Section 108 of the Copyright Act, the section that stipulates specific exemptions for archives and libraries, requires revision. Even at its inception in 1978, Section 108's exceptions were inadequate for archivists; however, in the digital age the gap has grown ever wider between the statute's provisions and the unchallenged practices of many archivists in support of preservation and increased public access.
A revised Section 108 should:
SAA adamantly opposes any attempt to restrict further the very limited exceptions in Section 108.
SAA will, via its Intellectual Property Working Group, monitor and recommend appropriate actions on Section 108 of the Copyright Act.
Section 108 was initially proposed as a method to increase scholarly access to unique archival material by allowing archives to make copies of archival collections for deposit in other research institutions . Subsequently provisions regarding library use were added to the text that was adopted in 1976 . The section was formulated at a time when typewriters, microfilm, and photocopies were the primary research technologies; archival materials existed primarily on paper, film, or magnetic tape. Subsequent amendments have attempted to keep the law current, but with only limited success. Furthermore, the rise of new services and practices in archives and libraries, and especially the advent of digital technologies, has made Section 108 largely irrelevant.
Congress has begun the process of reviewing all of Title 17 with an eye toward producing the next general revision to the Copyright Act, and review of Section 108 will be a major point of discussion. In addition, the World Intellectual Property Organization (WIPO) has begun discussion of a possible treaty setting minimum international standards for copyright exceptions for archives and libraries. A modern, coherent, and usable Section 108 could serve as a model for the rest of the world. It is thus timely to focus attention on Section 108 and the need to make it as effective as possible.
Section 108 has two great advantages over the fair use defense. First, Section 108 provides explicit assurance that certain actions are non-infringing. This clarity can encourage hesitant archivists who, because they are uncomfortable with their understanding of fair use or are unable to risk the cost of defending their understanding, needlessly limit public access to archival materials. Second, Section 108 authorizes some socially beneficial activities that may not constitute fair use, such as the copying of entire collections for deposit in other repositories.
The Section 108 Study Group compiled a set of practical (although conservative) recommendations for reform. They include:
Archives and libraries currently are actively engaged in all of these activities, and the law should be updated to reflect this reality of the digital world. For this reason, SAA endorses in full the Study Group’s recommendations. However, it is unlikely that Section 108 reform will adequately accommodate the archival profession's mission to increase access to library and archival materials or foster the preservation of our digital heritage unless the amendment goes beyond what the Section 108 Study Group proposed.
 Peter Hirtle, “Digital Access to Archival Works: Could 108(b) Be the Solution?” Copyright & Fair Use web site, Stanford University Libraries (24 Sept. 2006) http://fairuse.stanford.edu/commentary_and_analysis/2006_08_hirtle.html.
 Mary Rasenberger and Chris Weston, “Overview of the Libraries and Archives Exception in the Copyright Act: Background, History, and Meaning,” (April, 2005) http://www.section108.gov/docs/108BACKGROUNDPAPER(final).pdf
Approved by the SAA Council: May 2014