Lolly Gasaway and Richard Rudick, Co-Chairs of the Section 108 Study Group, have issued their report after a lengthy period of deliberation over quite a few really thorny issues. Readers may recall that last May, Lolly was our guest blogger here at Collectanea. Perhaps we can persuade her to write a short note for us about her experience with the Study Group, or her overall thoughts about its work and the next steps.
I have had a chance to skim the report, but not to read it thoroughly, nonetheless, I thought I would make a few initial comments and encourage everyone interested in the development of the role libraries play in a digitally networked world to read this report.
It details not only those items on which the diverse participants in the group could reach consensus, and were willing to make recommendations, but all the issues that they considered but could not agree how to address. Where they had fundamental disagreement, they lay out both the pros and cons of various approaches they considered, of each side's concerns. Thus, it documents process very thoroughly where consensus outcome was not achieved.
Of course there is much to cheer about such an effort. It is hard to even imagine how difficult it must be for all sides to come to consensus, even given all the time in the world, which we never have. On the other hand, I'm sure most of us will find things that worry us. For example, I fear that the recommendations, or at least some of them, will cause Section 108 to follow Section 110(2) into the sunset of usefulness by burdening exercise of the rights it provides with enough restrictions, conditions and exceptions as to make the exceptions functionally useless.
Thankfully, I didn't see an overwhelming amount of this conditioning, excluding and excepting, but we are only at the recommendation stage. I expect that if a bill is introduced, it will look much like the Report recommendations. But after the legislative process is complete, it will look like Section 110(2). If that happens, I am very concerned that what we have now may well, on average, be better for libraries. Perhaps Lolly might comment for us on how that issue was handled in the deliberations. Were participants aware of the tendency to "contractualize" the recommendations (make them like complex contract provisions) and the likely effect of such provisions?
Another aspect of the report that concerns me is a bit harder to express, and maybe there really is nothing that can be done about it. I know the Study Group was aware of it, because they explicitly address it in several places, but this still bothers me. My focus in my graduate work is on the effect of the current evolution of publishing, music and film industry business models on copyright law, policy and practice. I guess I'm worried that things are changing so quickly that there have just got to be many, many assumptions embedded in the recommendations that are going to be shown to be inaccurate in the next few years. This concern is more than can be addressed by being general in a statute, rather than specific (for example, avoiding references to specific technologies that won't be relevant after awhile). It's more about fundamental assumptions, for example, assuming that libraries will be doing the same things in 10 years that they do now, that they'll have basically the same role to play, that the relationship with publishers will be similar. I'm just not so sure about that.
In part this concern stems from an irresistible urge to compare this effort to the much larger effort to "adjust" copyright law for the 21st century that occurred a decade ago, the Digital Millennium Copyright Act. That Act's architects got it so wrong (in some places) at least in part because they could not imagine how different things would be. Maybe we never can.
