[Federal Register Volume 81, Number 109 (Tuesday, June 7, 2016)]
[Notices]
[Pages 36594-36599]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-13426]


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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.

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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\
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    \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).
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    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\
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    \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 . . 
.'').
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    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.
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    \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.
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    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\
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    \10\ 17 U.S.C. 108(a)(2).
    \11\ Id. at 108(a)(1).
    \12\ Id. at 108(a)(3).
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    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\
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    \13\ Id. at 108(b).
    \14\ Id. at 108(b)(2).
    \15\ Id. at 108(c).
    \16\ Id. at 108(c)(2).
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    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

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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\
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    \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.
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    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\
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    \22\ 17 U.S.C. 108(f)(1).
    \23\ Id. at 108(h).
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    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\
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    \24\ Id. at 108(f)(4).
    \25\ Id.
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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.
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    \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.
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    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:
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    \29\ Id. at iii.
    \30\ Id. at 95-112.
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     Allow museums to be eligible along with libraries and 
archives.\31\
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    \31\ Id. at 31-33.
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     Add new eligibility criteria, such as having a public 
service mission, employing a professional staff, and providing 
professional services.\32\
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    \32\ Id. at 34-38.
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     Allow libraries and archives to outsource some of the 
activities permitted by section 108 to third parties, under certain 
conditions.\33\
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    \33\ Id. at 39-42.
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     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\
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    \34\ Id. at 52-54, 61-65.
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     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\
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    \35\ Id. at 52, 57, 61, 66.
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     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\
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    \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.
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     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\
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    \37\ Id. at 80-87.
    \38\ Id. at 85-87.
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     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\
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    \39\ Id. at 91-92.
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    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:
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    \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.
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     The need to replace the single-copy limit with a 
``flexible standard more appropriate to the nature of digital 
materials.'' \41\
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    \41\ Id. at 98-101.
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     Explicitly permitting electronic delivery of copies for 
users under certain conditions.\42\
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    \42\ Id. at 98, 101-103.
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     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\
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    \43\ Id. at 106-112.
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    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\
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    \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).
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    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\
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    \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'').
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    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,
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    \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\
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    \52\ Id. at 20-21 (statement of Maria A. Pallante, Register of 
Copyrights and Director, U.S. Copyright Office) (citations omitted).
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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\
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    \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.
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    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\
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    \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.
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    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\
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    \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).
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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.
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    \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.'').
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    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\
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    \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).
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    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.
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    \65\ Study Group Report at 93-94.
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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