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Whatever impact the Section 108 Study Group report (PDF) may have on American culture remains to be seen. But it will have an impact.
The members of the Study Group are copyright experts who came together to review how the Copyright Act affects the work of libraries and archives in carrying out activities such as serving content to patrons and preserving digital information. It seeks to balance those needs with the rights of intellectual property owners.
The Study Group report, submitted to the Librarian of Congress and the Register of Copyrights, recommends changes to Section 108 of the Copyright Act and makes other observations, in order to address issues that have arisen, primarily due to the impact of the digital world, since that section was written in 1976. Section 108 contains copyright exceptions specifically applicable to libraries.
The report concludes almost three years of intense effort, and the many people involved in its development and publication are relieved, especially Study Group co-chairs Laura "Lolly" Gasaway and Richard Rudick. "Everyone is worn out," Richard said. "But it has been such a good process. It will produce a report that accomplishes something which is important both to our cultural heritage and to the creative industries."
He emphasizes that the report is only a milestone. The recommendations and views it presents will then have to be implemented both through legislation and practices in the copyright community, and that will take some time. Richard points out, "This report is the beginning of something, not the end."
Richard comes from the publishing industry, where he worked as a lawyer from 1970 until his retirement in 2004 as general counsel of John Wiley and Sons. Currently he is vice chairman of the board of directors of the Copyright Clearance Center.
Lolly has worked for more than 38 years as a law librarian and law professor and has been teaching copyright law since 1978. Currently she is associate dean for Academic Affairs and professor of law at the University of North Carolina School of Law.
Though they may have different backgrounds and interests, they share a commitment to the law and copyright. The same can also be said for the other members of the Study Group.
One of the crucial elements of the Study Group is that it is made up of autonomous individuals. "Members of the Section 108 Group were not representing the organizations with which they are affiliated," Richard said. "We were there to think and make our own judgments based, of course, on our perspectives and experience."
The process wasn't all harmonious and agreeable, by any means. "People did step aside from the organizations they came from but they didn't step aside from their feelings," Richard said. "The discussions were spirited." The participants had to work hard to remain open-minded. Lolly said, "Anytime you bring in people with different viewpoints, you try to understand both sides." The Study Group had to keep their expectations realistic. "The goal was not to get absolutely everyone to agree on absolutely everything," Richard said.
The group's experience did stretch the participants' understanding and respect of one another's worlds. Lolly noted that some publishers were impressed with modern libraries' sophisticated IT architectures. She said, "Publishers developed a better understanding of the restrictions that libraries placed on things: the access limitations, the safekeeping, the technological protection measures and sometimes encryption." High-tech restrictions – such as a library's ability to control access to copyrighted material onsite or limit access to authenticated users online – help reduce the fears of copyright holders.
Richard said that his publishing background was not an obstacle to a balanced view of copyright. "The purpose of copyright is to fund creativity and encourage dissemination of the result, not to lock it up," he said. And he acknowledged that the current version of Section 108 inhibits preservation of digital works. "That has to be solved."
Lolly admitted, "I did learn some things and changed my thinking about some of them, but not 100 percent. It is clearer to me what publishers see as threats. For example, the ability to reintroduce digital materials that publishers might have withdrawn due to defamation or something. That material might be floating around somewhere and get reintroduced by a library."
Richard agreed, "The experience has not changed my approach to copyright. But I gained a better understanding of what libraries do, what they need, and how we might accommodate those needs within a sound copyright system. I think that kind of experience was true for the members as a whole."
The public was permitted to contribute to the discussion. "We held roundtables to get public feedback and guidance," Richard said. "The [public] comments gave us access to perspectives and to information beyond what we brought to the table ourselves." Occasionally, to deepen their understanding of a topic, the group's members brought in experts to deliver presentations.
At the very least the Study Group report will move the copyright and digital-preservation dialogue forward among the stakeholders. Lolly sees the Study Group as setting a standard for future dialogues. "They've created best practices for libraries and publishers, a model for ways in which they could get together," she said.
Every nation faces similar dilemmas and constraints. Lolly noted that the Study Group has been told over and over that the world is watching its work. Nothing this comprehensive and thorough has been done before in any other country. Richard said, "We are engaged in something in which everyone [around the world] will have a stake. The issues are all the same. We all have the same problems, though maybe not the same solutions."
The co-chairs believe that the work of the Section 108 Study Group will benefit all Americans by promoting changes to Section 108 that address urgent digital requirements for libraries and copyright holders, and facilitate the preservation of American culture.
