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Panel Seeks Balance on Copyright

The Section 108 Study Group, a 19-member panel sponsored by the Library of Congress that is examining ways to balance the interests of copyright holders and libraries in the digital age, met for the third time last week in New York City.

The group, whose name comes from the section of the U.S. Copyright Act that provides special exceptions for libraries and archives, will make recommendations to the Librarian of Congress by mid-2006. The U.S. Copyright Office will then hold public hearings before submitting recommendations to Congress.

Copyrights encourage science and the arts by awarding creators exclusive rights to the reproduction, distribution, display, performance and adaptation of the created work. However, Section 108’s exceptions for libraries, drafted with the print format in mind, have become harder to apply in the digital age.

For example, is a dorm room a part of the library?

Dick Rudick, one of the group’s two co-chairs, expects the panel to grapple with that very question in future meetings.

Section 108 provides that “the rights of reproduction and distribution … apply to 3 copies … of an unpublished work duplicated solely for purposes of preservation” so long as such a copy is “not made available to the public in that format outside the premises of the library or archive.”

The “premises” of a library takes on a potentially new meaning in light of technology that allows students to access password-protected materials from remote locations, such as dorm rooms.

Libraries “don’t think of themselves as being in a single building,” Rudick said. But publishers are “very concerned” that “the critical incentives for investment in published materials are not damaged or hindered.”

Rudick’s background is in publishing. He is the former vice president and general counsel at John Wiley and Sons. Laura Gasaway, the panel’s co-chairwoman, comes from the library world and is a law professor and director of the law library at the University of North Carolina.

The 19 members of the study panel were selected to represent libraries and archives as well as right-holders who could speak for the publishing, sound, video, magazine, photographic and graphic artist sectors. The group plans to meet once every other month for a year and a half.

Last week’s meeting focused on issues of preservation.

In December 2000, Congress appropriated $100 million for the Library of Congress to lead a national effort to collect and preserve important digital materials that are at risk of being lost.

Laura Campbell, who is leading the Library of Congress’ National Digital Information Infrastructure and Preservation Program, said in a statement that the success of the Section 108 Study Group is “critical” to the success of the digital preservation project.

Mary Rasenberger, a policy adviser in the U.S. Copyright Office, said Section 108, which limits to three the number of copies that a library can make, was developed using a “microfiche world view.”

“In the digital world, you have many copies: You have copies for each person working on maintaining the data — cataloguers, IT people — you also have countless temporary copies” that are automatically created in the computer “each time you access it.”

The study group is also taking a look at the transitory nature of digital copies.

“If you copy any digital work and put it on your own server, in 5-10 years, the digital files will degrade on their own and formats become obsolete so you have to keep migrating” to other formats.

Changing software also poses a problem.

“Adobe is considered a format that is pretty stable. But there is some software that comes in and out of existence and becomes unsupportable over time,” Rasenberger said. As a result, libraries need to copy the digital material into formats that are supported by newer software if they do not want the content to become inaccessible.

Robert Hersham, the rights and permissions manager for the American Library Association in Chicago, said he gets calls all the time from librarians struggling with copyright issues raised by aggressive pirating in the new digital world.

“We are trying to get into the 21st century by putting our books up on the Web. But we can’t do it because” once it “gets up on the Web” it goes everywhere and the copyright holder “gets no money,” Hersham said. “It’s too free. There’s no control.”

Rasenberger said she thinks some of the issues facing the study group, such as pure preservation, will be easier than others.

She expects the more difficult issues will come “once you begin talking about access. Not just preserving to preserve but preserving to make works available to the public.”

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