For those who are not copyright or library geeks, Section 108 is one of the most important parts of the Copyright Act for libraries.
For those who are having trouble reading the medium-grey on light blue summaries of recommendations in the Executive Summary (what were they thinking?), here’s my summary of the summary:
Museums should be covered by Section 108
Recommending stricter criteria for eligibility for libraries, including “possessing a public service mission, employing a trained library or archives staff, providing professional services normally associated with libraries and archives, and possessing a collection comprising lawfully acquired and/or licensed materials.” Hmm.
Section 108 should be amended to permit some outsourcing of library & archive exceptions.
Ease up on the restrictions for replacement copies in 108(c), to include fragile copies, but also some strengthening of requirements — for instance, libraries are required to look for copies available at a fair price, and the Committee recommends that can include “licensed” copies. Hmm.
Recommendations about preservation of unpublished works, including limiting this to “unpublished works that have not been publicly disseminated.” They include a definition of “not publicly disseminated”, but I wonder how tenable these distinctions are going to remain. Also noting that borrowed copies may not be archived by the borrowing institution.
An exception should be added to permit preservation of “publicly disseminated works” whether published or otherwise publicly disseminated. These are dark archives, so access is specifically restricted: “The library or archives restricts access to the preservation copies to that which is necessary to effectively maintain and preserve the work”. A long list of requirements to qualify here; this is really quite bloated IMO.
An Internet Archive exception “to permit … capture and reproduce publicly available online content for preservation purposes and to make those copies accessible to users for purposes of private study, scholarship, or research.” There should be an opt out, libraries and archives should not interfere with material exploitation, and labeling is required.
The television news exception should be amended to permit streaming of archives, but not “downloadable copies.”
108(f)(1) should be amended to clarify that libraries do not have liability for unsupervised use of reproduction equipment, e.g., library users’ personal cameras, scanners, etc. And reorganize the darn section logically.
Well, I could have hoped for a lot more, but there are some improvements here. Good luck getting them through Congress, though, especially in an election year. Maybe we’ll see some substantive reforms in 2009, but I’m not going to bet the farm on it.
(cross-posted @ sivacracy) followup 4/28: Here’s a link to Mary Minow’s post of Peter Hirtle’s analysis: posted at Stanford Library fair use website.
The Library of Congress / Copyright Office issued its third set of DMCA rulemaking exemptions, just before taking off for the holidays. I was eagerly anticipating the rulemaking (even more eagerly than usual) after David Carson, General Counsel at the Copyright Office, kept dropping hints about the what we could all look forward to at a panel at Fordham last Friday. (The ever witty Hugh Hansen said it was the closest he’s seen to a legal strip tease.)
The rulemaking is more generous than it has been in past years (though still not as generous as I would be).
To sum up & paraphrase:
“Persons making noninfringing uses of the following six classes of works will not be subject to the prohibition against circumventing access controls (17 U.S.C. § 1201(a)(1)) during the next three years.” (The exemptions go into effect starting Monday 11/27 & expiring Oct. 27, 2009.)
Film professors. (new) Film professors etc. can circumvent CSS on DVDs for teaching. (Limited to works in the school collection.) (New exemption)
Preserving old video games. Libraries & archives can preserve computer programs & video games for obsolete platforms & medias. (This kind of exemption shows the weirdness of the 3-year expiration for each of these rulemakings. Libraries & archives had better do a lot of preservation in the next 3 years because who knows if we’ll get it again in 2009! This is a carry-over exemption, but every 3 years librarians have to make the case again.)
Malfunctioning dongles. You, me, and anyone else can disable malfunctioning access dongles on computer programs if the dongles are obsolete. (Another carry-over.)
EBook blind readers. Blind ebook read-aloud exemption continues from past exemptions.
Cell phone switching. (new) If you switch cell phone companies you can disable proprietary technologies to keep your cell phone. (This is a new exemption.)
Sony rootkits. (new) Sony rootkits and other CD copy protections can be disabled to test, investigate, or correct security flaws or vulnerabilities. (This is a new exemption, and I’m glad it’s here, but, honestly, we got more bang for the buck out of the furious glare of news media & public outrage & a little state’s attorney general scrutiny.)
The Librarian of Congress carefully reminded us that “[t]his is not a broad evaluation of the successes or failures of the DMCA.” Also, that the rulemaking is just for access-control exemptions, not copy-control exemptions, nor does the rulemaking craft exemptions for the prohibitions on making / distributing circumvention tools.
There’s a lot more detail in the 88 page “Recommendation of the Register of Copyrights”, which is where the juicy comments on everybody else’s proposed recommendations will be. What a fun txgiving read! O thank you Copyright Office — this is much better than a football game. (I’m not being sarcastic.)
The Copyright Office is taking comments (thank god) on the current preregistration system which supports Internet Explorer only. 70 FR 44878-79 (8/4): Preregistration of Certain Unpublished Copyright Claims [PDF] [seen on news.com via sivacracy; and zdnet via news.google]
Of course, comments are not being accepted electronically (and why not? It’s easy enough to write scripts accepting open source comments. Hell, they could probably borrow the FCC’s electronic comment system; that’s been up for years). Comments are DUE by Monday, Aug. 22, 2005.
If hand delivered by a private party, an original and five copies of any comment should be brought to Room LM-401 of the James Madison Memorial Building between 8:30 a.m. and 5 p.m. and the envelope should be addressed as follows: Office of the General Counsel, U.S. Copyright Office, James Madison Memorial Building, Room LM-401, 101 Independence Avenue, SE., Washington, DC 20559-6000. If hand delivered by a commercial courier, an original and five copies of any comment must be delivered to the Congressional Courier Acceptance Site located at Second and D Streets, NE., Washington, DC, between 8:30 a.m. and 4 p.m. The envelope should be addressed as follows: Copyright Office General Counsel, Room LM-403, James Madison Memorial Building, 101 Independence Avenue, SE., Washington, DC. If sent by mail, an original and five copies of any comment should be addressed to: Copyright GC/ I&R, P.O. Box 70400, Southwest Station, Washington, DC 20024-0400. Comments may not be delivered by means of overnight delivery services such as Federal Express, United Parcel Service, etc., due to delays in processing receipt of such deliveries.
Slate just ran an article on cover albums (“Copycats – The cover album makes a comeback” by Franklin Bruno, 2005/6/23), which is interesting timing considering that the Register of Copyrights has proposed to eliminate the compulsory cover license. [Lessig covers (ahem) the issue and responds to commentary from Importance of Being Ernest and Joe Gratz].