For over a decade, the U.S. Copyright Office and other groups have explored the operation of section 108 of the U.S. Copyright Act (exceptions for libraries and archives) with an eye toward updating the provision for the digital age. After more recent study and review, the Copyright Office is now issuing the present Discussion Document in an effort to facilitate final resolution of this important topic.
The Office remains firm in its belief that section 108 needs to be updated so that libraries, archives, and museums have a robust, comprehensible, and balanced safe harbor in order to fulfil their missions. The current section 108 language is insufficient to address digital works and digital transmissions, does not reflect the way that libraries and archives actually operate, and excludes museums, among other constraints. Moreover, many of its provisions are vague and difficult to understand. After many years of study, a comprehensive update to section 108 remains an important aspect of any thorough review of the copyright system. Still, the Office is sensitive to the fact that many members of the library and archives communities have expressed concern about revising section 108.1 These concerns range from the manner in which the inquiry was conducted, to the retention of the fair use savings clause (section 108(f)(4)), to whether a revision is necessary at all. While these concerns are legitimate, many may be resolved through careful drafting and discussion, and should not entirely foreclose productive dialogue to improve the functioning of section 108. Moreover, the present moment offers a rare opportunity to benefit from Congress’ focus on copyright law in the digital era to make needed changes to section 108 that, in another time, might not find as willing an audience.
The objective of the Discussion Document is therefore threefold: first, to review the issues raised over the past decade of revision work; second, to outline the Office’s current views and proposals on the various revision issues; and third, and most importantly, to present and explain model statutory language for a new section 108. Although the model statutory language should not be seen as the Office’s final view on section 108, the Office believes that it is important to provide a more concrete framework for further discussion. Additionally, the Discussion Document includes copious illustrative examples of how the Office envisions the proposals might work in practice.