Last Twenty (L20) Collections: Applying Copyright’s Section 108(h) in Libraries, Archives and Museums Including the New Music Modernization Act for Pre-1972 Sound Recordings

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Legally, libraries and archives may make and distribute copies of works in the last twenty years of their copyright, as long as there is no normal commercial exploitation of the work(s) and no reasonably priced copy available. 17 U.S.C. § 108(h). Unfortunately, § 108(h) of the 1976 Copyright Act has not been utilized by libraries and archives, in part because of the uncertainty over definitions (e.g. “normal commercial exploitation”), the difficulty sometimes of determination of the eligibility window (last twenty years of the copyright term of published works), and the question of 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 § 108(h), and suggests how to create a Last Twenty (L20) collection of all kinds of published creative works, including sound recordings, audio, books, and art. As of 2018, this means that § 108(h) is available for the forgotten and neglected works first published between 1923 and 1942, including millions of foreign works restored by the General Agreement on Tariffs and Trade (GATT) as of January 1, 1996. Each year a new set of works becomes eligible. Section 108(h) is less effective for big, commercially available works. In many ways, that is the dividing line created by § 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 during the last twenty years of their copyright term. In fact, § 108(h), when it was being debated in Congress, was labeled “orphan works.” This paper suggests ways to think about the requirements of § 108(h) and to make it more usable for libraries. Essentially, by confidently using § 108(h), we can continue to make the past usable one query at a time. The paper ends with the two latest developments regarding § 108(h): (1) an evaluation of the recent 2017 discussion paper by the U.S. Copyright Office on § 108 and suggests changes/recommendations related to the Copyright Office’s proposed changes to § 108(h) and (2) the enactment of the Music Modernization Act of 2018, which includes § 108(h) for pre-1972 sound recordings.

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