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Copyright in the LibraryLibrary Reproduction: Archiving |
Libraries were at the center of an intense controversy for several decades preceding the amendment of the Copyright Act in 1976. By the time Congress began to consider codifying the fair use doctrine, it had been substantially interpreted by the courts for over a century. There had not, however, been a single case construing its application to library copying, probably because everyone thought that library copying was a fair use. Representatives of both libraries and publishers had come to an informal agreement regarding the scope of fair use in this context in 1937. 1 Ultimately the stability provided by that agreement deteriorated as a result of at least two occurrences: the rapid change in copying technology in the fifties and sixties and the Williams & Wilkins case 2 in the early seventies.
These events caught both libraries and publishers off guard and neither was satisfied thereafter that their rights were adequately protected solely by reliance upon a vaguely stated fair use doctrine. Over a fifteen year period preceeding amendment of the 1909 Act, several draft proposals were filed as Senate or House Bills, the parties commented upon them, and revisions were offered. Ultimately, Congress enacted both a fair use and a library reproduction provision. A reading of the history of Section 108 would suggest that it was intended to define the scope of fair use in the library context, but the section explicitly states that nothing in it affects the right of fair use under Section 107. This attempted clarification, like most, seems to have raised new, unintended issues.
Almost three decades have passed since Congress enacted Section 108; two Reports of the Register of Copyrights have been issued addressing the question of whether the balance struck between the rights of copyright owners and libraries has been a fair one; collective licensing is more important in academic life (CCC); lawsuits have been settled that may profoundly affect libraries; and technological change has accelerated at a pace that would have been unthinkable just twenty years ago. Actually, given the circumstances, it is amazing that we have been able to get along as well as we have.
Following is a discussion of the library exemption and what it permits. We will first discuss the threshold qualifications for exercising rights under Section 108, then the archiving provision, the provisions addressing patron copies, the relationship between Section 108 rights and contractually assumed obligations and Section 107 rights and finally, interlibrary loan operations. Please keep in mind that activities not expressly permitted by or those expressly excluded from protection under Section 108, may be protected under Section 107.
Not all libraries are qualified to exercise rights under Section 108, though all libraries within The University of Texas System would qualify. Our library reproduction and distribution are without any purpose of direct or indirect commercial advantage as required by subsection (a)(1); our collections are open to the public or to persons unaffiliated with the institutions but doing research in a specialized field as required by subsection (a)(2); and our libraries scrupulously include with each copy made a notice of copyright as required by subsection (a)(3). Failure to meet these requirements could jeopardize a library's rights under Section 108.
There used to be some controversy about the nature of the notice that was required by subsection (a)(3) to be placed upon copies. Some observers believed that an actual copyright notice should be included on each copy, but since many older works do not contain such a notice (works in the public domain by virtue of failure to include the required notice) and since the law has now dispensed with any requirement that a copyright notice be included in order for works to be protected, any interpretation that an actual copyright notice must be included would pose considerable compliance problems. This confusion was clarified in October, 1998, when the Digital Millennium Copyright Act ("DMCA") amended Section 108. The law now clearly states that any notice on a work should be included on a copy of the work. Otherwsie, copies should contain a legend that notes that a work may be protected by copyright law.
There is also controversy over whether Section 108's protections apply to for-profit libraries or libraries operating within for-profit corporations. The House Report discussing the exemption specifically indicates that commercial advantage refers to "the immediate commercial motivation behind the reproduction and distribution itself, rather than to the ultimate profit-making motivation behind the enterprise in which the library is located." 3 Thus, it would appear that the research libraries in our country's corporations were intended to be covered. This was not, however, the understanding of the district court that heard the Texaco case; Judge Leval determined that Section 108 would not apply to Texaco's library because its research was done for profit. 4 Given that nearly all research in this country is done for profit (a fact acknowledged by the Supreme Court in Acuff-Rose 5 in its discussion of the proper way to consider lost profits in the fair use analysis), the Texaco district court's definition of the applicability of Section 108 might have made Section 108's coverage apply to few if any research libraries.
Subsection (b) addresses archiving unpublished materials while subsection (c) addresses archiving published materials. The requirements for the two kinds of materials are different: to make a copy of an unpublished work, a library's purpose must be preservation or security and it must have a copy of the work in its collection; to make a copy of a published work, a library's purpose can only be to replace a copy it has or used to have in its collection, but which copy has been damaged, is deteriorating, lost or stolen or the format of which has become obsolete. Such published works also must be out of print.
It appears that the archiving right is designed to allow libraries to make one-of-a-kind and out of print books, manuscripts and periodicals available to other libraries.
Many librarians believe that the law permits them to make back-up copies of audio and video tape recordings. After all, these media are not very easily protected in a lending environment and are subject to ruin in a very short period of time. Thus, it seems only logical that a prudent librarian would make a copy of the recording for lending, retaining the original for the inevitable time when the lending copy fails to come back or comes back ruined. This intuitive belief, however, is not supported by the plain language of Section 108. The right to archive under subsection (c) (for published works) applies only to replacement of a damaged, deteriorating, lost or stolen copy, or when the format of the recording has become obsolete, and then only when a reasonable effort to locate an unused replacement at a fair price or a device that accommodates the format has proven unsuccessful.
Chapter 10 of the Copyright Law contains provisions that were designed to insulate consumers from liability for infringement for making digital or analog recordings for personal use from commercially available audio tapes.6 It has been suggested that these provisions could apply to libraries and other "consumers" making noncommercial copies, especially for back-up purposes.7 As is often the case, the statute does not define key terms such as "consumer" and "noncommercial." Please note that this interpretation, even if correct, would only allow the copying of musical audio tapes, not video tapes.
The Legislative History of the Copyright Act indicates that Congress believed the archive right [Sections 108 (b) and (c)] would not include the right to convert print and other non-digital media to electronic media for storage and retrieval purposes. In the early seventies such a right might have seemed unnecessary to insure preservation. Today, however, electronic storage seems like a basic necessity for the continuation of life as we know it. Times have changed and so has the law, though not quite like we might have wished. The DMCA revisions to Section 108 permit libraries to make up to three copies although a digital copy can not be made available off the library premises. This limitation implements the idea that libraries should not be able to lend a digital copy, or put another way, that the first-sale doctrine does not apply to digital works.
1 The so-called "Gentlemen's Agreement," 2 J. of Doc. Reproduction 31 (1939).
2 Williams & Wilkins v. United States, 487 F.2d 1345 (Ct. Cl. 1973), aff'd by an equally divided Court, 420 U.S. 376 (1975); the publishers "won" when the case was first tried before a Commissioner at the Court of Claims in 1972, understandably alarming the libraries. Then, the libraries "won" when the case was appealed to the full Court of Claims in 1973, likewise alarming the publishers. Ultimately, the Supreme Court affirmed the appelate decision by an equally divided court.
3 H.R. Rep. No 1476, 94th Cong., 2d Sess. at 75 (1976).
4 American Geophysical Union v. Texaco, Inc., 802 F.Supp. 1 at 27-28, note 1 (S.D.N.Y. 1992). Note that the discussion of Section 108 issues in Texaco is probably dicta in that the court was limited by stipulation of the parties to a consideration of fair use under Section 107. Nonetheless, the court did discuss Section 108 and made conclusions that seem entirely incorrect and quite troubling as a result.
5 Campbell v. Acuff-Rose Music, Inc., 114 S. Ct. 1164, 1174 (1994).
6 Mary Brandt Jensen and Jessica Litman, Re: musical sound recordings, via email on the Center for Networked Information's Copyright discussion list, May 10, 1994. Others supported the idea also.
7 17 U.S.C. Section 1008. "No action may be brought under this title alleging infringement of copyright based on ... the noncommercial use by a consumer of [a digital or analog recording device or medium] for making digital musical recordings or analog musical recordings."
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