Digital Access to Archival Works: Could 108(b) Be the Solution?
By Peter B. Hirtle
Section 108(b) of the Copyright Law, which deals with unpublished works, is often described primarily has a “preservation” clause, with its primary purpose being to ensure that our manuscript heritage is not lost. A closer look at the legislative history of the section, however, reveals that Congress was primarily concerned with increasing scholarly access to unpublished materials. Limited distribution to other libraries and archives to enhance research access to the original materials, it concluded, does not compete with the copyright owner’s right to commercially exploit the work. Under the original section 108(b), there were no limits on the number of copies that could be made for deposit in other repositories. Today digital technologies could provide a means of providing access to research materials without having to distribute physical copies to other repositories (though distribution of copies for preservation purposes would still be desirable).