On July 6, 2016, AALL met by phone with the Copyright Office to discuss proposed revisions to Section 108, the "library exception" to the Copyright Act. The meeting was in response to the Copyright Office's June Notice of Inquiry, which invited stakeholders to meet with the Copyright Office to discuss specific questions related to possible updates to Section 108. The Copyright Office is preparing a draft update to Section 108 to submit to Congress, as indicated in its 2011 Priorities and Special Projects report. The NOI is the latest step in a multi-year effort to update Section 108 that began with the convening of the Section 108 Study Group in 2005.
Participating in the meeting for AALL were Kelly Leong, then chair of the Copyright Committee, Pam Brannon, then Committee vice chair (now chair), and Emily Feltren, AALL's director of government relations.
While the Copyright Office unfortunately does not plan to make public the content of the meetings, Copyright Office officials said that they will publish a list of groups and individuals with whom they met. They also assured us that there would be opportunity to provide comments on their forthcoming draft of Section 108.
During the call, AALL made the following points:
- We believe that the current requirements for eligibility should be maintained, but that Section 108 should be broadened to include museums.
- The three copy limit for preservation and security should be replaced with a conceptual limit. We believe it is the rigidity of the current language that has made Section 108 untenable as technology has developed. The flexibility offered by a conceptual limit will offer a resolution of current issues related to technology, including incidental copies, while also permitting flexibility in the future.
- Libraries should be permitted to make works preserved under Section 108 available to their users, including through interlibrary loan. The current standard, particularly with regard to digital works, is unworkable. The primary method of making preservation copies today is digitization, and locking use of these copies to the physical premises of the library does not reflect the way that libraries, or information, operate today.
- Flexibility is paramount to avoid the rigidity that limited Section 108 in the past. To best accomplish this flexibility, we support rulemaking with a presumption of permanence, similar to that outlined in our comments on revising the DMCA Section 1201 rulemaking procedure.
- We generally agree with the Section 108 Study Group that web archiving of publicly available websites, with the exception of the opt-out language. The opt-out language places an undue burden on libraries to remove content that, if it were in print, the user would have no authority to ask to be removed.
We also emphasized our view that Section 108 exceptions should take priority over conflicting contractual terms, and that any changes to Section 108 should support, and in no way undermine, fair use under Section 107.
The AALL Copyright Committee and Government Relations Office will continue to participate in efforts to update Section 108 and update AALL members on the latest developments.