July 2002
Both academic and special libraries today are creating digital libraries and digital archives from materials owned by the library. Libraries early recognized that it would be possible to make important research materials more available if they could be microfilmed and the microfilm shared with other libraries and researchers. The jump to digital conversion and availability on the web was not a large one for libraries. These digital projects generally have two goals. The first is to preserve the materials by ensuring that the library has a digital copy of such works, and the second goal is to make the materials available to users both near and at a distance. Whether the library confronts copyright problems in developing these projects depends on the ownership of the copyright, the status of the work and somewhat on the distribution of digital copies. Some digital products are for preservation only and the digital version is not made available to users; for other projects wide availability is the main reason the project is undertaken.
Some digital library projects involve digitizing only public domain materials in which the institution or organization has a significant interest. Since this material is not protected by copyright, there is no copyright problem. The library is free to make the digitized public domain works available on an Intranet or on the web.
Other digital library projects involve digitizing unpublished archival materials such as letters, diaries and manuscripts. Frequently, the library did not obtain the copyright in the deed of transfer when it received the artifact. Libraries and archives often own the only copy of the work but not the copyright. Unless the copyright holder specifically transferred the copyright along with the item, the institution does not have the reproduction and distribution rights. The Digital Millennium Copyright Act gave libraries the right to make up to three copies of an unpublished work for preservation, security or deposit for research in another library, and one of these copies may be a digital copy.[1] A digital copy of a copyrighted unpublished work made under this section may not be made available in digital format to the public outside the premises of the library or archives, and thus may not be distributed via the web.
Unpublished works are not in the public domain, however. At the end of 2002, however, a huge number of unpublished works will enter the public domain. Works that were in existence on January 1, 1978, and which remain unpublished through the end of 2002 will enter the public domain at the end of December 31, 2002, or life of the author plus 70 years, whichever is greater. Within a few months, there will be no copyright problem with making many of these works available on the web, because they will have entered the public domain.
If the unpublished archival material consist of that for which the longer term is life of the author plus 70 years instead of the end of 2002, and if the library or archives does not hold the copyright, then before digitizing the work and making it available to the public or users of the library, the library should seek permission of the copyright holder. The author holds the copyright or his or her heirs if the author is deceased. If the library or archives has made a significant effort to locate the author or the heirs but has been unable to do so, it could decide to assume the risk of liability and make the digital work available.
There are also older published materials in which libraries and archives have an interest for adding to digital library collections. The work may be out of print but still under copyright. The library must either request permission from the copyright owner to digitize such works or be willing to assume the risk for digitizing the work and making it available to users. A copyright holder is less likely to grant permission for digitizing a work still protected by copyright if it has any interest in either reprinting it or bringing out a new edition of the work, including a digital version. On the other hand, it is often difficult to locate the copyright holder if the publisher of the work has disappeared or gone out of business. Again, the library or archive may decide that it is wiling to assume the risk after it has exhausted efforts to locate the publisher or other copyright owner.
The 1998 Copyright Term Extension Act added a new subsection (h) to section 108 of the Act, which was intended to reduce the effects of the 20 year term extension. It provides that during the last 20 years of a work’s term, a library, archives or a nonprofit educational institution may reproduce, distribute, display or perform a work in either facsimile or digital form if certain conditions are met. The library must first determine by reasonable investigation that: (1) a copy of the work is cannot be obtained at a reasonable price and (2) the work is no longer subject to commercial exploitation. It may make this determination by contacting the copyright owner who provides notice that neither of these two conditions exist. The statute contains no restriction on making such work available on the web. The exemption does not apply to any subsequent uses by users other than the library or archives that makes the investigation. So, each library or archives that wants to digitize such a work must conduct its own investigation.
Copyright is not an insurmountable problem for digital library projects. A copyright holder may not agree to having her work made available in that format, but many of the works that make up these projects are not copyrighted. Although still under copyright, other works have little risk associated with digitizing them and making them available on the web.