Laura N.
Gasaway *
©
2003
I.
INTRODUCTION
The
preservation of cultural, political and literary works and artifacts
should be
of considerable concern to the American public.
A number of forces have combined to create a threat to the
continued
preservation of this record of our society.
(1) Research libraries across the
country are filled with so called brittle books which are deteriorating
at an
alarming rate. (2) Funding
to institutions that preserve these
works has been seriously reduced.
(3) The federal government has
ordered the removal from government websites of many previously
maintained records,
and the current administration has curtailed the declassification
program for
many others, making these works unavailable to the public.[1]
(4) The longer term of copyright
means that no published works will enter the public domain before the
end of
2018. (5) Modern
digital technology makes it much
easier to digitize the information contained in these works as a method
of
preservation rather than conserving the artifact in which the
information
appears. (6) Digital preservation of
analog works is both more efficient and cheaper than conservation, and
it
provides increased search capabilities.
(7) Many copyright owners have
been hostile to the idea of library preservation of their works even in
microform. (8) Programs aimed at
preservation are viewed with suspicion by the copyright holder
community
because of the systematic nature and scope of such programs. (9) Copyright owners are even more concerned
about digital preservation because it has the potential to provide
greater
access to the work than conservation of the analog artifact and could
result in
total loss of control. (10)
Increasingly, the works acquired by libraries
are in digital format, and publishers and producers are attaching
access
controls to these works that impair a library’s ability to preserve
these
works. (11) Restrictive
license agreements for digital
works may prevent retention of the work after the expiration of the
license and
preclude the ability to preserve the work even though the library has
paid for
it. (12)
Concentration of publishing activities into a small number of
conglomerates and the elimination of so many publishing houses gives
the larger
entities increased market power and the ability to influence
legislation. (13)
Fewer and fewer authors and creators own their own copyrights
today, so
it is the interests of publishers and media companies that benefit from
changes
in the law. (14) There is little
guidance in the law for preservation of works that are originally
digital
works. While many of these forces are
outside the copyright arena, others squarely conflict with copyright
holders
and their rights and interests.
This
article’s
focus on preservation of this record considers whether the commercial
interests
of copyright proprietors should prevail over the long-term preservation
of the
nation’s scholarly, cultural and political history.
The public’s interest has not been well
presented or represented, although library, archives and museum
associations
have tried to make the case for preservation because of its very
importance to
society. Copyright law plays an
important role in this debate, sometimes furthering the ability of a
library to
preserve a work and sometime hindering it.
In discussing the problems with archiving the web, Berkeley
Professor of
Information Management and Systems Peter Lyman said:
In the past, important parts of our cultural heritage have been lost because they were not archived—in part because past generations did not, or could not, recognize their historic value. This is a cultural problem. In addition, past generations did not address the technical problem of preserving storage media—nitrate film, videotape, vinyl recordings—or the equipment to play them. They did not solve the economic problem of finding a business model to support new media archives, for in times of innovation the focus is on building new markets and better technologies. Finally, they did not solve the legal problem of creating laws and agreements to protect copyrighted material yet at the same time allow for its archival preservation.[2]
Libraries
have
long been involved in preserving the world’s scholarly record. There are two types of preservation in which
libraries are engaged, “preservation” is the general term used to
denote both
of these. The first type of activity
under the rubric of preservation more accurately is referred to as
conservation
which is the restoration and preservation of the physical object. The second type of preservation aims only to
ensure that the information the work contains is preserved as opposed
to the
artifact. Conservation of the physical
artifact presents no copyright issues in the analog world since the
activities
involved includes restoring, stabilizing and maintaining the integrity
of the
original binding, stabilization of the acid content of the paper, and
the like. But some works are not
sufficiently valuable
to qualify for expensive restoration work to the artifact itself, while
the
information that the work contains is worthy of preservation. This latter type of preservation conflicts
with copyright law even for analog materials, since preservation of the
information requires reproducing it, almost always into another format. For digital works, both conservation and
preservation may engender copyright concerns.
For example, conserving a digital work could require
circumvention of
technological access controls or restoring date-expiring content in
order to
preserve the artifact. Preservation of
digital information requires reproduction of the work and raises a
number of
copyright concerns.
COPYRIGHT
ISSUES FOR CONSERVATION & PRESERVATION
|
TYPE OF WORK |
CONSERVATION |
MICROFILM PRESERVATION |
DIGITAL PRESERVATION |
|
Analog |
No copyright issue |
Yes, reproduction & multiple copying |
Yes, reproduction, multiple copying &
distribution |
|
Digital |
Yes, license agreement provisions &
circumvention of technological protections |
N/A |
Yes, reproduction, multiple copying,
distribution & license agreements |
A.
Libraries as
Preservers of Copyrighted Works
As
repositories
of the world’s knowledge stored in books, images, motion media and
sound
recordings, libraries have been in the business of preserving these
works from
the earliest times. Early scrolls were
often stored in linen or leather cases to preserve the integrity of the
physical item.[3]
Early monastic libraries chained incunabula to library shelving
as a way
to protect the work although such action did little to preserve the
binding. Many of those early works still
contain the iron rings that were affixed to the covers of the work to
ensure
that it was not removed from the library.[4]
Early printed books endured similar fates, but the ability to
mass
produce works which the printing press made possible often meant that a
damaged
volume could be more easily replaced than conserved, albeit only by
incurring
another charge for the work.
With
the advent
of lending libraries, however, library preservation took on a different
complexion. The concern was not that the
book would be removed from the collection but that the physical
condition of
the work remain sufficiently stable so that readers could enjoy the
work without
undue deterioration of that particular copy.
Additionally, many manuscripts, incunabula and works published
before
the 19th century required conservation to ensure that they
remained
viable as objects or artifacts. Many of
these works were printed on unusual media or had bindings that were
rare and
beautiful. Techniques for preservation
varied through the years, but the library’s intent always was to ensure
that
the work remained available for later readers and scholars. Libraries have played a critical role in the
preservation of the world’s knowledge and in making it accessible.
Most
of the
works that qualified for preservation were rare, or, at a minimum
scarce. One method of preservation that
was widely
used in from the 1920s to 1970s was microfilming, usually on
cellulose-based
film, and then it was discovered that such microfilm developed what is
referred
to as “the vinegar syndrome” or the “measles.”
Spots obscure much of the text and images preserved on that
microfilm. So, many early microfilm
projects had to be repeated and the film reproduced in a more durable
medium.[5]
In the 1970s librarians realized that many of the works printed
in the
19th and early 20th centuries were printed on
acidic
paper that was deteriorating at an alarming rate. It
was clear that only wide scale
preservation could ensure that these “brittle books” would last into
the next
century. A 1987 study concluded that
there were approximately 305 million volumes in
Microfilming
is
one of the oldest established methods of preservation; it may be
defined
as: “the process of reproducing, in
reduced size, the intellectual content of library and archival
materials on
film. . . .Through the process, a master negative (or camera negative)
is
produced; from this negative, a printing negative is generated from
which
service (or use) copies are created.”[8] Libraries tend to use microfilm preservation
when the anticipated use is low and when the need is for durable,
readable
content. Microfiche has typically been
used for materials such as telephone books, government reports, company
reports, and the like. But it is being replaced by CD-ROMs and digital
preservation.[9]
As with other types
of preservation, reproduction is required to create the film or fiche
and
results in making one to three copies, but it also offers many
advantages
ranging from cost effectiveness to resource sharing.
Moreover, it has stood the test of time as a
preservation method. The biggest
disadvantage is that few users really like using either microfilm or
fiche, and
almost all prefer hard copy to microformat.[10]
By
the late 20th
century, preservation techniques had improved and many academic
libraries hired
professional preservationists and installed preservation laboratories. The advent of digital technology offered
improved methods, but not conservation.
A digitized work could be stored on a computer and could
actually be
used to replace the original deteriorating work. Not
only that, but digital versions offered
increased searching capability, the potential for multiple simultaneous
users
and the ability to print or download “perfect copies.”
Although
microfilming of copyrighted works also presented copyright issues, the
shorter
term of copyright that existed prior to the 1976 Copyright Act meant
that the
huge majority of the works preserved in this format had already entered
the
public domain. Thus, there were few
copyright issues associated with such preservation programs. Sometimes a publisher would reissue a work in
microformat and would claim copyright in that work although, in
reality, only
the new material added was even eligible for copyright protection. In other instances, copyright was claimed in
the microform set as a collected work or compilation.
B.
Importance of
Preservation to the Scholarly Community
Virtually every medium of expression is threatened today by the natural forces of deterioration. The destruction of works recorded on paper, film, photographic prints, paint on canvas, phonorecords, video and audio tapes, and even optical and digital disks is proceeding at a pace that threatens to destroy most of the artistic and intellectual works of the past century and a half.[11]
The
scholarly
record of what has gone before is critical to the academy and should be
critical to society in general. However,
those of us who make up the academic, research and scholarly community
are
frequently enticed by the new, the forward looking and ignore the past. “In the academic community, it is far easier
to create than to transform; easier to introduce new networking
capabilities,
electronic mail, and sophisticated retrieval mechanisms than to link
those
capacities in a meaningful manner to the information habits of working
scholars, whose inquiries span decades, disciplines, and formats.”[12]
Copyright
issues involved in library preservation are significant.
The longer term of copyright, life of the
author plus 70 years, means that only works published in the United
States
prior to 1923 are clearly in the public domain, but many of the works
from
1923-1964 are still under copyright and will continue to be protected
until the
end of 2018 for the earliest published of these works.
Many of these materials are in desperate need
of preservation if they are to continue to be viable for use by library
patrons
after the next few decades. Some of them
will be preserved using traditional techniques that conserve the
physical
object, i.e., the copy of the work that the library owns.
This could range from a simple laminating of
the paper covers of a book all the way to full-blown restoration of the
binding
and each page of the work. Increasingly,
however, libraries seek to use digital means to preserve these works
and make
them available to their users.
Because
digital
preservation collides with the rights of the copyright owner, libraries
have
been forced to reevaluate their preservations programs.
Two recent amendments to the Copyright Act of
1976 made it clear that, under certain circumstances, libraries may use
digital
means to preserve an analog work. Use of
the digital copy may be fairly restricted, however.
Those amendments did not deal with the
preservation of works in a library collection originally acquired in
digital
format, however, and librarians are just beginning to address the
preservation
of this new elusive and alterable digital knowledge.[13]
The
experience
of libraries which sought permission to preserve copyrighted works
through
various reproduction technologies has not been good.
Publishers, especially journal publishers,
are especially difficult to locate. One
of the most difficult problems encountered by the Library of Congress
in its
American Memory Project (AMP)[14] has been copyright
permission. In fact, AMP has digitized
only public domain
works or those for which it can obtain permission. Even earlier,
libraries
encountered difficulties with permissions for microfilm preservation
projects
which is why so many of these projects involve only public domain works.[15]
This
article
discusses portions of the Digital Millennium Copyright Act[16]
and the Copyright
Term Extension Act[17]
as they amend section
108 and their
impact on
preservation of analog works. It next
addresses preservation of digital works and concludes with an
examination of
the use of open archives and institutional repositories as a method to
preserve
and make accessible works produced within an academic institution.
II.
THE LIBRARY EXEMPTION
Section
108 of
the Copyright Act of 1976 permits reproduction and distribution by
libraries
and archives that meet certain criteria and under particular conditions. Section 108(a) establishes the criteria that
a library or archives must meet in order to qualify for the entire
library
exemption and details one limitation.
The limitation is that a library may make only single copies of
works
except for preservation purposes, for which, under certain conditions,
the
library may make up to three copies.[18]
The
first of
the three criteria a library must meet in order to qualify for the
library
exemption is that the reproduction and distribution of the copyrighted
work
performed by the library must be made without direct or indirect
commercial
advantage.[19] The precise meaning of the phrase “without
direct or indirect commercial advantage” is not clear.
The matter has never been litigated, and the
legislative history sheds little light.
Publishers and other copyright holders appear to maintain that
if the
library is in a profit-seeking entity, it cannot meet this requirement.[20] The language of the statute makes it clear
that it is the reproduction itself that may not be for direct or
indirect
commercial advantage, i.e., sold for a profit. There is additional
support for
this position in the legislative history of section 108(g)(1); the
House Report
that accompanied the Act 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 the
request is an
isolated and spontaneous one.[21] Later amendments to other sections of the
Copyright Act, however, all seem to insert the words "nonprofit"
before library rather than relying on the section 108(a) definition of
libraries that qualify for the exemption.
This may be evidence that legislators, at least after the
passage of the
1976 Act, now believe that exemptions for libraries outside of section
108 must
apply only to the nonprofit sector.
The
second
requirement a library must meet to qualify for the exemption is that its collection must be open to the public or to
non-affiliated researchers doing research in a specialized field.[22] This criteria may be more easily met by
libraries in nonprofit educational institutions, research organizations
and
public libraries as opposed to profit-seeking entities. Others not open
to the
public may meet this criteria if the library collection is open to the
public
even by appointment for qualified users, such as researchers. Libraries that are not open to any outside or
unaffiliated users are unable to qualify under this criteria.[23]
The
final
criteria a library must satisfy in order to take advantage of the
exemption is
that it must place a notice of copyright on the reproductions made
under
section 108.[24] The reason for this requirement is so that
the recipient of the copy will be alerted to the fact that the work is
copyrighted. The DMCA amended section
108(a)(3) which now reads: “The
reproduction 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.” For years, many libraries had
simply stamped
copies made with “Notice, this work may be protected by copyright” and
is no
longer an option. It is now clear that
the library must include the actual notice that appears on the work.
The
legislative history states that the goal of this particular amendment
was not
to increase the burden on libraries, but that has not been the end
result.[25] What librarians had actually sought was an
amendment that would alleviate the burden of including a notice of
copyright
when the copyright holder failed to do so.
III.
PRESERVATION UNDER SECTION 108 GENERALLY
The
original section 108 contained two
sections that
relate to preservation, section 108(b), which is a true preservation
section,
and 108(c), which is a replacement section for lost, damaged,
deteriorating or
stolen materials. Under these
provisions, libraries were permitted to reproduce a work “in facsimile
form”
for preservation or replacement purposes if certain conditions were met. Whether a digital facsimile qualified as a
facsimile under the statute was debated by both librarians and
copyright
owners, but there has been no litigation
dealing with the preservation sections.
One could argue that a scanned image of a page, in which the
image is an
exact reproduction of a page, is a facsimile since it looks exactly
like the
original page. On the other hand,
digital copies that are not a reproduction of the page clearly would
not be
facsimile copies.
The
DMCA
settles the disagreement and expands the preservation and replacement
exemptions in several 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, further evidence that the DMCA
applies to
more than digital works. “For some
materials and preservation methods, state-of-the-art technique requires
an
"iron mountain" copy, a master copy, and a use copy, with only the
use copy accessible at any one time.”[26] Second, the word “facsimile” was omitted, and
third, the statute specifically permits the copy to be in digital
format.[27] While these three changes broaden the
preservation exemptions for libraries, there are also new limitations. One problem any library preservation
program
encounters is the section 108(g)(1) prohibition against systematic
copying. A strong fair use argument
could be made when the purpose is preservation and the requirements of
108(b)
or (c) have been met, even if the reproduction is systematic, but the
matter is
far from clear.
The
CTEA added
a new section 108(h) dealing with preservation, but it is not
completely
limited to preservation. These three
additions to the library exemption are extremely important to libraries
and to
the preservation of the cultural and historical record of this country.
A.
Section
108(b): Preservation of Unpublished
Works
Under
the
original statute, section 108(b) permitted a library to reproduce one
copy of
an unpublished work in its collection
for preservation, security or deposit for research in another library.
Now the
DMCA changes allow the library or archives may make up to three copies. If the copy that is reproduced is in digital
format, however, that copy may not be “made available to the public in
that
format outside the premises of the library ...”[28] This may actually narrow the exemption
granted prior to 1998 even though a library now may make a digital copy
for
on-premises use. The amendment assumes
that the library places the copy on an intranet or records the work on
a CD or
other digital medium, the use of which will be restricted to the
premises of
the library. But since the library may
also make two analog copies, it could also make those copies and then
lend
them.
Prior
to the
1998 amendment, a library that reproduced an unpublished work under
section
108(b) 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.
Since the new language means that if the work
is preserved in digital format, the digital copy may not be used
outside the
library buildings, it is much more restrictive.
Library associations posited that although the amendment limits
the use
of digital preservation copies to the physical premises of the library,
it is
consistent with the section 108(g) prohibition against systematic
reproduction
and distribution except for interlibrary loan.[29] Moreover, although the legislative history is
silent as to the right of first publication, the restrictions under
108(b) are
also consistent with the right that ensures the author or other
copyright owner
retains the right of first publication for life of the author plus 70
years.[30]
Digital
versions of analog works may be defined as “electronic photographs
scanned from
original documents. A digital image can
accurately render the information, layout, and presentation of the
original,
including typefaces, annotations, and illustrations.”[31] Some text files lack search and manipulation
capability (ASCII) while others that use optical character recognition
(OCR)
programs permit digitally imaged text to be searched and manipulated.[32] Libraries and archives are beginning to use
and urge utilization of digital imaging for preservation in part
because of
this feature but also because users find it far superior to microforms
because
of ease of use.
B.
Section
108(c): Replacement of Published Works
Under
the
original version of section 108(c) of the 1976 Act, a library could
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. Because
108(c) is technically a replacement section, obviously the work must
have been
in the library’s collection before the library can rely on the
exemption to
reproduce the work.
The
ability to
reproduce a work, even one that has become lost, damaged, stolen,
deteriorating
or obsolete, is permitted only after the library 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,”
but the legislative history does provide some
guidance on what constitutes a reasonable effort to locate an unused
replacement. 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.”[33] 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 consult U.S. trade sources such as
retail
bookstores, wholesalers or jobbers. It
that proves unsuccessful, then the library should contact the publisher
or author,
if known. Lastly, it should contact an
authorized reproduction service such as University Microfilms, known as
UMI
(now ProQuest).[34]
There
is no
legislative definition of “fair price,” but 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 (ALA). In 1978, the AAP appeared to posit that
a
fair price was basically whatever anyone charges the library. It defines 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
prevailing retail price is the fair price, or, if the library uses an
authorized reproducing service, it is the price that service charges.[35] The
The
legislative
history offers no suggestion to cover situations 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.
There
are two
important additions to subsection (c) made by the DMCA.
The first mirrors that found in 108(b) and
permits the library to make up to three copies of the work after a
reasonable
effort to purchase an unused copy at a fair price.
If a digital copy is made, that copy may not
be made available to the public in that format outside the premises of
the
library. Under this subsection, it is
not the right of first publication that is at issue, since these are
published
works. The problem may be that making a
digital copy available outside the library would not comply with the
section
108(g)(1) prohibition on systematic copying.
An additional concern may also
have been that a library which places a digital version of a work on
the web is
actually republishing the copyrighted work without consent of the owner
of the
copyright. The requirement is logical
when the original work is in analog format, but the statute appears to
ignore
the possibility that the original work that is now damaged or lost may
have
been acquired in digital format originally.
Surely what Congress actually meant was that if a digital
reproduction
of an analog work was made available, then it could be used only within
the
library premises and not on a campus network or the World Wide Web. But what if the original work was a CD-ROM (a
digital work), 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. The
original digital work could be used outside the premises of the library
and the
new one is a facsimile copy, so it is logical that it also should be
able to be
used in the same way, despite the language of the statute.
The second DMCA amendment to section 108(c)
is also important. 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, “¼if the machine or device
necessary to render
perceptible a work stored in that format is no longer manufactured or
is no
longer reasonably available in the commercial marketplace.”[38] This is a great help for libraries that
currently are dealing with deteriorating recordings on wax cylinders,
8-track
audiotapes, Beta format videotapes, and the like. The legislative
history
indicates that when the only equipment that is available is from a
second-hand
store, it is not “reasonably available.”[39]
If the equipment
is still produced but is extremely expensive, might a library argue
that such
equipment is no longer reasonably
available in the commercial marketplace and thus reproduce the work
under this
amendment? Perhaps so.
C.
Section
108(h): Reproduction During Last 20
Years of the Term
Section
108(h)
was added to the Act by the CTEA.[40] This section permits a library, archives or a
nonprofit educational institution, during the final 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 exist. (1) The work is
subject to normal commercial exploitation.
(2) A copy can be obtained at a reasonable price.[41]
(3) The copyright owner provides notice
that
neither of the above conditions apply 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.[42] The Copyright Office then developed
rules by
which owners or their agents could file notice that the published work
was
subject to normal commercial exploitation or could be obtained at a
reasonable
price.[43] The published rules are accompanied by a form
by which publishers and other copyright owners can file such notice
There
is little
legislative history for this portion of the CTEA; the Senate Report
refers to
competing concerns of institutions that depend on legal but
noncommercial use
of a copyrighted works, especially preservation activities of libraries
and
archives as contrasted with the concerns of copyright owners. The balance struck permits preservation, even
by digital means, but only under certain conditions and if the
requirements are
met.[44]
There is no definition
of important terms such as “reasonable investigation” or “normal
commercial
exploitation.” Perhaps the definition of
reasonable investigation for section 108(c) from the House Report that
accompanied the Act should be used.[45]
For this subsection, however, a reasonable investigation would
likely
also require checking with the Copyright Office to determine whether a
publisher or other copyright holder had completed the forms available
on the
Copyright Office website and filed notice.[46] The following information is required on
the
notice: (1) title
of the work, or if there is no title, a
brief description of the work; (2) name of the author or authors; (3) type of work, i.e., the category such as
literary work, etc.; (4) edition;
(5) year of first publication; (6) year
the work first secured federal copyright through publication with
notice or
registration as an unpublished work; (7) copyright registration and
renewal
numbers; (8) name
of the copyright owner; (9) contact or
entity that the Copyright Office
should contact concerning the notice; and (10)
the person or entity that libraries and archives may contact
concerning
the work's normal commercial exploitation or availability at a
reasonable
price.[47]
There
is little
help even in the rules for determining the reasonable price of a work
to be
reproduced under this section. According
to the Copyright Office, documentation of reasonable price may include
both the
original copyright registration number of the work and any additional
information concerning the work's normal commercial exploitation or
availability at a reasonable price.[48] Despite the rule-making activity of the
Copyright Office and the posting of the forms on its website, not one
single
notice had been filed by a publisher of other copyright owner as of
April 20,
2003. The necessity for a library to satisfy the 108(h) requirements
and the
failure of copyright owners to provide notice to simplify the process
may mean
that few libraries actually avail themselves of the exemption.
During
the
rule-making period, library associations testified that the Copyright
Office
would serve as the single most important resource for libraries in
conducting
their reasonable investigations to determine if the conditions
specified in
section 108(h) exist. Further, they
urged the Office to make notices available on its website so that the
information would be retrievable by libraries conducting such
investigations.[49] The associations expressed concern about
whether the owner of the copyright in a collective work is in a
position to
respond to some of the necessary information required for the notice. For example, how will such owner know whether
an individual contribution to the collective work is subject to normal
commercial exploitation or whether copies may be purchased at a
reasonable
price? “Libraries and archives should
not be required to purchase a copy of a collective work to enjoy the
privileges
of using an individual contribution.”[50] Library associations testified that if a
copyright owner cannot make a copy of a work available either directly
or
through an agent, then the presumption should be that libraries can
take
advantage of the exemption. “For
example, it would be a perversion of the exemption if a copy of a work
exists
only in a library, but the owner, who does not have physical copy,
nevertheless
declares it is subject to normal commercial exploitation or can be
obtained at
a reasonable price.”[51] Since the Copyright Office does not
necessarily retain deposit copies, it is likely that only an academic
or
research library will have the only or one of a very few remaining
copies of
many of these works.
Under
section 108(c) the library’s
reasonable
investigation to determine whether a copy is available at a fair price
applies
only to unused copies. Section 108(h) is
silent as to whether a library or archives must seek even a used copy
prior to
taking advantage of the exemption. Since
the copyright owner receives royalties only on the first sale of a
work, the
second-hand or resale market provides no way to calculate a “reasonable
price.” Library associations stated
that, “Only if the owner is actually marketing a work it physically
possesses,
or recently placed sufficient numbers of copies into commerce, could
the owner
accurately declare that the statutory test has been met.”[52]
Even
outdated
formats of a work may have an impact on what constitutes a reasonable
price. Library associations argued that
the section 108(c) definition of obsolete work should be imported into
the
notice provisions under section 108(h).
“It stands to reason that if the only accessible copies of a
work are in
outmoded formats, then the work cannot be considered subject to normal
commercial exploitation and unless equipment is being manufactured and
sold at
fair price, the library or archive will be unable to use the work on a
reasonably priced basis.”[53]
Section
108(h)
supposedly applies to “orphaned” works where the publisher has
disappeared and
no one has an interest in further commercial exploitation.
In 1987, a study conducted at the American
Bookseller’s convention indicated that most books published in this
country go
out of print in approximately three years.[54] Publishers report that slightly more than 91%
of all book sales occur within the first year after publication.[55] On the other hand, with the production of
books on demand, even out-of-print works can be produced quickly.[56] Is this normal commercial exploitation? It likely means that the only works a
copyright owner will not exploit for the entire copyright term will be
those
unprofitable works which are also likely unpopular – the very works
that are of
no interest to anyone for preservation, scholarship or research.[57]
This
subsection
is broader than 108(c) because it is not solely a replacement section. There is apparently no requirement that the
work reproduced currently be in the collection of the library,
nonprofit
educational institution or archives.
Normally section 108 reproduction is
limited to works currently in the
collection except for providing copies to users through interlibrary
loan. Is this what Congress intended? Since preservation is not the only
recognized purpose for such reproduction under 108(h) but also
scholarship or
research, presumably this subsection can serve as a collection building
section, at least for those works that meet the requirements of (h). To preserve the work, however, it
must have
existed in the collection, but for scholarship and research, prior
ownership of
the work may not be required. Perhaps
this is because the only works for which this exemption applies are
those for
which the author died in 1952 or earlier and their very age gives
libraries an
exemption for reproduction for purposes other than preservation.
The
work may be
reproduced in either digital or analog format, but here the library is
not
permitted to make up to three copies, but instead “a copy.” In all likelihood, a library is much more
likely to produce a digital copy of such a work rather than an analog
copy
after it has satisfied the requirements of the section since the work
obviously
would be sufficiently important to that library or it would not have
engaged in
the time-consuming reasonable investigation, process.
If the library makes a digital copy, there
is no restriction that it be used only within the premises of the
library.
Thus, the library may put the work on the web and apparently share it
with the
world.
What
about
works that have technological access controls?
Suppose that a work was published in a format that is now
obsolete, or
for which the equipment needed to access it is no longer manufactured
but the
author has not been dead for 50 years?
When Congress adopted amendments to the library exemption in the
DMCA,
it recognized that obsolete formats should permit library copying, just
as
readily as lost and stolen works. Library associations argued that with
regard
to the exception during the extended term, libraries or archives should
be
allowed to use works whose format is passé and for which equipment is
not being
made.[58] The rule did not so recognize, however.
The
addition of
section 108(h) also raises a technical question about the operation of
the
entire library exemption. Section 108(i)
states that the exemption does not apply to:
(1) a musical work, (2) a sculptural, graphic or pictorial work,
or (3)
an audiovisual work other than one dealing with the news.
It continues with two exceptions to this
restriction on the library exemption, one of which relates to
preservation. The 108(i) restriction does
not apply to the
preservation subsections (b) and (c).
Thus, libraries may treat pictorial, musical or audiovisual
works just
as they treat other library materials for purposes of preservation. The statute is silent, however, as to whether
108(h) also is exempted. So, during the
final two decades of a copyright term for a motion picture, photograph,
etc.,
may a library exercise the section 108(h) exception?
Would Congress not have added (h) to the
limitations found in (i) if it intended to do so? Perhaps,
or perhaps it was an oversight or
the result of less than careful drafting.
IV.
PRESERVATION OF DIGITAL WORKS
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 executes 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 what
material
will be available to researchers in the future.[59]
What
is digital
preservation? It may be defined as: “… the series of managed activities necessary
to ensure continued access to and preservation of digital materials." [60]
To this end, the
goal of many digital preservation projects is “to maintain the ability
to
display, retrieve, and use digital collections in the face of rapidly
changing
technological and organizational infrastructures and elements.”[61] Three
components have been identified for
digital preservation projects: (1) preservation of the material or its contents
in lieu of the original object, (2)
preservation of the apparatus needed to locate, retrieve and
represent
the material and (3) a knowledgeable community of users.[62] In the 21st century, it is not only the
preservation of the storage medium, but more importantly, the assurance
of
access that is critical to libraries.[63] As is the case with other modern formats,
digital files require a more complex apparatus to be usable: they must
be
usable to machines and to people. This is the reason that digital
preservation
models require so much metadata: one set accommodates machines, the
other is
for people.[64]
Conservation
of
the digital artifact will be useless unless the equipment that permits
the work
to be viewed or heard continues to be viable and available. The reason that libraries conduct both
conservation and preservation activities is to ensure that the work is
available to future generations, so unless the institution can provide
access
to the work, there is little reason to preserve it.
Thus, libraries are less likely to conserve
digital artifacts than to preserve in latter developed formats the
information
the works contain.
Because
digital
works are mostly licensed to libraries and other users, there really is
no
mechanism for preservation. Libraries
are concerned because licensed works do not provide a permanent copy
for the
institution for either access or preservation.
If either party terminates the license agreement, the library is
left
with nothing. By contrast, when
purchasing a subscription to a print journal which also could cease
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 to retain of the electronic product at the
end of
the license period, but this too may prove difficult as technology
changes 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 if the equipment or format has become obsolete.
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.
Although
consideration of preserving the digital record of this country is
rather new,
technology offers the means of not only preservation but access. Preservation of digital works requires
reproduction which may conflict with the rights of the copyright holder
even
before access to the work is provided.
Offering access to such works may
impact not only the reproduction and distribution rights but also the
rights of
public display or performance depending on the type of work involved. There are also serious problems with
archiving digital works, not the least of which is the previously
mentioned
technological obsolescence. Moreover,
the owners of copyright in digital works are so concerned about the
ease of
copying digital works that they are finding more and more ways to
restrict
access to these works. For example,
suppose that a library has acquired a work on DVD and 15 years later,
it has
begun to deteriorate. The library first
tries to purchase an unused copy but finds that it is no longer
available. Now the library is faced with a
dilemma – let
the DVD continue to deteriorate to the point that it becomes totally
unusable
or circumvent the technological control and reproduce the work. The latter clearly violates the section 1201
anti-circumvention provision. Which goal
should take precedence? Preservation or
the inviolability of the copyright holder’s access controls?
If
preservation
is to be done in a serious and organized way, an infrastructure must be
developed to support such activities.
Naturally, this will also require financial resources to support
the
infrastructure. The problems are such
that there are few organized projects.[65] There are some universities that are working
by agreement with particular publishers to archive their digital works.[66]
The Online Computer Library Center (OCLC) and the Research
Libraries
Group (RLG) have created a Task Force on Archiving of Digital
Information to
address a wide range of these concerns ranging from integrity of
digital information
to access.[67] The study conducted by the Task Force
produced a number of interesting conclusions.
(1) Those who create, provide and own digital information must
provide
the first line of defense against the loss of such information. (2)
Digital preservation will require a large infrastructure
significant
enough to support a distributed digital archives system.
(3)
Such a system of digital archives will require a number of
trusted
organizations that are capable of storing, migrating and providing
access to
digital collections. (4)
A certification process to facilitate the
needed climate of trust is essential.
(5) “Certified digital archives must have the right and duty to
exercise
an aggressive rescue function as a fail-safe mechanism for preserving
valuable
digital information that is in jeopardy of destruction, neglect or
abandonment
by its current custodian.”[68]
The
preservation of information resources is so central to libraries and
librarianship that the American Library Association published a policy
on
preservation based on its goal of “ensuring that every person has
access to
information at the time needed and in a useable format.”[69] ALA believes that the preservation
of library resources protects
the public's right to the free flow of information as embodied in the
First
Amendment to the Constitution and the Library Bill of Rights. It has
encouraged
publishers to provide libraries metadata that will facilitate the life
cycle
management of works in digital formats.
More importantly, it urged publishers to deposit digital works
in
repositories that provide for the long-term storage, access and
usability of
the digital content.[70] ALA will work with the publishers of
digital
works to develop guidelines on the preservation of digital information
to help
ensure that such information will not be lost when publishers can no
longer
retain and disseminate it.[71] Thus, collaboration is an important strategy
for dealing with copyright concerns.
Unfortunately, it is unlikely to work for materials published by
smaller
and less organized publishers.
One
way to ensure that important digital works are preserved
is to create a national digital library to act as a clearinghouse and
coordinator of projects aimed at the preservation of digital works. More importantly, it could serve as the
long-term storage and access facility for these works.
This would place the responsibility for this
important task in a single organization and would permit specialized
staff to
develop true expertise in maintaining these materials and making them
available
to the public upon request. The
national digital repository could be a federal government entity or it
could be
one created and maintained by a coalition of research libraries. There are many benefits a single
repository
would offer in addition to expert staff.
For example, the single repository model could centralize the
retention
and maintenance of the equipment for accessing and storing various
digital
formats that would result in a huge cost saving to libraries across the
country. Another benefit is
standardization since the repository would develop all of the standards
for
storage and access of those works.
Moreover, users of these digital works would have one central
place to
go on the web to access these works.
There
are also some difficulties with a single repository
model, however. The main benefit of the
web is that distributed information can be brought together in the
virtual
world, and that is already happening on a monumental level. Even if the single repository model were
adopted, there would need to be some system for the replication of the
contents
of the repository at various remote locations, much as is done with the
Internet Domain Name System’s 13 root servers.
Replication ensures that the data continues to be available even
if the
one central repository is experiencing difficulties with the Internet,
etc.[72] Because of the need for replication, a series
of regional repositories to store and provide access to preserved
digital
content might be preferable to one
national digital repository.
V.
PRESERVATION OF OTHER LIBRARY ARTIFACTS
There
are a
variety of other preservation issues for libraries that relate to
copyright. For example, many libraries
make backup copies of audiovisual works because of the fragility of the
medium. If the use copy becomes damaged
then the library reproduces another use copy from the backup or master
copy. Libraries engaged in this type of
“before the loss” preservation believe that the library paid for one
“use” copy
of the work, and all it is doing is ensuring that it always has a use
copy in
circulation. The impact of this activity
on copyright holders is clear, and it is widely practiced in all types
of
libraries.
The
preservation of motion pictures is also a serious issue.
It is estimated than one half of all of the
feature films produced in this country before 1950 no longer exists. This is due in large part to the fact that
they were stored on nitrate cellulose film which is not only very
flammable but
also gradually turns into dust. Other
films from the 1950s have faded due to the color process used. Film preservation groups both preserve films
by copying them to another medium or restore them to the original
version. The cost is quite high,
approximately $3.00
per foot of film preserved for nitrate preservation.[73] For moving images, digital preservation is
becoming much more common also,[74]
and this requires
reproduction of the work. Should the
film producer’s copyright interest be permitted to override the
public’s
interest in films as a historical record?
Another
preservation issue affects one of a kind items held by libraries and
archives
in their archival collections.
Librarians have often misunderstood the difference in owning the
physical object and owning the copyright in these often unpublished
works. Libraries have behaved as if they
own the
rights and thus have controlled not only access to the object but also
the use
one could make of the works.[75] Section 108(b) and (c) provides the
ability to
preserve the work but does not answer all of the copyright questions
involved.
VI.
INSTITUTIONAL
REPOSITORIES
An
alternative
to traditional library preservation of scholarly material within
academia is
the establishment of institutional repositories which are defined as
“digital
collections capturing and preserving the intellectual output of a
single or
multi-university community.”[76] Individuals within the institution produce
working papers, technical reports and other forms of scholarly work
which may
or may not be published, but in the prepublication stage, the work has
considerable value to other faculty members and researchers as well as
to the
institution. In fact, institutional
repositories can serve as a complement to traditional methods of
scholarly
communications.[77]
More important in
certain disciplines such as science and technology, these works are
sometimes
referred to as “gray literature” because they are difficult to locate
and hard
to manage and preserve.[78] Faculty members at academic institutions all
over the world are posting their research online, most often on their
own
websites, but there are also departmental websites and disciplinary
repositories. Researchers want to share
the results of their work and many believe that making their work
available
online is the best way to expand exposure to their work[79]
and to stimulate
conversation and discussion about their work by others in their
discipline.
There are also benefits to the college or university in creating such
repositories. “Institutional repositories, by capturing, preserving,
and
disseminating a university's collective intellectual capital, serve as
meaningful indicators of an institution's academic quality.”[80] An institutional repository is primarily a
digital archive of faculty works but could also include works by
researchers,
staff and even by students.
An
institutional repository can contain several types of material: (1) teaching materials to include syllabi,
examinations or other materials that the faculty or department wished
to
preserve; (2) student works such as papers, projects, and the like as
well as
electronic portfolios; (3) works about the institution such as annual
reports,
histories, planning documents, etc., (4) computer programs, (5) data
sets, and
(6) visual works such as videorecordings, photographs and art works. In other words, virtually any digital work
that a university wants to preserve and make available can be placed in
the
institutional repository.[81]
The
library’s
role in creating and maintaining such a repository certainly is more
than
custodial and evinces a desire to help mold the future of scholarly
communications from traditionally published works to more dynamic
works. This
is an expansion of the traditional role of libraries but one which
university
and college libraries are uniquely qualified to fill.[82]
Faculty likely
will dedicate themselves to the content layer of the repository but
someone has
to manage the technical and organization aspect, and that is likely to
the be
the university library.[83] Libraries can be expected to:
(1) provide document preparation expertise
which will include document format control and archival standards,
etc.; (2)
help and encourage authors to contribute their research to the
repository; and
(3) provide expertise to increase access to and usability of the data
such as
metadata tagging, authority controls, and the other content management
requirements,[84]
and (4) establish
guidelines for the campus community on what works should be deposited
and how
to accomplish this. Certainly, the
individual authors would own the copyright in their individual
contributions to
the repository, but the collective work or database will surely possess
sufficient originality to qualify for copyright protection on its own. Thus, preservation of works in the repository
could be ensured by the institution without permission from the
copyright
holder.
The
open
archives movement offers another possibility for preservation of and
access to
digital works. An example of this is the
Budapest Open Access Initiative (BOAI) which represents statement of
principle,
strategy and commitment. Signatories to
BOAI include hundreds of individuals and organizations worldwide who
represent
researchers, universities, laboratories, libraries, foundations,
journals,
publishers, learned societies, and kindred open-access initiatives.[85] BOAI states that those works "scholars
give to the world without expectation of payment" should be freely
accessible online without cost to the user. It further posits that the
only
constraint on reproduction and distribution of these scholarly works
should be
author control over the right to be properly acknowledged and cited.
BOAI
proposes
that two strategies be followed. The
first is called “self archiving” which acknowledges that scholars need
tools
and assistance to deposit refereed articles in open electronic archives. Second, alternative journals would be
launched that are committed to open access.[86] Interestingly, for self archiving, Stephen
Harnad, the key founder of the BOAI, encourages scholars to make
earlier
versions of their works available assuming that the penultimate version
and not
the final copy edited version by the journal publisher may be placed in
open
access with impunity without permission from publishers who likely hold
copyright on the article. Clearly,
preservation of these works and access is assured as long as the
scholar him or
herself continues to make the work available.
But this is not necessarily long-term storage, preservation or
access. Therefore, it is difficult to
think of BOAI as true preservation.
VI.
CONCLUSION
All
of this
points to the difficult copyright issues faced by libraries and
archives that
seek to preserve works both in analog and digital format.
Moreover, preservation is useless without
continuing access to this material.
Clearly, less is known about preservation of digital works, and
libraries are struggling with how to handle preservation
technologically but
also with the copyright issues. Perhaps this is natural, especially
since
preservation of digital works is such a new issue for libraries and for
copyright holders, many of whom do not see the value or importance of
preserving the digital works in which they hold copyright.
This article likely has raised as many questions
as it has answered.
The
good news
is that for copyright teachers with an interest in libraries, there is
no
dearth of topics for further exploration, research and scholarship. Among these topics are important questions
concerning preservation.
1. Will
copyright interests ultimately
trump the societal value in preserving the scholarly, literary and
cultural
record?
2. As a
society can we determine a point
at which society’s interest takes precedence over the rights of
copyright
holders?[87]
3. If
so, will society’s interest take
precedence for all works or only for works that no longer have any
commercial
value?
4. How will
commercial value be
determined?
5. How
closely related is commercial value
to potential market for the work?
6. What
impact does the “books on demand”
phenomenon have on a determination of commercial value?
7. Will
the open archives movement make a
significant difference and push copyright holders either to self
archive or to
work with institutions such as libraries to ensure continued
availability of
information?
8. Will
publishers be willing to work with
libraries on major preservation projects for the good of society?
9. What
copyright concerns should be
addressed in order to facilitate collaborative preservation projects?
10. Should a
national repository or a series
of regional repositories for the preservation of digital works be
designed and
promoted?
11. Can government
intervention help to
ensure that both analog and digital works are preserved, or will the
government
be a part of the problem by failing to preserve important government
data in
digital form?
The
preservation of the scholarly, research and cultural record is critical
to a
wide range of researchers. This record
provides the raw material for historians, political commentators, legal
scholars, cultural studies researchers and those from many other
disciplines. Its loss will impact the
work of these scholars for years to come.
More importantly, once the record is lost it cannot be recovered. It is time for Congress and the courts to
consider the public interest in preservation of the record of our
society and
temper the burgeoning control afforded to copyright holders in the
copyright
law.
*
Director of the Law
Library and Professor of Law, University of North Carolina – Chapel
Hill. The
author thanks reference librarian Donna Nixon and interlibrary loan
assistant
Samantha Agbeblewu for their assistance in locating materials for this
Article.
[1]
See Thomas M. Susman, Memo on
Removal or Destruction of Federal Depository Library Documents to
Association
of Research Libraries, available at http://www.arl.org/info/frn/gov/Susman.html.
[2]
Peter
Lyman, Archiving the World Wide Web, at
http://www.clir.org/pubs/reports/pub106/web.html.
[3]
Ellen
N. Brundige, The Library of Alexandria,
at http://www.perseus.tufts.edu/GreekScience/Students/Ellen/Museum.html.
[4]
Matt T.
Roberts & Don Etherington, Bookbinding and the
Conservation of
Books: A Dictionary of Descriptive
Terminology (2001), available
at http://palimpsest.stanford.edu/don/don.html.
[5]
OCLC,
Preservation Resources, Preserving
Microfilm, at http://www.oclc.org/oclc/promo/presres/9138.htm.
[6]
Robert
M. Hayes, The Magnitude, Costs, and
Benefits of the Preservation of Brittle Books, Report #0 on the
Preservation Project, November 30, 1987, at 7.
[7]
Robert
L. Oakley, Copyright and Preservation: A
Serious Problem in Need of a Thoughtful Solution, Commission on
Preservation
and Access (1990), available at http://www.clir.org/pubs/reports/oakley/,
citing Information about the Brittle
Books Program, Commission on Preservation and Access, June 1988.
[8]
Association
for Research Libraries, Library Preservation:
An Administrative Briefing, at http://www.georgesoete.net/preservation.htm
[hereinafter ARL Administrative Briefing].
[9]
Id.
[10]
Id.
[11]
Oakley, supra note 7.
[12]
Patricia
Battin, Access to Scholarly Materials,
American Council of Learned
Societies,
Occasional Paper No. 14 (1990), at http://www.acls.org/op14battin.htm.
[13]
Redmond
Kathleen Molz & Phyllis Dain, Civic
Space/Cyberspace: The American Public
Library in the
Information Age 187 (1999).
[14]
See American Memory Project, at
http://memory.loc.gov/ammem/amhome.html.
[15]
Oakley, supra note 7.
[16]
Digital
Millennium Copyright Act,
Pub. L. 105-304 (1998), codified at various sections of 17 U.S.C.
[17]
Sonny
Bono Copyright Term Extension Act, Pub. L. 105-298, 17 U.S.C. §§ 302-304 (2000).
[18]
17 U.S.C.
§ 108(a) (2000).
[19]
Id. at 108(a)(1).
[20]
As a
shorthand, these are usually referred to as for-profit libraries even
though
the libraries themselves are not profit centers.
[21]
H.R. Rep.
No. 94-1476, 94th Cong. (1975) reprinted
in 17 Omnibus
Revision Legislative History 75 (1977) [hereinafter
House Report].
[22]
17 U.S.C. § 108(a)(2).
[23]
One could
argue, however, that a library not open to outside users but which
would lend
any of its published materials through interlibrary loan meets this
criteria,
but the matter has not been litigated, nor is there any legislative
history to
support such an argument. The net effect
is the same, however, the materials that comprise the library’s
collection of
published works is available to users albeit outside the facilities of
that
library.
[24]
17 U.S.C.
§ 108(a)(3).
[25]
S. Rep.
No. 105-190, 105th Cong., at 35-36 (1998) [hereinafter
Senate
Report].
[26]
American
Library Association, Washington Office, Library Preservation: Changes Incorporated in
H.R. 2281 The
Digital Millennium Copyright Act of 1998 (PL 105-304), at
http://www.ala.org/washoff/preservation.html
[hereinafter ALA Preservation].
[27]
See 17 U.S.C. §§ 108(b)-(c).
[28]
Id.
[29]
ALA
Preservation, supra note 26.
[30]
See Harper & Row Publ. v. Nation
Enter., 471 U.S. 539, 555-60 (1985).
[31]
ARL
Administrative Briefing, supra note
8, citing the Cornell University
Library, at www.library.cornell.edu/preservation/conservation.html.
[32]
Id.
[33]
House
Report, supra note 21, at 76.
[34]
Id.
[35]
Association
of American Publishers, Photocopying by
Academic, Public, and Non-profit Research Libraries 14 (1978).
[36]
American
Library Association and National Education Association, The Copyright Primer for Librarians
and Educators (Janis H.
Bruwelheide ed., 2d ed. 1995).
[37]
Id. at 27. This is
a very logical interpretation of fair
price, since few libraries could afford to purchase a second copy of an
entire
set of books in order to replace a single damaged volume.
[38]
17 U.S.C.
§ 108(c)(3).
[39]
S. Rept.
No. 104-190 (1998).
[40]
The
amendment also renumbered the old (h) to (i).
[41]
One might
question why this section uses the term "reasonable" price rather
than a "fair" price. Is there
a difference? Or was this simply sloppy
drafting?
[42]
17 U.S.C.
§ 108(h).
[43]
37 C.F.R.
§
201.39 (2002).
[44]
Senate
Report, supra note 25. The
majority of the debate concerned term
extension and the fairness in music Licensing Act portion of the CTEA. See
144 Cong. Rec. H9946, 105th Cong. (1998).
[45]
See text at note 33.
[46]
U.S.
Copyright Office website, at
http://lcweb.loc.gov/copyright.
[47]
Id.
[48]
37 C.F.R.
§
201.39 (2002).
[49]
In the
Matter of Notice to Libraries and Archives of Normal Commercial
Exploitation or Availability at
Reasonable Price, Before the Copyright Office Library of Congress,
Comments of
Library Associations on Notice to Libraries and Archives, Feb. 16,
1999, at http://www.arl.org/info/frn/copy/comments.html
[hereinafter Notice Comments].
[50]
Id.
[51]
Id.
Publishers frequently borrow copies of their works from
libraries in
order to reprint or even republish the work.
[52]
Id.
[53]
Id.
[54]
Oakley,
supra note 7, citing Crowther, Quantifying
the Sales Push, Publishers
Weekly, April 8, 1988 at 15. The
mean number of months a book remains in print was reported to be 43.07
but that
included "classics", textbooks, and reference materials that
basically never go out of print. Of the total, about 40% indicated a
life
expectancy of between 31.6 and 41.4 months. Id.
[55]
Id.
[56]
Mary
Minow, Library Digitization Projects and
Copyright, June 2002, at http://www.llrx.com/features/digitization.htm.
[57]
Victor F.
Calaba, Quibbles ‘N Bits: Making
a Digital First Sale Doctrine Feasible,
9 Mich. Telecomm. Tech. L. Rev.
1, 25 (2002).
[58] See text at note 53.
[59]
National
Research Council, The Digital Dilemma:
Intellectual Property in the
Information Age 9-10, 206-10 (2000).
[60]
Kelly
Russell, RLG/OCLC Report on the Attributes of a Reliable Digital
Archive for
Research Repositories, Draft Report. Research Libraries Group and OCLC.
17
April 2001, available at http://www.rlg.org/longterm/attributes01.pdf.
[61]
Cornell
University Libraries, Digital Image Tutorial, at http://www.library.cornell.edu/preservation/tutorial/preservation/preservation-01.html.
[62]
Stephen
Chapman, What is Digital Preservation? OCLC Speakers Papers, at http://www.oclc.org/events/presentations/symposium/chapman.shtm.
[63]
Battin, supra note 12.
[64]
Chapman, supra note 62.
[65]
Commission
on Preservation and Access and The Research Libraries Group, Preserving
Digital
Information: Report of the Task Force on Archiving of Digital
Information, May
1, 1996, at http://www.rlg.org/ArchTF/tfadi.index.htm#fragility
[hereinafter Commission Report].
[66]
See, Yale
and Elsevier Science Plan E-Journal Archive, Feb. 23, 2001, at http://www.library.yale.edu/~llicense/ListArchives/0102/msg00078.html.
[67]
Commission Report, supra note 65.
[68]
Id.
[69]
American
Library Association Preservation Policy, at http://www.ala.org/washoff/preservation.html.
[70]
Id.
[71]
Id.
[72] For a description of replication Oracle 9i Replication: A White Paper, June 2001, available at http://otn.oracle.com/products/dataint/pdf/oracle9i_replication_twp.pdf. The author thanks Professor Greg R. Vetter of the University of Houston for bringing this to her attention.
[73]
The Film
Foundation, Facts about Film Preservation, at http://www.film-foundation.org/facts.cfm.
[74]
See Howard Besser, Digital Preservation
of Moving Image Material? The Moving Image, fall 2001, available at
http://www.gseis.ucla.edu/~howard/Papers/amia-longevity.html.
[75]
See Laura
N. Gasaway, Copyright Ownership and the
Impact on Academic Libraries, forthcoming DePaul – LCA J. Art &
Enter.
(2003).
[77]
Raym Crow, The Case for
Institutional Repositories: A SPARC Position Paper, at http://www.arl.org/sparc/IR/ir.html.
[78]
Roy
Tennant, Institutional Repositories, Libr. J.
(Sept. 15, 2002), at 28, 28.
[79]
Johnson,
supra note 76.
[80]
Id.
[81]
See generally id.
[82]
Crow,
supra note 77.
[83]
Id.
[84]
Id.
[85]
See
Budapest Open Access Initiative, at http://www.soros.org/openaccess/.
[86]
Funding
for the BOAI comes from the Open Society Institute funded by
philanthropist
George Soros. Id.
[87]
Two
recent articles propose that courts should consider time, i.e., age of
the
work, as a part of any fair use analysis
and grant greater fair use rights for older works.
See Justin Hughes, Fair Use
Across Time, 50 UCLA Law Rev.
775 (2003) and Joseph P. Liu, Copyright and Time:
A Proposal, 101 Mich.
L. Rev. 409 (2002).
The length of time after a work was produced would be one of the
fair
use factors.