Follow the © symbol to the ILS 604
class page.As posted to CNI-COPYRIGHT by G.Harper; rough HTML added by PFS
Interim version placed here for comment, without permission.
In the last few years much concrete progress has been made towards describing and understanding the inevitable but seemingly elusive digital future. Researchers in the fields of library and information science and engineering and computer science are experimenting with projects designed to answer a myriad of questions: what is a digital library; how will patrons use electronic information; how can we keep track of who uses what; how can we compensate authors; how should digital information be organized and indexed; what will be the role of libraries; what will be the role of publishers; what methods of distribution are most effective; how do people find the information they need in an online environment; how can a digital library facilitate collaboration?
University of Texas libraries can and should participate in such experimentation. Every project adds invaluable knowledge upon which the next projects will be based. There are, of course, few answers yet and issues such as those raised by copyright may seem discouraging. Nevertheless, the only effective way to derive answers to questions about digital libraries is to start down the path towards creating them.
In the spring of 1994, the National Science Foundation, ARPA and NASA announced a Digital Libraries Initiative to which many interdisciplinary teams responded world-wide. In June of 1994, the first Digital Libraries research conference was held at the Texas A & M University to take advantage of the work that had been done in response to the NSF/ARPA/NASA announcement. The proceedings of Digital Libraries '94 describe more than 30 exciting projects. Digital Libraries '95 proceedings are equally impressive. Progress made in the development and practice of digital libraries will have profound effects upon the issues discussed in other parts of this series, although it is impossible to know what those effects might be.
First, how does a library legally lend materials today?
Section 109 permits the owner of a lawfully made copy to dispose of it by lending or any other means. This is called the First Sale Doctrine because it permits copyright owners to control only the first sale of a work. This is the basic legal foundation of our public library system. It also allows book owners to sell their books at garage sales without permission from or payment to the copyright owner.
This right to dispose of a copy does not include the right to make more copies. If copies must be made to facilitate lending, they are typically authorized by Sections 107 or 108, or by the copyright owner. Currently, libraries make copies of print materials for other libraries's patrons (interlibrary loan), for their own patrons (research copies and reserve copies) and for archival purposes (preservation and replacement). The right to make copies under Sections 107 and 108 in the print environment is thus subsidiary to the more fundamental lending right under Section 109.
According to the authors of the White Paper, the distribution right libraries enjoy for print works will not exist for electronic works because electronic distribution requires that a copy be made. 1 That copy must be authorized somewhere else in the law or by the owner before it can be distributed. The right to distribute thus becomes entirely dependent upon authorization and the support role for Sections 107 and 108 (and other sections as appropriate) may have to expand dramatically.
It may have been reasonable to characterize the copies made in the course of transmission as "incidental" and to conclude that copies incidental to the legitimate exercise of the distribution right should be fair use. There is some support in case law for this. 2 The White Paper did not suggest or acknowledge this possibility, however, but concluded instead that libraries will not have the right to distribute digital works unless the necessary copy is specifically authorized by law (ie, this particular copy is a fair use copy, rather than all copies made incident to transmission are fair use copies) or by the owner. 3
Licensed works. But in fact, depending on authorization to distribute may not pose a problem in many cases since most digital works are licensed and permission to distribute such works is addressed in a license agreement. License agreements vary tremendously, but most will address copyright issues in some way or another. For example, many licenses will:
Practically speaking, contractual agreements may replace specific provisions of copyright law as the immediate source of authority to use and distribute digital works. This possibility should alert us to pay more attention to such contracts and more carefully negotiate their terms. But what about the works in the library that for one reason or another are not made available digitally by their owners?
The White Paper proposes that Section 108 be amended to give libraries the right to digitize some, but not all non-digital works: those that are lost, stolen, deteriorating or damaged, so long as an unused copy of the work is not available for a fair price. 4 This replacement right applies to out of print works in the print environment. In the digital environment, however, it is not clear what an unused copy is. Will this statutory language be interpreted to mean any copy? If so, then if a digital copy is available anywhere for a fair price, the library wishing to replace its copy will have to point to the already existing digital copy instead. This is certainly efficient, so long as the digital copy remains available.
Now suppose for a moment that one of our libraries is the first to digitize a particular work under this proposed replacement provision; what may the library do with its digital replacement copy? Although we are assuming that the owners of these works are not making them available electronically, permission from the owner to make and distribute copies may still be an option. Otherwise, Section 108(d) authorizes distribution of single articles, chapters or other small parts of works upon request of a patron, and Section 108(e) authorizes distribution of entire works upon request, so long as no other copy is available at a fair price. But the distribution provisions of Section 108 do not apply to pictorial or graphic works (except as adjuncts to other works), musical works, sculptural works or audiovisual works (except news programs). Those, presumably, could only be distributed if the copy made during distribution was authorized by another section of the law (probably fair use, perhaps the audio home recording provision for musical works) or by the coypright owner.
How will this work? How will people know about the existence of the digital copy of the work? Could we post it somewhere, for example, on the Web? If we do, the act of accessing the work is itself a request by the patron for a copy that is automatically fulfilled. Sounds good, but currently requests are handled personally and records are kept as required by the CONTU Guidelines. This helps to assure compliance with the limits on distribution permitted by fair use and Section 108. But since our right to digitize the work was predicated on the fact that no one else had made it available for a fair price, we would have the right to distribute whole works under 108(e). The CONTU Guidelines do not even apply to such distributions.
Works that seem to fall between the cracks and other troublesome issues like the cost of all these authorizations. So, libraries have the right to distribute works acquired digitally pursuant to contracts; libraries may soon have the right to create and distribute digital replacements under Section 108(d) and (e). And libraries have for some time had the right to distribute digital copies of any work requested pursuant to Sections 108(d) and (e), unless excluded by Section 108(h) (as they do when using Ariel to respond to such a request). But it does not seem that libraries could make most of the nondigital works in their collections available electronically without owner authorization. Perhaps the owners of most works will be sufficiently motivated to make their works available electronically to keep this category of "digitally unavailable works" small. But wait a minute; even if owners rush to authorize digital conversion of everything they own, haven't the libraries already paid copyright owners once for many of these works (a price that includes a surcharge for all the copies that owners expect libraries will make), and should they have to pay again because an activity (reading or browsing or access) that once did not involve a use of copyright (copying) now inherently does?
The White Paper concludes that the First Sale Doctrine does not apply to electronic works, but it does not discuss the profound implications of this change for library operations. Perhaps it will be of no consequence ultimately once all works are acquired digitally to begin with under licenses that authorize distribution. For the moment, however, there are significant gaps in the legal authority to make works available electronically to the public and important questions about the costs. Certainly this was worth a mention.
For these reasons, libraries must be involved in the upcoming legislative hearings where Congress will debate the White Paper recommendations. It is not too late to be heard.
Since the focus of this article is lending, the discussion includes only archival rights respecting published works, which are the works most typically lent by libraries. The archive right generally, including unpublished works, is discussed more fully in Library Reprography: Archiving.
Follow the © symbol to the ILS 604
class page.