By GAIL FINEBERG
A single digital copy of any artistic or intellectual work—a book, manuscript, photograph, sheet music, sound recording, video recording, movie, map, electronic journal, database or anything else—has the propagating properties of dandelion fluff. With one puff, or a simple PC command to "send," the seeds of creation can be dispersed and replicated endlessly.
The ease with which a work in digital format may be copied and disseminated poses a challenge for both copyright holders and libraries and archives: how to ensure that digital works remain available to the public without damaging the market for creativity.
Cultural heritage institutions, in carrying forward their missions, have begun to acquire and incorporate large quantities of "born digital" works (those created in digital form) into their holdings to ensure the continuing availability of those works to future generations. Assisting in this mission, Section 108 of the Copyright Act sets limits on the exclusive rights of copyright owners. It provides exceptions so that libraries and archives can, among other things, legally make copies of copyrighted materials in certain cases for preservation, replacement and patron access. Yet, it has been observed that Section 108 does not adequately address many of the issues unique to digital media, either from the perspective of rights owners or libraries and archives.
To begin the work of updating Section 108 for the digital age, the Library's National Digital Information Infrastructure and Preservation Program (NDIIPP), in cooperation with the U.S. Copyright Office, has convened a select group of copyright experts from various fields, including law, publishing, libraries, archives, film, music, software and photography.
The Section 108 Study Group held its first meeting at the Library in April 2005. The charge to the group was to assess the effectiveness of Section 108 and to reach consensus on revisions that would "ensure an appropriate balance among the interests of creators and other copyright holders, libraries and archives in a manner that best serves the national interest."
The Section 108 Study Group is to report its findings and recommendations to the Librarian of Congress by mid-2006. The U.S. Copyright Office, part of the Library, will then conduct public hearings on the group's report. Recommendations will be submitted to Congress.
Laura E. Campbell, associate librarian for Strategic Initiatives, thanked the study group members for volunteering their time and expertise. "The success of the Section 108 Study Group is essential to the success of our digital preservation effort," said Campbell, who is leading a national initiative to collect and preserve important digital materials that are at risk of being lost. This project, NDIIPP, is executing its mission in partnership with a nationwide network of government agencies, libraries, archives and private-sector interests.
The success of NDIIPP is inextricably tied to changes in Section 108 because, in the digital world, preserving a work means making a digital copy of it. And because digital copies are so easily replicated, copyright owners worry that these copies will harm their ability to reap economic benefits from their work.
Register of Copyrights Marybeth Peters joined Campbell in thanking the group members for their work, which she said should have "an enormous impact on the future of scholarship."
Chairing the Section 108 Study Group are Laura Gasaway, director of the law library and professor of law at the University of North Carolina, and Richard Rudick, former vice president and general counsel of John Wiley and Sons, a publisher of print and electronic products for professionals in science, technology, higher education, medicine and the culinary arts.
The study group was limited to 19 members, and meetings are closed to ensure that the group keeps on schedule to meet its mid-2006 deadline. The group will hold occasional open meetings and hearings to keep interested observers posted, and a new Web site, scheduled for launch soon, will post progress reports and invite online questions, commentary and suggestions.
"We want to foster communication with others outside the group," commented Mary Rasenberger, policy adviser for special programs in the Office of Policy and International Affairs of the U.S. Copyright Office and the Office of Strategic Initiatives, who is managing the project.
At its inaugural meeting, the Section 108 Study Group drafted a mission statement that reflects its charge, brainstormed dozens of questions related to section 108 issues, and agreed to begin with preservation issues.
At its next meeting, in New York on June 9 (the group meets every two months, alternating between Washington and New York), the group will decide which matters to address and which to eliminate, Rasenberger said.
"We also will start getting into the weeds on some of the preservation issues at the June meeting, and we will take up other potentially contentious issues, such as interlibrary loan and e-reserves, in subsequent meetings," she said.
Rasenberger said the group is meant to be a brainstorming, problem-solving body tasked with clarifying and updating the exceptions and limitations available to libraries and archives under copyright law. Its job is not to develop guidelines for libraries and archives or to craft legislation.
During their first brainstorming session, group members posed numerous questions, including: How should a library or archives be defined for the purposes of copyright law? Physical form? Profit or nonprofit? How should a library's or archives' "premises" be defined?
Is the number of copies currently permitted for preservation sufficient, considering that multiple copies of digital works are necessary to properly archive and migrate them? If the number of copies currently permitted for preservation is not sufficient, is it possible to devise a numerical limitation? Are there alternatives to numerical limitation on reproductions for preservation that effectively limit the scope of the exception, such as limits on distribution and access? Should a library be permitted to make replacement copies of copyrighted works before they are damaged or deteriorating, given the speed with which digital information degrades? Should there be any general exceptions for temporary copies made in the course of indexing or accessing a work for curatorial or research use? Should it ever be permissible to digitize analog material in order to fulfill an interlibrary loan request?
Posing and pondering those and other Section 108 questions are the following group members: Gasaway and Rudick, co-chairs; June Besek, executive director and director of studies, Kernochan Center for Law, Media and the Arts, Columbia Law School; Robin Bierstedt, vice president and deputy general counsel, Time Inc.; Troy Dow, vice president of government relations, the Walt Disney Co.; Jesse Feder, director for international trade and intellectual property, Business Software Alliance; Peter Givler, executive director, Association of American University Presses; Peter Hirtle, intellectual property officer, Cornell University Library; Nancy Kopans, general counsel and secretary, JSTOR; Eve-Marie LaCroix, chief, Public Services Division, National Library of Medicine; James Neal, vice president for information services and university librarian, Columbia University; Miriam Nisbet, legislative counsel, American Library Association; Bob Oakley, professor of law and director, Law Library, Georgetown University Law Center; John Schline, senior vice president of corporate business affairs, Penguin Group (USA); Lois Wasoff, attorney-at-law and former vice president and corporate counsel, Houghton Mifflin Co.; Donald Waters, program officer for scholarly communication, The Andrew W. Mellon Foundation; Paul West, senior vice president of National Studio Operations, Universal Mastering Studios; Maureen Whalen, associate general counsel, J. Paul Getty Trust; and Nancy Wolff, partner, Wolff & Godin LLP.
Assisting the study group from the Library are Rasenberger; Chris Weston, attorney-adviser, U.S. Copyright Office and Office of Strategic Initiatives; and Jenel Farrell, special assistant, Office of Strategic Initiatives.
Gail Fineberg is editor of the Library's staff newsletter, The Gazette. Mary Rasenberger, Chris Weston and Guy Lamolinara, Office of Strategic Initiatives, contributed to this article.