In early February as a snowstorm blanketed much of the northeastern U.S., a capacity audience exceeding 100 people convened at Columbia Law School’s Kernochan Center to attend a special symposium on Copyright Exceptions for Libraries in the Digital Age: Section 108 Reform.
Co-sponsored by the U.S. Copyright Office, the symposium presented four sessions across a full day to examine two overarching questions: First, to what extent, if any, should Section 108—the statutory limitation Congress made effective in 1978 for libraries and archives—be amended, and second, does Section 108 affect library mass digitization initiatives?
The questions concerning Section 108 are now at issue because a confluence of factors has pushed libraries squarely in the crosshairs of a pitched global debate about copyright’s role in contemporary society. To this end, several issues hovered around that were not specifically on the symposium agenda. First, several panelists, including Maria Pallante, register of copyrights, mentioned orphan works and addressed the topic directly and extensively in her opening comments.
Second, the continuing copyright infringement lawsuit against Georgia State University insinuated itself throughout the day, especially since Marybeth Peters was present, though not as a panelist. Just days before the symposium, Peters, who is Pallantepredecessor and now a board member at Copyright Clearance Center, joined two other former Copyright Office officials in filing an amicus brief that argued the trial court’s ruling in the publishers’ case against Georgia State “is contrary to decades of copyright legislation and jurisprudence because it inappropriately [favored] uses for educational purposes over other purposes of copyright.”
Third, by the time the symposium started, The Authors Guild had announced that it planned to appeal a conclusive district court defeat in its copyright infringement lawsuit against HathiTrust and several participating universities. Paul Aiken, The Authors Guild’s executive director and panelist at the mass digitization session, took several opportunities to criticize the notion of mass digitization initiatives, both generally and as a proxy and predecessor of libraries’ preservation efforts. But to understand what really was at stake in the symposium, a history lesson is warranted.
Background of Section 108
Section 108 is a creature born of the Copyright Act of 1976, the current and operative copyright statute in the U.S. The intersection of copyright with libraries has a lengthy history prior to January 1978, when the act became effective.
According to a 2005 history of Section 108 prepared by Copyright Office officials and a journal article by Peter B. Hirtle, the first attempt to codify library uses of protected works occurred with the so-called Gentleman’s Agreement on library duplication. Issued in June 1935, this agreement essentially said that any “library, archives office, museum, or similar institution” that owned protected books or periodicals was allowed to make a “single photographic reproduction or reduction of a part thereof” for a scholar who asserted in writing that he or she “desire[d] such reproduction in lieu of loan of such publication or in place of manual transcription and solely for the purposes of research.”
Two principal conditions applied to this grant. First, the institution had to give the copy recipient written notice that the recipient was still liable for misuse or copyright infringement. Second, the institution essentially had to certify that it made the reproduction without receiving a profit.
The agreement served as a standard for several decades until about 1960, when technology opened options and issues that publishers and libraries had not foreseen upon the agreement’s publication a quarter century prior. The two big problems were interlibrary loan (to which the publishers objected) and library copying of scientific literature, which eroded journal publishers’ already-thin profit margins.
In June 1961, Abraham L. Kaminstein, then-register of copyrights, introduced a report on copyright reform, which recommended a statutory provision on library copying for the first time. Kaminstein proposed a new provision because fair use (which at the time was strictly based upon case decisions) was uncertain and therefore harming researchers. Stakeholders gave Kaminstein’s recommendations, which included a proposal for a blanket license system, a mixed response.
In 1968, the Williams & Wilkins Co. publishing company sued the National Library of Medicine and the National Institutes of Health for copyright infringement, claiming that the government agencies were making unauthorized photocopies of Williams & Wilkins’ journals for its staff and for other researchers. In 1972, the Court of Claims found in favor of the publisher, simultaneously claiming that single-copy reproduction of journal articles was not fair use and eviscerating the long-standing argument that single-copy duplication did not harm publishers. The Court of Claims also dismissed the Gentleman’s Agreement in light of advances in photocopying technology.
Arguably, this is when the move toward passage of a statutory limitation for libraries began in earnest. The American Library Association, the Association of Research Libraries, and the Medical Library Association began the hearings on the 1973 copyright revision bill by proposing an amendment in response to Williams & Wilkins.
But unlike the Gentleman’s Agreement, Section 108 applies only to libraries and archives; museums do not receive protection.
Stakes Are High
One of a library’s central missions is to provide access to recorded knowledge, in all formats, both present and historic. At its core, Section 108 seeks to facilitate this mission, giving libraries and archives relief from copyright infringement liability in order to foster access to scholarship and to preserve recorded knowledge that is in danger of being made inaccessible due to theft, damage, or obsolescence.
But this part of the law, once so foreign and so untested, has become noteworthy for several reasons. First, easy digital reproduction and networked communications have increased the public’s expectations in getting content immediately and without barriers. Second, the old has become new: The general public is much more interested now in getting access to historic culture, artifacts, and literature than ever before.
Third, and perhaps most importantly, large corporate copyright owners genuinely see any attempt to use or access these works as a loss of revenue. Increasingly, these owners who are mindful of the costs involved in developing new works would prefer to earn a sizable portion of their revenue from catalog works because the profit margins are higher. To a copyright owner’s mind, libraries and Section 108 potentially interfere with this prospectively lucrative and increasingly important revenue.
So, it shouldn’t be a surprise that The Authors Guild would continue litigating HathiTrust after a federal trial judge so conclusively decided against its arguments. The Authors Guild is not just appealing to overturn, limit, or modify the trial ruling. It is also trying to ensure that HathiTrust is the only such project of its kind, even if an appeals court sustains the initial rulings. Even though the HathiTrust case is about the parameters of fair use, it also is subtly about the archival, preservation, and scholarly dissemination activities that are at the core of Section 108.