As posted to CNI-COPYRIGHT by G. Harper; rough HTML added by PFS
Interim version placed here for comment, without permission.
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. Perhaps, this was due in part to the general belief 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.
Nineteen years 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 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 is some controversy about the nature of the notice that is required by subsection (a)(3) to be placed upon copies. This requirement is, in fact, one of the subjects of the White Paper recommendations. 2b Some observers believe 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. Our libraries interpret the provision to require that the notice inform the patron that the material may be protected under Copyright Law. There are no regulations that offer guidance on this point. Hopefully this confusion will end if the White Paper's recommendations are enacted into law.
There is also controversy regarding the applicability of Section 108's protections 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 clear 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 recent 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 would have lead to the evisceration of Section 108's coverage.
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 and furthermore, 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 in facsimile form. Comments in the Legislative History of this Section indicate that the legislators understood facsimile form to mean photocopies and microfilms, although in the absence of those comments, facsimile could reasonably be understood to mean any exact duplication, including electronic duplication. This is explored further below.
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, and then only when a reasonable effort to locate an unused replacement at a fair price has proven unsuccessful.
It has been suggested 6 that the special provisions of Chapter 10 of the Copyright Law addressing digital audio recording issues which were designed to insulate consumers from liability for infringement for making digital or analog recordings for personal use from commercially available audio tapes 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." It may or may not have been the intention of Congress that this section protect more than private in-home recording; nevertheless, where the language employed is reasonably amenable to a particular interpretation, such interpretation should be upheld unless it contradicts clear Congressional intent as evidenced in the Legislative History of the bill that eventually becomes law. Please note that this interpretation, 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.
The rest of Section 108 is medium-neutral. Thus, there are several ways that electronic copies may legally be created under Section 108, for example to transmit a copy electronically for interlibrary loan operations 8 or to provide a copy to a library patron upon request. 9 Electronic copies may also be made to create reserve copies or copies for the library's collection (fair use). 10 The library's collection might become electonic by bits and pieces, over time, especially as works are acquired electronically to begin with, but at this time libraries are not permitted to digitize works without permission merely because electronic storage and retrieval may be a good idea.
This strikes most librarians as extremely unfortunate. Library advocates have called for the amendment of the law to allow for electronic archiving,11 and the White Paper contains specific recommendations that expand the archive right to include digital copies under some, but not all circumstances. 11b It seems very likely that as we progress inevitably towards the digital future where "lending" will come to mean digital access, the ability to convert holdings to electronic media for storage and retrieval purposes will be a necessary correlate. It would, therefor, be advisable for librarians to voice their concerns that libraries be expressly given the right to electonically archive print and other non-digital works as soon as possible.12
In summary, libraries are not permitted to make electronic copies of print or other non-digital media expressly for archival purposes at this time, though the upcoming legislative process may result in some change in this situation. Libraries may make replacement copies of originally electronic works, but then there may not be much need to, given the nature of electronic copies and access to them.13