Whose right is it, anyway? Cornell University librarian works to revise copyright laws

Scholarship relies on ready access to information. But sometimes the imperatives of research collide with ownership of original materials. Because a photocopy, interlibrary loan or Web page capture could break the law, the Cornell University Library needs clear guidelines on what it can and cannot reproduce.

To hammer out what libraries can do in support of research and teaching in this age of widespread digitization, Peter Hirtle, Cornell Library's intellectual property officer, worked for three years with a small group of rights owners, librarians and other disseminators of information on the Section 108 Study Group. Section 108 of the Copyright Act exempts libraries and archives from some copyright restrictions on reproduction and allows interlibrary loans of materials.

"Section 108 was created so that libraries and archives can be certain they can address the needs of their users," says Hirtle. "It allows libraries to make a copy of an article for a researcher that might otherwise be questioned as to whether it is a 'fair use.' Without Section 108, libraries could decide not to reproduce materials for fear of infringing on copyright law, thus paralyzing scholars' ability to work."

Fair use allows limited use of copyrighted materials without getting permission from rights holders, but defining what exactly constitutes fair use is the "gazillion-dollar question," says Hirtle. "Section 108 says that rather than have libraries and archives try to figure it out, we'll establish some firm guidelines on copying that they can follow."

To sharpen those guidelines, the study group was commissioned by the Copyright Office and the Library of Congress to identify needed legislative changes. It recommended, among other things, that:

The last recommendation, for example, might allow voters to compare a politician's campaign promises against what he or she delivered. A site that captures millions of Web sites already exists. But the Internet Archive's Wayback Machine http://www.archive.org/web/web.php has been sued frequently, and "its legality is entirely uncertain," Hirtle says. "It turns copyright on its head." Nevertheless, the Section 108 group found that Internet Archive-like activities should have at least some protection under law.

"Making copies of copyrighted materials for private study, scholarship or research will always be essential," Hirtle says. "Now that we've got new technology, we need to update the law to accommodate it to be able to continue to support Cornell researchers in the future."

The Section 108 Study Group's report is available at http://www.section108.gov. Other material on copyright law is found in the Cornell Copyright Information Center at http://www.copyright.cornell.edu/.

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