Creating a Last Twenty (L20) Collection: Implementing Section 108(H) in Libraries, Archives and Museums

Abstract

Section 108(h) has not been utilized by libraries and archives, in part because of the uncertainty over definitions (e.g. “normal commercial exploitation”), determination of the eligibility window (last twenty years of the copyright term of published works), and how to communicate the information in the record to the general public. This paper seeks to explore the elements necessary to implement the Last Twenty exception, otherwise known as Section 108(h) and create a Last Twenty (L20) collection. In short, published works in the last twenty years of the copyright may be digitized and distributed by libraries, archives, and museums, as long as there is no commercial sale of the works and no reasonably priced copy is available. This means that Section 108(h) is available for the forgotten and neglected works, 1923-1941, including millions of foreign works restored by GATT. Section 108(h) is less effective for big, commercially available works. In many ways, that is the dividing line created by Section 108(h): allow for commercial exploitation of works throughout their term, but allow libraries to rescue works that had no commercial exploitation or copies available for sale and make them available through copying and distribution for research, scholarship, and preservation. In fact, Section 108(h) when it was being debated in Congress was called labeled “orphan works.” This paper suggests ways to think about the requirements of Section 108(h) and to make it more usable for libraries. Essentially, by confidently using Section 108(h) we can continue to make the past usable one query at a time. The paper ends with an evaluation of the recent Discussion Paper by the U.S. Copyright Office on Section 108 and suggests changes/recommendations related to the proposed changes to Section 108(h).