LIBRARY PRESERVATION AND RECENT COPYRIGHT ACT AMENDMENTS

April 1999

Two recent amendments to the 1976 Copyright Act relate to the preservation of library materials. The existing Act has two sections that relate to preservation, § 108(b), which is a true preservation section and § 108(c) which is a replacement section for lost, damaged, deteriorating or stolen materials. The Digital Millennium Copyright Act amended these two sections making it clear that a library could, under certain circumstances, use digital means to preserve library materials. The DMCA provisions are a mixed bag for libraries, however. The Sonny Bono Term Extension Act added a new subsection to 108 that expands the preservation right.

Section 108(b) permits a library to reproduce one copy of an unpublished work for preservation, security or deposit for research in another library. Section 108(c) permits a library to reproduce a published lost, damaged, stolen or deteriorating work after the library makes a reasonable effort to obtain an unused copy at a fair price. The statute does not define fair price but the legislative history does detain 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. Both sections thus required that the work currently be in the collection of the library or that it was there but was not lost. Both sections stated that a library could make a “facsimile copy.” There was some disagreement as to whether a digital copy could qualify as a facsimile.

The new amendments expand these rights in a couple of ways. First, no longer is the library 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 a digital one. While these three changes broaden the rights a library may have to preserve works, each section also contains a new limitation. If the copy that is reproduced in digital format, the work may not be “made available to the public in that format outside the premises of the library.” This actually narrows the rights.

Prior to the amendment, a library that reproduced a work under these sections could treat the reproduction just as it did the original work. It could loan it to users, loan it through interlibrary loan, and the like. This new restriction means that the work cannot be used outside the library building which is much more restrictive. It would have been better if the statute had been drafted to say that if the work were digital and was available on the library’s network, then it could be used only within the premises. A library could create either a photocopy or a CD-ROM copy of a lost work, which is a digital copy. The library could treat the photocopy as if it were the original and loan it to users for use outside the premises; the CD-ROM copy, however, would be restricted to in-building use. To many librarians, this does not make much sense.

Section 108(c) does have an important new addition dealing with obsolete formats. In addition to lost, damaged, stolen or deteriorating works, the amendment added “or if the format in which the work is stored has become obsolete.” The library must still make a reasonable effort to determine whether an unused replacement can be found at a fair price. The amendment then details when a format may be considered obsolete, “¼if the machine or device necessary to render perceptible a work stored in that format is no longer manufactured or is no longer reasonable available in the commercial marketplace.” This is a great help to libraries that 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 longer reasonably available in the commercial marketplace.

The Term Extension Act added a new section to the Act, a new § 108(h) and renumbered the old (h) to (i). 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 these factors exist. (1) The work is subject to normal commercial expectation. (2) A copy can be obtained at a reasonable price. (3) The copyright owner provides notice pursuant to the Register of Copyright Regulation that neither of the above conditions apply. Further, the exemption provided by this subsection does not apply to any subsequent by users other than the library.

This final subsection is of very limited value to a library. It is likely that the only libraries which will take advantage of this subsection are large academic research libraries. At this point, the work is already at least 50 years old and probably much older, depending on how long the author lives after producing the work. Then the last restriction that the exemption does not apply to any subsequent users – what does this mean? Does it mean that library users cannot use the work so preserved? Surely not. Does it mean that the library can make the digital copy available on the World Wide Web? Who knows? It should so provide since the library will have already verified that the work is not subject to commercial exploitation.

Libraries and archives are grateful for the expansions of the preservation sections of the Act. The new limitations, however, may make those sections unworkable for many libraries.