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shall make available to the transmitting organization the
necessary means for permitting the making of such copy
or phonorecord within the meaning of that section: Pro-
vided, That it is technologically feasible and economically
reasonable for the copyright owner to do so, and: Provided
further, That, if such copyright owner fails to do so in a
timely manner in light of the transmitting organization’s
reasonable business requirements, the transmitting organi-
zation shall not be liable for a violation of section
1201(a)(1) of this title for engaging in such activities as
are necessary to make such copies or phonorecords as per-
mitted under section 112(a)(1).’’.
SEC. 402. LIMITATIONS ON EXCLUSIVE RIGHTS; DISTANCE
EDUCATION.
(a) Not later than six months after the date of enact-
ment of this Act, the Register of Copyrights, after consulta-
tion with representatives of copyright owners, nonprofit
educational institutions and nonprofit libraries and ar-
chives, shall submit to the Congress recommendations on
how to promote distance education through digital tech-
nologies, including interactive digital networks, while
maintaining an appropriate balance between the rights of
copyright owners and the needs of users. Such recommenda-
tions shall include any legislation the Register of Copy-
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rights considers appropriate to achieve the foregoing objec-
tive.
(b) In formulating recommendations, the Register of
Copyrights shall consider—
(1) the need for an exemption from exclusive
rights for distance education through digital net-
works;
(2) the categories of works to be included under
any distance education exemption;
(3) the extent of appropriate quantitative limita-
tions on the portions of works that may be used under
any distance education exemption;
(4) the parties who should be entitled to the bene-
fits of any distance education exemption;
(5) the parties who should be designated as eligi-
ble recipients of distance education materials under
any distance education exemption;
(6) whether and what types of technological
measures can and/or should be employed to safeguard
against unauthorized access to, and use or retention
of, copyrighted materials as a condition to eligibility
for any distance education exemption, including, in
light of developing technological capabilities, the ex-
emption set out in section 110(2);
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(7) the extent to which the availability of licenses
for the use of copyrighted works in distance education
through interactive digital networks should be consid-
ered in assessing eligibility for any distance edu-
cation exemption; and
(8) such other issues relating to distance edu-
cation through interactive digital networks that the
Register considers appropriate.
SEC. 403. EXEMPTION FOR LIBRARIES AND ARCHIVES.
Section 108 of title 17, United States Code, is amend-
ed—
(1) in subsection (a) by—
(A) striking ‘‘Notwithstanding’’ and insert-
ing ‘‘Except as otherwise provided and notwith-
standing’’;
(B) inserting after ‘‘no more than one copy
of phonorecord of a work’’ the following: ‘‘except
as provided in subsections (b) and (c),’’; and
(C) by inserting after ‘‘copyright’’ in para-
graph (3) the following: ‘‘if such notice appears
on the copy or phonorecord that is reproduced
under the provisions of this section, or a legend
stating that the work may be protected by copy-
right if no such notice can be found on the copy
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or phonorecord that is reproduced under the pro-
visions of this section’’;
(2) in subsection (b) by—
(A) striking ‘‘a copy or phonorecord’’ and
inserting in lieu thereof ‘‘three copies or
phonorecords’’;
(B) striking ‘‘in facsimile form’’; and
(C) striking ‘‘if the copy or phonorecord re-
produced is currently in the collections of the li-
brary or archives.’’ and inserting in lieu thereof
‘‘if—
‘‘(1) the copy or phonorecord reproduced is cur-
rently in the collections of the library or archives; and
‘‘(2) any such copy or phonorecord that is repro-
duced in digital format is not otherwise distributed in
that format and is not made available to the public
outside the premises of the library or archives in that
format.’’; and
(3) in subsection (c) by—
(A) striking ‘‘a copy or phonorecord’’ and
inserting in lieu thereof ‘‘three copies or
phonorecords’’;
(B) striking ‘‘in facsimile form’’;
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(C) inserting ‘‘or if the existing format in
which the work is stored has become obsolete,’’
after ‘‘stolen,’’; and
(D) striking ‘‘if the library or archives has,
after a reasonable effort, determined that an un-
used replacement cannot be obtained at a fair
price.’’ and inserting in lieu thereof ‘‘if—
‘‘(1) the library or archives has, after a reason-
able effort, determined that an unused replacement
cannot be obtained at a fair price; and
‘‘(2) any such copy or phonorecord that is repro-
duced in digital format is not made available to the
public in that format except for use on the premises
of the library or archives in lawful possession of such
copy.’’;
(E) adding at the end the following: ‘‘For
purposes of this subsection, a format shall be
considered obsolete if the machine or device nec-
essary to render perceptible a work stored in that
format is no longer manufactured or is no longer