Copyright Office Intent On Changing The Part Of Copyright That Protects Libraries & Archives, Even Though No One Wants It Changed
from the what's-up-guys? dept
It’s no secret that the US Copyright Office has been acting pretty nutty lately. For decades, the office has basically carried the water of the legacy copyright/entertainment industries, but at least they would sometimes try to appear marginally balanced. Now it appears that all caution has been thrown to the wind and the entire office is actively looking to suppress and attack user rights and innovation. In just the past few weeks and months, we’ve pointed out a series of really bad ideas on reforming the notice-and-takedown safe harbors of the DMCA, a separate plan that would effectively strip tons of websites of their DMCA safe harbors by requiring them to remember to keep re-registering, and a disturbing willingness to totally misrepresent the copyright issues at play with regards to the FCC’s set-top box proposal.
So, perhaps, we shouldn’t be all that surprised that the Copyright Office appears to be making a move to screw over libraries now, too. Section 108 of the Copyright Act has explicit carve-outs and exemptions for libraries and archivists. These are stronger than fair use, because they are clear exemptions from copyright, rather than fuzzy guidelines that have to be adjudicated in court. Section 108 is super important for libraries and archives (including the Internet Archive). So why does the Copyright Office want to change it? That’s a bit of a mystery in terms of public explanations, but it’s not hard to take some guesses.
The Copyright Office started exploring this issue a few years back, insisting that Section 108 was “outdated” for the digital age. And while there are many aspects of copyright law that are obsolete for the digital age, the exemptions for libraries and archives were not among them. And everyone let the Copyright Office know that. And… the Copyright Office has basically ignored them all. Back in June, the Copyright Office announced via the Federal Register that it was moving forward with putting together recommendations on changing Section 108, and anyone who had comments could “schedule meetings in Washington, DC to take place during late June through July 2016.”
Yes, you read that right. In an effort to — it claims — update the law for the digital age, the Copyright Office demanded that anyone who had comments needed to show up at its offices in DC to discuss. Eventually, after there was pushback, the Office agreed to set up some phone meetings as well. And, of course, all of these meetings were secret, because nothing says good government like backroom meetings in secret with folks who happen to be in DC. As the American Library Association wrote about this, it seems like a very sketchy way to go about policymaking.
[T]he very fact that these discussions are confidential takes a lot of nerve. We have never heard of an instance where a government agency seeking public comment does not provide public access to the comments. This is not a national security issue after all. Section 108 is about interlibrary loan, preservation and replacement of library resources, and copies that libraries can make for users, not global surveillance programs.
Either way, basically everyone is asking why the Copyright Office is even doing this, as the library and archivist worlds say that the current law is working fine. Here’s the Library Copyright Alliance (which includes the American Library Association and others) pointing out that libraries don’t think the law is obsolete or in need of a refresh:
We oppose an effort to overhaul Section 108 for four reasons. First, although Section 108 may reflect a pre-digital environment, it is not obsolete. It provides libraries and archives with important certainty with respect to the activities it covers. Second, as the recent decision in Authors Guild v. HathiTrust, 755 F.3d 87 (2d Cir. 2014), makes clear, fair use supplements Section 108 and thus provides a sufficient mechanism for updating it when necessary. For example, fair use provides a sufficient basis for website archiving. Third, amending Section 108 could have the effect of limiting what libraries do today. Again using website archiving as an example, the Library of Congress?s Section 108 Study Group proposed a complex regulatory scheme for website archiving, an activity already routinely performed by libraries as well as commercial search engines. Indeed, some rights holders see the updating of Section 108 as an opportunity to repeal the fair use safe harbor in Section 108(f)(4) and restrict the availability of fair use to libraries. Fourth, based on the highly contentious and protracted deliberations of the Section 108 Study Group, it is clear that any legislative process concerning Section 108 would be equally contentious and would demand many library resources just to maintain the status quo, let alone improve the situation of libraries. A Section 108 reform process would consume significant Congressional resources as well. Accordingly, we urge the Committee to leave Section 108 as is.
And then how about the Society of American Archivists? They don’t like it either.
In contrast to the opinion expressed in the Notice of Inquiry, SAA does not consider Section 108 to be obsolete or in need of serious reform. It is used every day by practicing archivists all across the country. To the extent that the Section contains specific conditions and restrictions, it has perhaps not aged well. Fortunately there are many Sections that express a general goal without imposing unreasonable conditions. Furthermore, the ?Fair Use savings? clause, Section 108(f)(4), ensures that actions that are not otherwise authorized in Section 108 may, under appropriate conditions, still be undertaken by archives.
Although there are aspects of Section 108 that could be updated, the benefits of doing so are likely to be small while the cost of getting agreement on the changes is likely to be high. SAA would prefer to see the Copyright Office focus on other areas of greater concern, including reform of statutory damages (a serious impediment for archives that may own published unclaimed copyrighted works) and implementation of an international treaty that would support fuller engagement by American archivists with those international communities whose heritage is often found in U.S. archives.
And, then, there’s the digital archivists over at the Internet Archive. They are concerned about possible changes as well:
We are extremely concerned that Congress could take the Copyright Office?s proposal seriously, and believe that libraries are actually calling for these changes. That?s why we flew to Washington, D.C. to deliver the message to the Copyright Office in person: now is not the time for changes to Section 108. Libraries and technology have been evolving quickly. Good things are beginning to happen as a result. Drafting a law now could make something that is working well more complicated, and could calcify processes that would otherwise continue to evolve to make digitization efforts and web archiving work even better for libraries and content owners alike.
In fact, just proposing this new legislation will likely have the effect of hitting the pause button on libraries. It will lead to uncertainty for the libraries that have already begun to modernize by digitizing their analog collections and learning how to collect and preserve born-digital materials. It could lead libraries who have been considering such projects to ?wait and see.?
So, just who is the Copyright Office serving in trying to update Section 108?