LOC Suggests Updates to Copyright Law

Posted April 2, 2008 at 6:48pm

With e-books and Web sites slowly encroaching on paper and ink, preservation of America’s literary history has become increasingly difficult.

Web sites change constantly. Digital works deteriorate rapidly. Formats become obsolete.

But foremost is the problem of copyright laws that ignore digital works completely, making libraries and archives unsure of how to legally preserve it all.

This week, the Library of Congress released a report to update those regulations, which haven’t been substantially reviewed since originally passed in 1976. Written by an independent group, the report outlines dozens of legislative fixes to bring the law into the 21st century.

“Think of this in terms of preserving our nation’s culture and think of how often a computer has to be replaced,” said Richard Rudick, co-chairman of the group and a retired general counsel of publisher John Wiley and Sons. “We complain about paper and how fragile it is. In fact, it’s pretty durable. It’s much harder to keep digital matter safe.”

It’s an oft-repeated sentiment at the Library, where officials are trying to get a jump-start on preservation for the digital age.

In 2000, Congress gave the agency $100 million to create the National Digital Information Infrastructure and Preservation Program. The goal is to create a national strategy for preserving fleeting digital material, such as Web sites.

But that strategy depends on libraries and archives being able to legally preserve digital material — an uncertain ability under current law.

For example, section 108 of the Copyright Act of 1976 now dictates that libraries and archives can make only three copies of a published work, and only under certain conditions. That’s impossible to uphold with digital works because a new copy is made every time someone accesses it.

The report recommends that the law reflect this, allowing “a limited number of copies as reasonably necessary.” It also recommends that lawmakers create new rules to allow the preservation of Web sites, which can change daily.

Changes such as this will help ensure that today’s information isn’t lost, said Lolly Gasaway, a law professor at the University of North Carolina who co-chaired the study group with Rudick.

“It would mean that libraries could treat digital material much more similarly to analog material,” she said. “It would make a big difference, especially in preservation and replacement.”

But changing copyright law is always a struggle. Publishers and authors want to ensure they can sell their works, while libraries want to preserve it all and make it available to the public. The section 108 exception only passed in 1976 after years of debate.

Any change that makes the law more vague seems dangerous to authors, especially when technology is making it easier to share digital works freely, said Paul Aiken, executive director of The Authors Guild.

“It’s just that the publishing business is basically the copying business,” he said. “So once you say a certain amount of free copying is going to be allowed, it’s hard to protect the authors.”

There’s also the wider fear of a book or published article eventually being accessible on every library on any computer, rendering multiple copies unnecessary and putting publishers out of business. But the recommendations in the report may provide a good first step for publishers who are afraid of that, said Allan Adler, vice president of legal and governmental affairs at the Association of American Publishers.

“You build a level of confidence in the stakeholder community,” he said. “If that process works well and we don’t see a substantial amount of abuse, they will perhaps have a heightened sense of confidence.”

In fact, the study group seemed to move beyond the tension usually apparent between publishers and libraries, said Chris Weston, a program specialist at the Library’s Office of Strategic Initiatives. The group included experts from several stakeholders, including law schools, publishing companies and libraries.

Nineteen meetings later, the members unanimously agreed to all of its recommendations and outlined its discussions on topics where full agreement never occurred.

The Copyright Office will use this as the foundation for pushing legislation. Nothing will go to Congress before 2009, Library officials said, and the report first will be opened up for public comment and recommendations.

Rudick said he was optimistic about the impact of the group’s work on lawmakers.

“If I were someone working for Congress, I would be happy to have some document where groups that sometimes were at each others throats came together and came up with some recommendations,” he said. “It’s a big head start for the legislative process.”