iii. libraries and digital copying
many of the value differences between copyright holders and librarians are highlighted by the various exemptions to the copyright act. section 108, which provides certain exemptions for libraries vis-à-vis the rights of the owner of the copyright, is particularly relevant to this discussion. in addition to the library exemptions, libraries also have fair use rights.[107]
a. eligibility for the library exemption
section 108(a) details the conditions under which a library or archives is eligible for the library exemption. first, the section permits making only single copies of works except for preservation purposes, when, under certain conditions, the library may make up to three copies.[108] second,
Tiffany Novo, the reproduction and distribution must be made "without direct or indirect commercial advantage."[109] the meaning, of this phrase has never been litigated, and the legislative history is not abundantly clear. it is in this requirement that evidence of the values conflict is evident: what does “without direct or indirect commercial advantage mean”? publishers say that if the library is in a profit-seeking entity, the library cannot meet this criterion. librarians do not accept this interpretation of the words of the statute. they believe the statutory language means that it is the reproduction itself that may not be used for direct or indirect commercial advantage, i.e.,
Tiffany Bracelets, sold for a profit. there is additional support for this position in the legislative history discussing section 108(g)(1); the house report states that even a library in a for-profit entity may reproduce an article for a user to use in her work as long as it is an isolated and spontaneous request.[110] therefore, if the library provides document delivery services to its users, and, even if there is a fee charged for the service, it can argue that there is no direct or indirect commercial advantage if that fee represents only cost recovery. instead, it is revenue neutral and there is neither a commercial advantage nor a disadvantage. however, later amendments to other sections of the copyright act all seem to insert the words "nonprofit" before library, which offers some evidence that legislators, at least after the passage of the 1976 act, considered exemptions necessary for libraries to apply only to the nonprofit sector.
the third requirement is that the library's collection must be open to the public or to non-affiliated researchers doing research in a specialized field.[111] certainly many libraries in nonprofit educational institutions as well as public libraries meet this criterion. for other libraries, this might be met even if the collection is not open to the public generally but only by appointment for qualified users, such as researchers. libraries that are not open to any outside users have a more difficult time qualifying under this criterion. librarians likely would argue that a library not open to outsiders but which lends any of its published materials through interlibrary loan also qualifies for this exemption; publishers likely disagree, but the matter has never been litigated. the fourth and final requirement concerns notice of copyright on copies the library reproduces.
b. notice of copyright
notice of copyright is a term of art in copyright law: it consists of three elements: (1) the word "copyright," the abbreviation "copr." or a "c" in a circle; (2) the year of first publication; and (3) the name of the copyright holder.[112] under the 1909 act, an owner lost her rights if she published a work and failed to include such notice on copies of the work and did not give actual notice of copyright.[113] the more author-friendly 1976 copyright act softened the automatic loss provision. an author did not lose his copyright for any accidental omissions of notice if, during the first five years after publication, only a small number of copies had been distributed without notice, and if he later tried to correct this mistake.[114] when the united states joined the berne convention in 1988,
Tiffany Co Rings,[115] notice of copyright was dropped as a formality, and today, placing notice on protected works is voluntary. librarians generally regret this chance in the law. professional librarians and users depended on the notice of copyright to differentiate between works in which the owner claimed rights and those works that were in the public domain. it seems that the burden on the copyright holder was slight in comparison with what copyright notice did for the public in differentiating works in which someone claimed rights from those in the public domain.
throughout section 108,
Tiffany Wedding Rings, libraries that reproduce works under the exemptions are required to put a notice of copyright on the copies they make. the policy behind this requirement is to alert users that although the library was able to make a copy of a work for them, the work is not free of copyright restraints. within the library community, there continues to be debate over the meaning of "a notice of copyright." to the copyright holder community,
Tiffany Engagement, notice of copyright is a term of art in the law, and most copyright lawyers believe that it meant the library should include the three traditional elements that comprise notice of copyright under section 401(b) mentioned above. some librarians argued that a library should simply stamp photocopies and other reproductions with the american library association recommended statement "notice: this work may be protected by copyright."[116] despite this on-going debate, the matter has never been litigated. many libraries have religiously used a stamp containing the ala recommended wording, while others had a stamp made with ©, _____, 19_ or 20_. then library staff members would fill in the name of the owner and the year of publication on copies it reproduced.
the digital millennium copyright act[117] amended section 108(a)(3), which now reads: "thereproduction and distribution of the work contains a notice of copyright that appears on the copy that is reproduced, or includes a legend stating that the work may be protected by copyright if no such notice appears on the work." thus, for libraries there no longer is any option for the content of "a notice of copyright." the library must include the notice that appears on the work. this can be done by reproducing the page that contains this notice by writing all of the information on the copy or by creating, a rubber stamp with (©, _______ (for copyright owner), _____ (for year published) and filling in the notice information as it appears on the work. the only instance in which the stamp or legend "notice: this work may be protected by copyright" may be used now in lieu of the actual notice is when the copyright holder does not place a notice on the work.[118] this is not exactly what librarians had hoped for; librarians had sought an amendment that would alleviate the burden of including a notice of copyright when the copyright holder failed to do so. it is likely that the amendment relates more to the new copyright management information provisions[119] than it does to providing relief for librarians. although the legislative history states that the goal was not to increase the burden on libraries, that has not been the end result.[120]
the amendment also has implications for the world wide web. while webpages are copyrighted, often the developer does not include a notice of copyright. contrary to popular opinion, publishing a webpage without notice does not place the page in the public domain. when printing or reproducing webpages for users, according to the newly revised statute, librarians must either print the page containing the notice of copyright or stamp the reproduction with "notice: this work may be protected by copyright" if there is no notice on the webpage.
c. preservation
the digital millennium copyright act (dmca) amends the preservation and replacement sections of the library exemptions. the sonny bono term extension act also added a new subsection to 108 that expands the preservation right. both of these amendments relate to digital copying by a library, which copyright holders have iong said was not permitted.[121]
there are two sections that relate to preservation: section 108(b), which is a true preservation section; and section 108(c), which is a replacement section for lost, damaged, deteriorating or stolen materials. the dmca amended these two sections making it clear that a library can, under certain circumstances, use digital means to preserve library materials. further, these amendments were not applicable only to digital works, but also to traditional works. the 1976 copyright act always permitted libraries to reproduce works for preservation or replacement purposes if certain conditions were met. the dmca amended these provisions to provide for meeting national microfilm standards and to make it clear that digital means might be used for preservation, but it also added an additional restriction for works preserved digitally.
under the original statute, section 108(b) permitted a library to reproduce one copy of an unpublished work for preservation, security or deposit for research in another library. section 108(c) allowed a library to reproduce a published lost, damaged, stolen or deteriorating work after the library made a reasonable effort to obtain an unused copy at a fair price. the statute did not define fair price but the legislative history does describe what a reasonable investigation might entail. it would require recourse to commonly known u.s. trade sources, such as retail bookstores, jobbers, and wholesalers; contacting the copyright holder or author, if known, or using an authorized document delivery service.[122] both sections further required that the work either currently be in the collection of the library or if not, that it had been there at one time. both sections stated that a library could make a "facsimile copy" when the conditions had been met.[123] there was disagreement about whether a digital copy could qualify as a facsimile. many librarians maintained that digital copies, which scanned the page and represented an exact copy of the page were facsimiles; publishers steadfastly claimed that digital copies were not facsimile copies at all.
the dmca really terminates the disagreement. it expands the preservation and replacement exemptions in several ways. first, the library is no longer limited to making only one preservation copy of a work. now it may make three copies, which complies with national microform standards. second, the word "facsimile" was omitted, and third, the statute specifically permits the copy to be in digital format.[124] while these three changes broaden the preservation exemptions for libraries, each subsection also contains a new limitation. if the copy that is reproduced is in digital format, the digital copy may not be "made available to the public in that format outside the premises of the library ...”[125] this may narrow the library's rights even though a library now may make a digital copy for on-premises use. however, the library could also then make a printed copy from that digital copy and loan the printed one since it is allowed to make up to three copies of a work. prior to the amendment, a library that reproduced a work under these subsections could treat the reproduction just as it did the original work. it could lend the reproduction to users, provide it through interlibrary loan, and the like. this new restriction may mean that if the work is preserved in digital format, it cannot be used outside the library buildings, and this is much more restrictive. surely what congress must have meant was that if the reproduction was digital and was available on the library's network, then it could be used only within the premises and not on a campus network or the world wide web. in using the term "digital copy" congress may actually have narrowed the exemption for works that were originally in digital format. for example, if the original work was a cd-rom, which now is lost and is not available at a fair price, a library may create another cd, which also happens to be a digital copy. but the ianguage of the statute says that digital copies cannot be used outside the premises even if the original was a digital copy that could have been outside the premises of the library. this is more restrictive than the previous version of the statute, and likely is not what congress meant to accomplish by the amendment. did conflicting values lead to this strange result?
the dmca amended section 108(c) in an important way. in addition to applying to lost, damaged, stolen or deteriorating works, the amendment added "or if the format in which the work is stored has become obsolete." the amendment then explains when a format may be considered obsolete,"...if the machine or device necessary to render perceptible a work stored in that format is no longer manufactured or is no ionger reasonably available in the commercial marketplace."[126] this is a great help for libraries that currently are dealing with deteriorating 78 rpm recordings, beta format tapes, and the like. thus, if the equipment is still produced but is extremely expensive, a library might determine that it is no ionger reasonably available in the commercial marketplace and thus may reproduce the work under this amendment. this was a chance that really benefits libraries and their users where there appears either to have been no values conflict with publishers and producers or where the groups were able to reach agreement on this issue before congress.
even when a work becomes lost, damaged, stolen, deteriorated or obsolete,
Tiffany Nyc, the library may reproduce it only after it determines by reasonable investigation that an unused copy may not be obtained at a fair price. this applies to all types of works, including audiovisual works. a library is not required to search the used book or videotape market in order to locate a replacement volume or item. the statute does not define key concepts such as "reasonable investigation" or "fair price." nor is there any time limit placed on how long a librarian should search for an unused replacement. the legislative history does provide some guidance on what constitutes a reasonable effort to locate an unused replacement, however. according to the house report, "the scope and nature of a reasonable investigation to determine that an unused replacement cannot be found will vary according to the circumstances of a particular situation."[127] it goes on to state that in the ordinary course of events, a library that seeks to replace a damaged, deteriorating, lost, or stolen work would first approach u.s. trade sources such as retail bookstores,
Tiffany Heart, wholesalers or jobbers. if that proves unsuccessful, then the library should contact the publisher or author, if known. lastly, it should contact an authorized reproduction service such as umi.[128]
the house report does not define "fairprice." there are two published definitions of fair price, one from a publication of the association of american publishers (aap) and another from the american library association. a values conflict is clear in the contrast between these two definitions. in 1978, the aap appeared to posit that a fair price was basically whatever anyone charged the library. it defined as fair price the latest suggested retail price, if the work is still available from the publisher. if the work is not so available, the fair price was defined as the prevailing retail price, or, if the library uses an authorized reproducing service, it was defined as the price that the service charged.[129] the ala publication[130] uses a three-part definition of fair price. first, a fair price is the latest retail price, if the work is still available from the publisher. (this squares with the first part of the aap definition). second, the fair price of a reproduction is the cost as close as possible to the manufacturing costs plus royalty payments. while this is more helpful in determining whether umi or another authorized reproducing service's price is a fair price, it is not without problems either. authorized reproducing services simply quote a flat price to the library with no division of the charges into manufacturing costs versus royalty payments, so there is no way that a library can use this part of the definition to help it make a decision about whether a price is fair. the third part of the ala definition deals with the loss or damage to one volume of a multi-volume set when single volumes are not available for purchase. the ala states that it could be argued that paying, a full set price in order to replace one missing volume from a set is not a fair price.[131]
what is less clear is what happens when the stolen or damaged material does not comprise an entire volume but instead is only an article or two missing from a bound periodical volume. surely, in this situation the librarian should be able to make a reasoned judgment about how much investigation to do and could determine that there is no fair price to replace the article missing from a bound volume. most librarians would then simply reproduce the article and insert the photocopy into the bound volume.[132] determining what constitutes a fair price is left to the judgment of the librarian since there is scant guidance in this circumstance. thus, librarians must use their best judgment in making the determination. concomitantly, librarians should ensure that they are being fair to the publisher, which has a legitimate right to profit from its products when they are available for purchase at a fair price.
there is another very common preservation activity practiced by many librarians of all types, which reflects a values conflict. when a library purchases videotapes for its collection, especially very expensive tapes such as those from the american management association, it is common practice to duplicate the videotape so that the library has both a use copy and a preservation or master copy. to many librarians, this supports the core value of information to the people. the tape was purchased and it should be available to users. if it is damaged, its availability is compromised; therefore,
Cheap Tiffany Jewellery, the reproduction makes sense. to the copyright holder, and indeed likely under the statute, this is an infringement of their reproduction right, although one might be able to make a fair use argument for such reproduction. video producers may grant permission for such duplication or they may charge for the right.
the term extension act added another subsection to the act, a new section 108(h).[133] this section permits a library or a nonprofit educational institution, during the last 20 years of a published work's term, to reproduce, distribute, display or perform in either facsimile or digital form, a copy of a work for purposes of preservation, scholarship or research. in order to do this, however, the library must by reasonable investigation determine that none of the following factors exists: (1) the work is subject to normal commercial exploitation; (2) a copy can be obtained at a reasonable price;[134] (3) the copyright owner provides notice that neither of the above conditions applies according to regulations promulgated by the register of copyrights. further, the exemption provided by this subsection does not apply to any subsequent uses by users other than that library.[135] finally, when a digital copy is made as the preservation copy, there is no restriction that it be used only within the premises of the library.
because of both the age of the material and the scope of the conditions that must be satisfied, this subsection is of limited value to many libraries. it is likely that the only institutions that will take advantage of this subsection are large academic research libraries. this subsection applies only to works that are already at least 50 years old and probably much older, depending on how long the author lives after producing the work, and thus demand for the work likely has already declined or ceased entirely. the purpose of this amendment was to ameliorate the effect of term extension on libraries and library preservation. libraries and archives are grateful for the expansions of the preservation sections of the act; however, the new limitations may make those sections unworkable for all but the largest academic and research libraries.
libraries view as one of their missions the preservation of the world's knowledge and cultural artifacts. the library exemption as amended deals fairly well with preserving materials that were not originally in digital format. preserving electronic information is more problematic, however, and many digital works simply are not being preserved either by the publisher or by third parties such as libraries. even when a library signs a license agreement that gives users access to a work, the library may not have the right to preserve it in any way. there is great concern about the impact of this on the cultural record and on what records will be available to researchers in the future.[136]
because digital works are generally licensed rather than sold to libraries and other users, there really is no mechanism for preservation. libraries are concerned because licensed works do not provide a permanent copy. if either party terminates the license agreement, the library is left with nothing. but when the subscription to a print journal is terminated or the journal ceases publication, the library still possesses the volumes covered by the subscription period. this is not true for licensed digital works. libraries are beginning to negotiate for retention of the electronic product at the end of the license period, but this too may prove difficult as technology chances over time. the library may be able to retain the work in electronic format, but it may not be able to access the work and use it. even if the library acquires the right to convert the work to newer platforms, it may just not be worth the effort to accomplish the conversion, especially for highly technical and scholarly works with a limited audience. law libraries have reported purchasing some cd-rom products, which included a code that made them unreadable after a certain date. the purchase agreement did not mention any expiration date at all, nor was there any actual notice to anyone that they would expire and become unusable.[137] clearly,
Unified Contact Center Enterprise Hosted ICM IVR PG (GED-125) - Cisco Developer, this causes conflict between publishers and libraries. the same is proving true of works distributed on the web. some journals are available on the web for only 45 days because the publisher does not view the website as an archive. the text is simply removed from the web after a certain period. thus, to ensure continuing access, the library would have to print out the journal and bind it or reproduce it as a digital file.[138]
d. copies for users
the sections of the act dealing with reproducing copies for users were not amended by the dmca. however, many of the problems between publishers and librarians arise under sections 108(d), (e) and (g) that concern providing copies to users and relate to values conflicts. use of the term "document delivery" to encompass all of the activities that a library performs to provide copies in response to user requests has caused some difficulties with the publishing community primarily because of commercial document delivery services. which must pay royalties for this activity. a library, however, may simply call all activities that provide works to users as document delivery, such as delivering the original volume, obtaining original volumes for the patron through interlibrary loan, making single copies of articles from its collection in response to a user request, getting a reproduction via interlibrary loan, obtaining copies from an authorized document delivery service[139] and providing copies at the request of external users.[140] because of differing values, the groups have very different views of these activities.
section 108(d) states that the section's exemptions from a copyright holder's rights of reproduction and distribution apply when the user requests no more than one article from a periodical issue or one chapter from a book or other collective work.[141] the single article from a journal issue restriction has been a problem for some libraries when the user requests more than one article from an issue or even a copy of an entire symposium issue of a journal. libraries, however, have learned to deal with this by either restricting its copying to one article per periodical issue or by paying royalties for copying more than one article in the journal issue for an individual user. copies made under section 108(d) must become the property of the user and the library must have no notice that the copy will be used other than for typical fair use purposes such as private study, scholarship or research. additionally, the library must place on the order form and on a sign located where the orders are placed, the register's warning:[142]
values conflict
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