Minow:What recommendations by the Section 108 Study Group would really help libraries, museums and archives if adopted into law?
Hirtle: Most of the recommendations from the group could help libraries, archives, and museums, but four stand out to me.
First, the report argues that at least some museums should be included in the section.That is not currently the case.
Second, the report proposes that there be a broad preservation exemption for published materials.It is possible that having explicit permission to preserve in Section 108 might reassure some libraries that are reluctant to preserve under the more ambiguous provisions of fair use.
Third, the provisions that grant libraries, archives, and museums explicit permission to do some of the things that the Internet Archive does under the umbrella of fair use may also be helpful.
Lastly, the recommendations address many of the absurdities in the current law.Here are two examples:
*Under current law, if a library made a replacement copy of an audio CD, it would no longer be able to loan that CD to its patrons (because digital replacement copies are restricted to the premises of the library – and audio CDs are digital).
*Certain preservation and replacement provisions limit the library to making three copies.This makes sense when you are talking about microfilm, but doesn’t make much sense when you are dealing with digital copies.
Minow: Anything that could hurt libraries, museums and archives?
Hirtle: There is always the danger that providing explicit permission for certain actions could imply that other actions outside the scope allowed in the section are suspect.Section 108 should never be a ceiling on what is acceptable except in those cases where it goes beyond what other sections, such as fair use, would allow.
The biggest threat will occur when 108 is opened for legislative amendment.The Study Group received proposals from many interest groups that would be very problematic for libraries, archives, and museums.I am thinking in particular of the suggestions that international ILL be banned and that libraries would need to determine if an article was available for sale from the publisher prior to making an ILL request.Most libraries would welcome the opportunity to purchase copies of articles from publishers rather than having to go through the ILL system if the cost was roughly comparable, but few I suspect would like to have it as a legal requirement.While these recommendations were not included in the final report, interest groups that know how to work the system may try to add them to 108 during the legislative process.
Minow:Tell us about the process the Committee went through. Was there screaming?
Hirtle: No screaming, though there were often strong differences of opinions.I was particularly impressed by the participation of the rights holders.It would have been very easy for them to have turned their back on the whole process and not consider at all any expansion of actions that could be interpreted as infringing on the exclusive rights of the copyright owner.They, however, recognized that the preservation and the maintenance of the historical record are very important and worked hard to try to identify those areas where libraries, archives, and museums could take action in a manner that would not hurt their interests.The future markets for digital delivery are so uncertain, however, that it was difficult to reach agreement on broad terms – there was an understandable fear of possible unintended consequences of any change to copyright law.
In the end, the 108 process for me confirmed Jessica Litman’s conclusions from her study of previous copyright revisions.Negotiated agreements among current stakeholders, she noted, while producing legislation that can be implemented, are unlikely to produce statutes that are flexible enough that they improve with age.