Yes, Laura Gasaway referred to the conclusions of the 2005 Study Group though the Study Group had no specific recommendations regarding ILL. Here is the section she referred to:
Copies for Users Exceptions Direct Copies and ILL: Subsections 108(d) and (e) Issue: Subsections 108(d) and (e) allow libraries and archives to make and distribute single copies to users, including copies via interlibrary loan (ILL), under certain conditions. Should these exceptions be amended in light of the increasing use of digital technologies both by libraries and archives and by rights holders? Conclusions: 1. The Study Group concluded in principle that the single-copy restriction on copying under subsections 108(d) and (e) should be replaced with a flexible standard more appropriate to the nature of digital materials, such as allowing a limited number of copies as reasonably necessary for the library or archives to provide the requesting user with a single copy of the requested work - but only if any electronic delivery of digital copies is subject to adequate protections. 2. Electronic delivery of copies under subsections 108(d) and (e) should be permitted only if libraries and archives take additional adequate measures (1) to ensure that access is provided only to the specific requesting user, and (2) to deter the unauthorized reproduction or distribution of the work. The Study Group members agreed that adequate measures will depend on the type of work and context of the use, but did not agree on which measures would be adequate, and particularly whether technological protection measures should be required in any given case. 3. The current requirement that "the copy or phonorecord become the property of the user" should be revised to state that the library or archives may not retain any copy made under these provisions to augment its collections or to facilitate further ILL. 4. Users should be permitted to make ILL requests only through their own libraries and not directly of another library. This is the current practice, Section 108 Study Group Report xi Executive Summary but there was no agreement on whether specific statutory clarification is necessary. 5. The terms "fair price" in subsections 108(c) and (e) and "reasonable price" in subsection 108(h) should be reconciled and a single term used to avoid confusion. From: [email protected] [mailto:[email protected]] On Behalf Of Brewer, Michael Sent: Tuesday, February 12, 2013 3:10 PM To: [email protected] Subject: Re: [Videolib] Brief Summary on the Copyright Exceptions for Libraries in the Digital Age: Section 108 Reform Thanks for the update. One questions. In my reading of 108, making digital copies of ILL articles is already legal (since the law says nothing about the format in the part of the law having to do with making copies for users). Did anyone bring that up? mb Michael Brewer Team Leader for Instructional Services University of Arizona Libraries [email protected]<mailto:[email protected]> From: [email protected]<mailto:[email protected]> [mailto:[email protected]] On Behalf Of Hutchison, Jane Sent: Tuesday, February 12, 2013 12:48 PM To: [email protected]<mailto:[email protected]> Subject: [Videolib] Brief Summary on the Copyright Exceptions for Libraries in the Digital Age: Section 108 Reform Jane Hutchison and deg farrelly attended the symposium "Copyright Exceptions for Libraries in the Digital Age: Section 108 Reform" on Friday, February 8th at Columbia Law School presented in cooperation with the US Copyright Office. Panelists and attendees consisted primarily of attorneys, publishers and librarians. Notable panelists included Maria Pallante (U.S. Register of Copyrights), Richard Rudnick (General Counsel John Wiley & Sons), Laura Gasaway (University of North Carolina School of Law), Mark Seeley (Elsevier) Kenneth Crews (Columbia University), Jonathan Band, and Paul Aiken (Authors Guild). The symposium consisted of four sessions: 1) The Legal Landscape 2) Section 108 Issues other than Mass Digitization 3) To What Extent Should Libraries be Permitted to Engage in Mass Digitization of Published Works and for What Purposes, and 4) What Should be the Conditions on Libraries Digitizing, Maintaining and Making Available Copyrighted Works. Several panelists participated in the 2005 Study Group on 108 that made specific recommendations and conclusions for further discussion. Those recommendations are available here: http://www.section108.gov/docs/Sec108StudyGroupReport.pdf. The options presented to the audience was whether 108 should be kept as it, repealed or reformed. There was obviously no agreement across the panelists or the audience. Jonathan Band posited that reopening 108 to legislative action is a danger considering the current state of affairs with the legislators and lobbyists and could result in losing or severely limiting the protections that libraries already have with Section 108. Others felt that the 2005 Study Group's recommendations should be considered and perhaps extended. Howard Besser said that the US Copyright Office should consider the Mellon Foundations Videos at Risk project and that a national database of "orphan videos" would be advantageous so that each library doesn't have to perform a comprehensive search. Jane Ginsburg at Columbia Law School updated the audience on international movements regarding orphan works and mass digitization. France developed a formula for orphan works that gave authors and publishers the right to opt-out. In addition others, such as Laura Gasaway discussed preserving web sites and streaming of TV News as well as the right to make digital copies of ILL articles. A librarian brought up the issue of eBooks and the fact that library collections are shrinking and that preservation is and will be a problem if libraries don't own the works. Specific examples of this issue include the soundtrack to the film Up, and the Netflix series House of Cards both of which do not exist in tangible hard copy. Two issues emerged from orphan works: preservation and access. Who and how will it be carried. It was agreed that it is an expensive undertaking to digitize works and that libraries would not go to the extent unless the item was considered worth their while to preserve. Brandon Butler mentioned the Code of Best Practices for Fair Use in Academic and Research Libraries as one way to follow a community of users in making copies and preserving works. Kenneth Crews, one of the panelists stated that there is an illusion of balance with certainty and that uncertainty is always an element. Therefore one should nurture a robust fair use. We believe the Library of Congress and the Copyright Office face a difficult task deciding whether to follow the 2005 Study Group and reform Section 108 or leave it be, and in the hands of the community of users and court cases to decide future interpretation of Section 108. Jane B. Hutchison Associate Director Instruction & Research Technology 300 Pompton Road Wayne, NJ 07470 (w)973-720-2980 (cell) 973-418-7727
VIDEOLIB is intended to encourage the broad and lively discussion of issues relating to the selection, evaluation, acquisition,bibliographic control, preservation, and use of current and evolving video formats in libraries and related institutions. It is hoped that the list will serve as an effective working tool for video librarians, as well as a channel of communication between libraries,educational institutions, and video producers and distributors.
