November 23, 2017

Columbia’s Neal on Section 108 Study Group: Content Providers Digging In

By Norman Oder

  • What about digital ILL?
  • Internet Archive a “cloud” over deliberations
  • Congressional hearings may be coming

This spring, the Section 108 Study Group, chartered in 2005 to inform legislative changes to update the Copyright Act’s exception for libraries and archives, delivered its long-awaited report, and as LJ reported, it remains unclear whether or if any of the careful recommendations will ever make it into law. On Saturday, group member Jim Neal, VP for Information Services and University Librarian at Columbia University, told an audience at the American Library Association’s (ALA) Annual Conference in Anaheim, why the going was so tough: content providers, well-represented in the group, are digging in. 

(Check the LJ 2008 ALA Annual Conference page for more live coverage.)

The arguments for a 108 update are clear. A law introduced in 1976 in response to a proliferation of photocopy equipment can’t exactly cope with network and digital technologies. But the year-long delay in the report—due initially in early 2007—“evidenced the broad complexities of the issue,” Neal said, “and the broad political disagreements that were brought out in the process.” 

He said the group found broad support for the inclusion of museums in new legislation, as well as a recognition that outsourced library services should also be covered. The group made “two very important omnibus recommendations,” he said: libraries should have an automatic exception to preserve materials, without permission, and exceptions should be extended to web-based content.

Major disagreement
However, he said the study group found “high level of disagreement, where we think there can be no significant legislative solutions,” regarding other issues, such as the use of digital technologies for interlibrary loan. “We all know how we behave in our resource-sharing environment,” Neal said. “To get that reflected in 108 seems to make a lot of sense. But there was not agreement from the content community.” Nor was there any agreement regarding adding graphics and audio content to the exceptions.

The group did discuss some other issues, but issued no recommendations. One concerns virtual libraries and archives. “There was a cloud over us through the whole process, called the Internet Archive,” he said, referring to the popular deep archive of web sites. “We felt it should be reflected, but couldn’t get there.” Nor could the group address whether 108 could trump licenses or contracts. 

“We had a lot of stumbling blocks,” reflected Neal. “I think we lacked consensus on guiding principles: What is copyright? What is an exception and limitation to copyright? It’s pretty hard to reach change… when you don’t have an agreement on guiding principles.”

Who represents the public interest?
In fact, he said, members even differed on who represents the public interest. “We kept saying we represent the public interest,” he said, referring to the library community. Content providers, however, responded that they supply jobs and support the economy. “That was an interesting debate.” 

Rights holders, he said, are concerned about losing their business. They wanted to make sure libraries don’t get digitization rights greater than they as publishers enjoy. They also frequently brought up piracy. Librarians, Neal said, urged against setting up laws “to deal with exceptional users.”

Now that the report has been filed with the Librarian of Congress, Neal said, Congress may hold some hearings in response to expected legislative proposals. “I think that this is hardball we are facing,” he said. “I am giving a talk in Quebec City at IFLA [the International Federation of Library Associations and Institutions conference this August], and the title is ‘Fair Use is Not Civil Disobedience.’ Are we ready for the hardball offensive that I think will be required to protect our rights?”

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