Peters on 108(h)

Elizabeth Rader recently noted some interesting testimony by Mary Beth Peters, the Register of Copyright.

There is much of interest in the testimony, including Peters's response to the critics of the DMCA rulemaking (of which I have been one), but her comments on Section 108(h) were of special interest:

A key component of the Sonny Bono Copyright Term Extension Act, which extended copyright terms by twenty years, was an exception to help ensure public access to works in the last twenty years of their copyright term. During consideration of the issue, the Chairman of this Subcommittee asked the Office to facilitate negotiations between libraries, educational institutions and copyright owners with a goal of reaching agreement on the scope of a possible exemption. There were numerous meetings over a span of many months. Although there was some disagreement on the language of the exemption, there was no disagreement that the exemption would apply to all types of works.

The exemption, which became 17 U.S.C. 108(h), essentially permits a nonprofit library, educational institution or archive to reproduce or distribute copies of a work, including in digital format, and to display or perform a work during the last twenty years of the copyright term as long as that work is not commercially available. Unfortunately, the terms of section 108(i) make this exception inapplicable to motion pictures, musical works and pictorial, graphic and sculptural works. I am hopeful that this error will be remedied and would be pleased to work with the Subcommittee to correct it.

There are some of us who believe 108(h) was a sorry bone tossed to the library community in a sorry attempt to buy their support of the ill-conceived extension of copyright. Nevertheless, extending the provisions to formats other than text - and I would hope unpublished works as well - might make it slightly more usable.

Does anyone know of a library that has used 108(h) to digitize works?