Section 108 Study Group Report Recommendations

The Section 108 Study Group is an independent group assembled by the Library of Congress and the US Copyright Office. They were charged to provide recommendations for updating Section 108 of the Copyright Act (§ 108. Limitations on exclusive rights: Reproduction by libraries and archives) specifically in light of new technologies. Ultimately, the findings are to be used to draft legislation for Congress. There were three categories for these findings: recommendations for legislative change, conclusions on other issues, and additional issues. The first section is the only one in which specific legislative solutions are proposed and it contains broad language that can be interpreted many ways.

The group was able to agree that

• Museums should be eligible institutions under section 108.
• The current minimum qualifying criteria should be retained AND libraries and archives should be required to meet additional eligibility criteria: they must have a public service mission, employ trained staff, provide the normal professional services, and possess a collection of lawfully acquired materials.
• A library or archives should be allowed to authorize outside contractors to perform some activities on its behalf as long as the contractor is only receiving compensation for the contracted work, does not retain copies other than is necessary to provide the contracted service, and the rights holder can obtain remedies for infringement by the contractor.
• No liability should be imposed on libraries when copyright infringement occurs through "unsupervised use of reproducing equipment located on its premises" including that which is owned by the user as long as there are copyright notices in public areas.

More ambiguous recommendations were made for preservation and replacement activities. The recommendations for preservation include a long list of qualifications to be met to determine which institutions are included in the exception and suggests limiting copies to those which are "reasonably necessary" in addition to "restricting access." There are recommendations to the "three-copy rule" which permits libraries to make up to three copies of a published work for replacement purposes. The groups suggests changing this to allow "a limited number of copies as reasonably necessary" to create and maintain "a single replacement copy" and attaches the condition that a "usable" replacement copy is not available at a "fair price" while suggesting that "there may be circumstances under which a licensed copy of a work qualifies as a copy obtainable at a fair price."

The group was unable to form substantive recommendations regarding copies for users, including interlibrary loan. Additional issues identified included virtual libraries and archives, display and performance of unlicensed digital works, licenses and contracts, technological protection measures, e-reserves, pre-1972 sound recordings, and remedies. Academic libraries were hopeful that they would have recommended exceptions and limitations for the use of copyrighted works as electronic course materials that are not specifically addressed by the Copyright Act.