sept16_b.indd


September 2016 413 C&RL News

Carrie Russell is director of the Program on Public 
Access to Information for ALA’s Office for Information 
Technology Policy, email: crussell@alawash.org

W a s h i n g t o n  H o t l i n eCarrie Russell

Copyright review hits closer to home 
Although Congress has been out of session, 
the library copyright policy and lobbying 
coalition has continued its advocacy for 
fair, balanced copyright laws. In July, the 
Library Copyright Alliance (LCA)—con-
sisting of ALA, ACRL, and the Association 
of Research Libraries—met with the U.S. 
Copyright Office to voice opposition to 
changes to Section 108 of the Copyright 
Act (the “library exception”). Any changes 
to the law could shift the delicate balance 
of copyright law and favor one industry 
over another. 

Many industries, including entertain-
ment and Internet companies, as well as 
libraries, are involved in copyright policy, 
but reaching consensus among these 
stakeholders is a highly political process. 
Tighter control over fair use, for example, 
would provide additional revenue streams 
to rights holders, but would also, in librar-
ies’ view, hamper innovation, the creation 
of new works, and learning. The Copy-
right Office has historically favored the 
interests of authors and rights holders, so 
any recommendation the Copyright Office 
endorses concerning Section 108 is likely 
troublesome. Although the beneficiaries 
of the provision—libraries and archives 
themselves—have expressed objections to 
its revision, the Copyright Office wants to 
proceed with changes. 

In June, the Copyright Office issued a 
Notice of Inquiry asking that anyone who 
had any other information to share regard-
ing Section 108 reform make a private 
appointment with the Copyright Office in 
Washington, D.C. LCA and others vocifer-

ously objected to the requirement because 
the process lacked transparency and placed 
an unreasonable burden on concerned 
citizens by asking them to travel to Wash-
ington, D.C. The objections prompted 
the Copyright Office to accept meetings 
via phone calls and publish the names of 
those who met with them. However, the 
Copyright Office still refuses to provide a 
public record of what was discussed. 

Despite the fact that Congress will refuse 
to take up any legislation without broad 
consensus among the parties, especially 
given the upcoming elections, the Copy-
right Office has already drafted legislation 
that they hope will be introduced by a 
sympathetic legislator this fall. The Of-
fice’s proposed revisions to Section 108 are 
expected to include measures that mirror 
proposals by publishers and authors: ex-
tended collective license fees for digitiza-
tion and e-reserves; prerequisites necessary 
before archiving a website (much like the 
prerequisites required before using law-
fully acquired works in distance education 
as seen in The Teach Act); and waiving 
sovereign immunity before exercising an 
exception so it will be more profitable to 
sue a school, university, or library. 

What do libraries want out of a new 
Section 108? For LCA, contract pre-emp-
tion seems to be the ultimate solution. 
Since nearly all library digital resources 
are acquired through license agreements, 
license agreements should not circumvent 
the library and user rights we have in the 
copyright law, such as those in Section 
108. 

If the legislation proposed by the 
Copyright Office is as bad as we suspect, 
LCA will prepare librarians to contact their 
Congressional representatives to express 
their concerns.