library Y to journal B, and
library Z to journal C, and they will share each subscription with
each other through interlibrary loan). It was agreed in 1976 that
these types of consortial buying arrangements should not be
sanctioned by section 108 because by tipping the balance too far in
favor of the interests of libraries they would materially affect
sales.
Guidelines for interpreting the phrase ``such aggregate quantities
as to substitute for a subscription to or purchase of such work'' were
promulgated in 1976 by the National Commission on New Technological
Uses of Copyrighted Works (CONTU) at the request of Congress and
published in the Conference Report on the Copyright Act of 1976. The
CONTU guidelines are not law, but were endorsed by Congress as a
``reasonable interpretation'' of subsection (g)(2). H.R. Conf. Rep. No.
94-1733, at 72-74 (1976). The guidelines (available in full at http://www.copyright.
[fxsp0]gov/[fxsp0]circs/[fxsp0]circ21.[fxsp0]pdf) state
that a library may not receive in a single calendar year more than five
copies of an article or articles published in any given periodical
within five years prior to the date of the request. The guidelines do
not govern interlibrary loan copies of periodical materials published
more than five years prior to a request. In addition, the guidelines
provide that a library may not receive within a single calendar year
more than five copies of or from any given non-periodical work -- such
as fiction and poetry.
The CONTU guidelines also include certain administrative
requirements. All interlibrary loan reproduction requests must be
accompanied by a certification that the request conforms to the
guidelines, and libraries and archives that request copies must keep
records of all fulfilled interlibrary loan reproduction requests for at
least three full calendar years after the requests are made.
Subsection 108(i) further qualifies subsections (d) and (e) by
functionally limiting their application primarily to text-based works.
Subsection (i) states that copies for users may not be made from:
a musical work, a pictorial, graphic or sculptural work, or a
motion picture or other audiovisual work other than an audiovisual
work dealing with news, except that no such limitation shall apply
with respect to . . . pictorial or graphic works published as
illustrations, diagrams, or similar adjuncts to works of which
copies are reproduced or distributed in accordance with subsections
(d) and (e).
17 U.S.C. 108(i).\1\ For brevity's sake, this notice will refer to
those categories of works excluded from subsections (d) and (e) by
subsection (i) as ``non-text-based works,'' and those currently
covered by (d) and (e) as ``text-based.'' A further description of
subsection (i) and questions about whether and how it might be
amended are set forth in Topic B, below.
\1\Note that subsection(i) does not exclude pantomimes,
choreographic works, or sound recordings that do not incorporate
musical works from the subsection (d) and (e) exceptions.
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The current subsections (d) and (e) were enacted with the Copyright
Act of 1976, and, as such, were drafted with analog copying in mind,
namely photocopying. Nothing in the provisions expressly precludes
their application to digital technologies. However, digital copying
under subsections (d) and (e) is effectively barred by subsection
108(a)'s single-copy limit. Subsection (a) states that ``it is not an
infringement of copyright for a library or archives, or any of its
employees acting within the scope of their employment, to reproduce no
more than one copy or phonorecord of a work, except as provided in
subsections (b) and (c).'' 17 U.S.C. 108(a) (emphasis added). As a
practical and technical matter, producing a digital copy generally
requires the production of temporary and incidental copies, and
transmitting the copy via digital delivery systems such as e-mail
requires additional incidental copies. The Copyright Act does not
provide any express exception for such copies, although section 107
(which sets forth the fair use exceptions) might apply in some cases,
and licenses might be implied in others.
Libraries and archives maintain that their missions require them to
be able to make and/or provide digital copies to users ``both directly
and via interlibrary loan'' in order to respond to the fact that
research, scholarship, and private study are now conducted in a digital
environment. There is an increasing amount of so-called ``born-
digital'' material in the collections of libraries and archives, and
many users expect to receive materials electronically. There are also
increased efficiencies and decreased costs when digital technologies
are used. Overall, it is argued that it makes little sense in this day
and age to require libraries and archives to print analog copies of
requested materials and deliver them in person, by mail, or by fax. The
Study
[[Page 70437]]
Group's understanding is that, as a matter of practice, some libraries
and archives do in fact already engage in digital copying in making
copies for users under section 108, and necessarily make incidental
intermediate digital copies in doing so, but do not retain those copies
and often deliver a non-electronic version to the user.
It is important to distinguish between permitting libraries and
archives to make digital copies for users and permitting digital
delivery of those copies. Permitting the making of digital copies for
users would provide increased flexibility in how libraries and archives
can produce the copies. Those digital copies might be distributed in
any number of ways, for instance: (1) a photocopy could be made from an
analog source and then sent via fax or mail to the requesting library;
(2) a printout could be made from a digital source to create an analog
copy, which is then sent via fax or mail to the requesting library; (3)
a digital source file could be sent to the requesting library via e-
mail or posted on a Web site with a secure URL for access by the user;
or (4) a digital scan could be made from an analog source, which is
then sent electronically as in example number three. Electronic
delivery, as in examples three and four above, would provide increased
efficiency and would allow libraries and archives and their users to
take greater advantage of digital technologies to enable increased
access to those works unlikely to be found in local libraries.
Electronic delivery raises distinct issues from digital copying.
Just as digital technologies allow libraries and archives new
opportunities to serve the public, the same technologies allow
copyright owners to develop new business models and modes of
distribution. Rights-holders have remarked that giving libraries and
archives the ability to deliver copies to users electronically, unless
reasonably limited, potentially could cause significant harm to rights-
holders by undermining markets for digital works. Many rights-holders
are shifting toward new models of distribution and payment. For
instance, markets are emerging for the online purchase of articles or
small portions of text-based works. Theoretically, if a user can obtain
a copy online from any library through interlibrary loan, he or she
might be less likely to purchase a copy, even if purchases could be
made conveniently. An additional concern is that copies provided to
users electronically are susceptible to downloading by the user and to
downstream distribution via the Internet, potentially multiplying many
times over and displacing sales.
Rights-holders are also concerned about digital copies being made
available by libraries and archives under subsections (d) and (e) to
users outside their traditional user communities, without the mediation
of the user's own library. Online technologies allow libraries and
archives to serve anyone regardless of geographic distances or
membership in a community. Many of the section 108 exceptions were put
in place on the assumption that certain natural limitations, or
inherent inefficiencies in making photocopies, would prevent the
exceptions from unreasonably interfering with the market for the work.
For example, it was presumed that users had to go to their local
library to make an interlibrary loan request. The technological
possibility of direct digital delivery did not exist. But if it were to
become possible under the 108 exceptions, for instance, for any user
electronically to request free copies from any library from their
desks, that natural friction would break down, as would the balance
originally struck by the provisions. As such, the potential for lost
sales could increase from negligible to measurable against the bottom
line, and as such ``conflict with the normal exploitation of the
work.'' Berne Convention, art. 9(2).
One could, for instance, envision direct-to-user interlibrary loan
arrangements where a user could search for, request and receive a
reproduction of a copyrighted work online from any library without
having to go through the user's own library that would directly compete
with the rights-holders' markets. It is not clear to the Study Group
that the existing provisions of subsections (d) and (e) would prevent
libraries and archives from providing this type of universal on-demand
access if digital copying and delivery are permitted without further
qualification. While subsection (g) and the CONTU guidelines would
limit the ability to use subsections (d) and (e) for such interlibrary
loan practices for certain materials, they would not necessarily
eliminate it. The question then is how to craft rules around digital
copying and delivery to enable libraries and archives to service users
efficiently, without opening up the exception in a way that could
materially interfere with markets for copyrighted works just as
subsections (d) and (e) were limited in 1976 by subsection (g) in order
to avoid the potential for those exceptions to be used in a way that
would cause material market harm.
The primary issue for comment and discussion in Topic A is whether
and under what circumstances digital copying and distribution under
subsections (d) and (e) should be allowed. In responding to the
questions posed in Topic A, please note that the Study Group is seeking
responses regarding the application of subsections (d) and (e) as
currently limited by subsection (i) (i.e., principally restricted to
text-based materials). Questions about applying subsections (d) and (e)
to non-text-based works will be addressed in Topic B. Also note that
the Topic A questions address copies made for a library's or archives'
own users, as well as interlibrary loan copying.
Specific Questions
1. How can the copyright law better facilitate the ability of
libraries and archives to make copies for users in the digital
environment without unduly interfering with the interests of rights-
holders?
2. Should the single-copy restriction for copies made under
subsections (d) and (e) 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 library or archives to
provide the requesting patron with a single copy of the requested
work''? If so, should this amendment apply both to copies made for a
library's or archives' own users and to interlibrary loan copies?
3. How prevalent is library and archives use of subsection (d) for
direct copies for their own users? For interlibrary loan copies? How
would usage be affected if digital reproduction and/or delivery were
explicitly permitted?
4. How prevalent is library and archives use of subsection (e) for
direct copies for their own users? For interlibrary loan copies? How
would usage be affected if digital reproduction and/or delivery were
explicitly permitted?
5. If the single-copy restriction is replaced with a flexible
standard that allows digital copies for users, should restrictions be
placed on the making and distribution of these copies? If so, what
types of restrictions? For instance, should there be any conditions on
digital distribution that would prevent users from further copying or
distributing the materials for downstream use? Should user agreements
or any technological measures, such as copy controls, be required?
Should persistent identifiers on digital copies be required? How would
libraries and archives implement such requirements? Should such
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requirements apply both to direct copies for users and to interlibrary
loan copies?
6. Should digital copying for users be permitted only upon the
request of a member of the library's or archives' traditional or
defined user community, in order to deter online shopping for user
copies? If so, how should a user community be defined for these
purposes?
7. Should subsections (d) and (e) be amended to clarify that
interlibrary loan transactions of digital copies require the mediation
of a library or archives on both ends, and to not permit direct
electronic requests from, and/or delivery to, the user from another
library or archives?
8. In cases where no physical object is provided to the user, does
it make sense to retain the requirement that ``the copy or phonorecord
becomes the property of the user''? 17 U.S.C. 108(d)(1) and (e)(1). In
the digital context, would it be more appropriate to instead prohibit
libraries and archives from using digital copies of works copied under
subsections (d) and (e) to enlarge their collections or as source
copies for fulfilling future requests?
9. Because there is a growing market for articles and other
portions of copyrighted works, should a provision be added to
subsection (d), similar to that in subsection (e), requiring libraries
and archives to first determine on the basis of a reasonable
investigation that a copy of a requested item cannot be readily
obtained at a fair price before creating a copy of a portion of a work
in response to a patron's request? Does the requirement, whether as
applied to subsection (e) now or if applied to subsection (d), need to
be revised to clarify whether a copy of the work available for license
by the library or archives, but not for purchase, qualifies as one that
can be ``obtained''?
10. Should the Study Group be looking into recommendations for
revising the CONTU guidelines on interlibrary loan? Should there be
guidelines applicable to works older than five years? Should the record
keeping guideline apply to the borrowing as well as the lending library
in order to help administer a broader exception? Should additional
guidelines be developed to set limits on the number of copies of a work
or copies of the same portion of a work that can be made directly for
users, as the CONTU guidelines suggest for interlibrary loan copies?
Are these records currently accessible by people outside of the library
community? Should they be?
11. Should separate rules apply to international electronic
interlibrary loan transactions? If so, how should they differ?
TOPIC B: AMENDMENTS TO SUBSECTION 108(i)
General Issue
Should subsection 108(i) be amended to expand the application of
subsections (d) and (e) to any non-text-based works, or to any text-
based works that incorporate musical or audiovisual works?
Background
As noted in the background to Topic A above, subsection (i)
excludes most categories of non-text-based works from the exceptions
provided to libraries and archives under subsections (d) and (e).
Questions have been raised as to why this exclusion was written
into the law. The relevant House, Senate, and Conference Reports are
silent on the matter, beyond the House Report's emphasizing that
libraries and archives are free to avail themselves of the section 107
fair use factors in copying non-text-based materials for users. See
H.R. Rep. No. 94-1476, at 78 (1976). One likely reason for the
exclusion is that the principal copying device of concern in 1976, when
section 108 was enacted, was the photocopier. Most libraries and
archives did not possess the technology to make quality copies of non-
text-based works and so may not have pressed for the right to do so.
As more material is generated in digital media that blurs the lines
between traditional format types, subsection (i)'s exclusion of most
non-text-based categories of works is being called into question.
Increasingly, works are produced in multimedia formats, including some
traditionally text-based works, such as presentations, papers, and
journals. It has been argued that excluding these categories of works
from some accommodation under subsections (d) and (e) hampers scholarly
access to a critical and growing body of intellectual and creative
material. In addition, restrictions on copies for users of non-text-
based works are seen by some as placing a greater burden on
researchers, scholars, and students of music, film, and the visual arts
than on those who study text-based works, in that there are greater
obstacles to obtaining research materials.
Eliminating the subsection (i) exclusions would raise a number of
challenges, however. The subsection (d) and (e) exceptions were drafted
to address text-based works; there are legitimate questions as to
whether the provisions' respective conditions can be applied
successfully to non-text-based materials in a digital environment. For
instance, the current subsection (d) boundaries of ``an article or
other contribution to a copyrighted collection or periodical issue,''
17 U.S.C. 108(d), do not neatly apply to non-text-based works. In the
context of section 108, is one song on an album equivalent to an
article in a journal? Is one photograph an entire work by itself or
part of a larger copyrighted compilation? What if the song or
photograph is available individually? In addition, business models used
to market and distribute content may be affected differently depending
on the media. Given evolving online entertainment business models, the
ability to make and/or distribute digital copies could have different
effects on markets for recorded sound and film, for instance, than on
markets for text-based materials. Each of the issues raised previously
in Topic A should be reconsidered in light of non-text-based media, as
it is possible that views may change depending on the media.
Specific Questions
1. Should any or all of the subsection (i) exclusions of certain
categories of works from the application of the subsection (d) and (e)
exceptions be eliminated? What are the concerns presented by modifying
the subsection (i) exclusions, and how should they be addressed?
2. Would the ability of libraries and archives to make and/or
distribute digital copies have additional or different effects on
markets for non-text-based works than for text-based works? If so,
should conditions be added to address these differences? For example:
Should digital copies of visual works be limited to diminished
resolution thumbnails, as opposed to a ``small portion'' of the work?
Should persistent identifiers be required to identify the copy of a
visual work and any progeny as one made by a library or archives under
section 108, and stating that no further distribution is authorized?
Should subsection (d) and (e) user copies of audiovisual works and
sound recordings, if delivered electronically, be restricted to
delivery by streaming in order to prevent downloading and further
distribution? If so, how might scholarly practices requiring the
retention of source materials be accommodated?
3. If the exclusions in subsection (i) were eliminated in whole or
in part, should there be different restrictions on making direct copies
for users of non-text-based works than on making interlibrary loan
copies? Would applying the interlibrary loan framework to non-text-
based works
[[Page 70439]]
require any adjustments to the CONTU guidelines?
4. If the subsection (i) exclusions were not eliminated, should an
additional exception be added to permit the application of subsections
(d) and (e) to musical or audiovisual works embedded in textual works?
Would doing so address the needs of scholars, researchers, and students
for increased access to copies of such works?
TOPIC C: LIMITATIONS ON ACCESS TO ELECTRONIC COPIES, INCLUDING VIA
PERFORMANCE OR DISPLAY
General Issue
Should section 108 be amended to permit libraries and archives to
make temporary and incidental copies of unlicensed digital works in
order to provide user access to these works? Should any exceptions be
added to the copyright law to permit limited public performance and
display in certain circumstances in order to allow for user access to
unlicensed digital works?
Background
Access to digital materials particularly those that exist in purely
electronic form is generally granted pursuant to a license. There are,
however, instances in which libraries and archives have lawfully
obtained copies of electronic materials for which they have no license,
and it is expected that this may increasingly be the case. Examples
include donated personal or business files such as e-mails or other
documents (where the donor agreement is silent on use rights),
electronic manuscripts such as drafts of novels or notes, and legally
captured Web sites. The mediation of a computer or other machine is
necessary to perceive these works, and in the course of rendering the
works in perceivable form, temporary and incidental copies are made.
Libraries and archives have no clear guidance on whether they may make
the copies incidental or otherwise required to perceive digital works.
In some cases, a license to make temporary, incidental copies of
unlicensed digital works can be implied. For instance, it is commonly
accepted that there are implied rights to make the incidental copies
necessary to play a DVD or CD on a computer. The question is what, if
any, implied rights exist for libraries and archives to facilitate
access to other kinds of materials? What about works acquired in purely
electronic form that are stored on a library's or archives' servers
from which they must be copied and transmitted to a terminal for user
access? In addition, display and/or performance as well as reproduction
rights may be implicated in accessing these works.
The Study Group seeks input on how significant an issue this is
whether libraries and archives have and are likely in the future to
have a sufficient number of unlicensed digital works to merit
legislative attention.
The European Union's Directive on the Harmonization of Certain
Aspects of Copyright and Related Rights in the Information Society
provides one potential model for addressing these questions. It directs
that member states may enact copyright exceptions permitting publicly
accessible libraries, museums, educational institutions, and archives
to communicate or make available ``for the purpose of research or
private study, to individual members of the public by dedicated
terminals on the[ir] premises . . . works and other subject-matter not
subject to purchase or licensing terms which are contained in their
collections.'' Council Directive 2001/29/EC, art. 5(3)(n), 2001 O.J. (L
167) 10, 17. Would a similar exception be appropriate in the U.S?
Certain digital works can be accessed only through display or
performance. In providing access to these works, libraries and archives
that are open to the public (as they must be to qualify under
subsection 108(a)) may need to publicly display or perform the works.
For instance, if a library, archives, or museum publicly exhibits a
work of audiovisual art, a motion picture, or a musical work, the
exhibition would normally constitute a public performance. There are
currently no express exceptions in section 108 that address public
performance or display. Section 109(c) of the Copyright Act provides an
applicable exception to the display right:
[T]he owner of a particular copy lawfully made under this title,
or any person authorized by such owner, is entitled, without the
authority of the copyright owners, to display that copy publicly,
either directly or by the projection of no more than one image at a
time, to viewers present at the place where the copy is located.
17 U.S.C. 109(c) (2003). This provision gives libraries and archives
some leeway in displaying copies that they own, but it does not address
the issues of any incidental copies that may be necessary in order to
achieve this display. There is no parallel exception in the Copyright
Act for public performances.
Note that for purposes of this discussion it is assumed that where
the work was acquired through a license, the terms of the license
govern and trump the section 108 exceptions, per subsection 108(f)(4).
Specific Questions
1. What types of unlicensed digital materials are libraries and
archives acquiring now, or are likely to acquire in the foreseeable
future? How will these materials be acquired? Is the quantity of
unlicensed digital material that libraries and archives are likely to
acquire significant enough to warrant express exceptions for making
temporary copies incidental to access?
2. What uses should a library or archives be able to make of a
lawfully acquired, unlicensed digital copy of a work? Is the EU model a
good one namely that access be limited to dedicated terminals on the
premises of the library or archives to one user at a time for each copy
lawfully acquired? Or could security be ensured through other measures,
such as technological protections? Should simultaneous use by more than
one user ever be permitted? Should remote access ever be permitted for
unlicensed digital works? If so, under what conditions?
3. Are there implied licenses to use and provide access to these
types of works? If so, what are the parameters of such implied licenses
for users? What about for library and archives staff?
4. Do libraries and archives currently rely on implied licenses to
access unlicensed content or do they rely instead on fair use? Is it
current library and archives practice to attempt to provide access to
unlicensed digital works in a way that mirrors the type of access
provided to similar analog works?
5. Are the considerations different for digital works embedded in
tangible media, such as DVDs or CDs, than for those acquired in purely
electronic form? Under which circumstances should libraries and
archives be permitted to make server copies in order to provide access?
Should the law permit back-up copies to be made?
6. Should conditions on providing access to unlicensed digital
works be implemented differently based upon the category or media of
work (text, audio, film, photographs, etc.)?
7. Are public performance and/or display rights necessarily
exercised in providing access to certain unlicensed digital materials?
For what types of works? Does the copyright law need to be amended to
address the need to make incidental copies in order to display an
electronic work? Should an exception be added for libraries and
archives to also perform unlicensed electronic works in certain
circumstances, similar to the 109(c) exception for display? If so,
under what conditions?
[[Page 70440]]
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. 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 three general roundtable topic areas the
participant (or his or her organization) would most like to participate
and the specific questions the participant wishes to address in each
topic area.
Space and time constraints may require that participation be
limited in one or more of the topic areas, and it is likely that not
all requests to participate can be accommodated. 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).
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. 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 topic
areas 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 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 discussion) 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 address listed above a
cover letter with the information required, 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 or request to participate
in electronic form (either through 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: November 28, 2006
Marybeth Peters,
Register of Copyrights.
[FR Doc. E6-20480 Filed 12-1-06; 8:45 am]
BILLING CODE 1410-21-F