MAKING BACKUP COPIES
Under what conditions may a librarian make a backup copy of a copyrighted work? This is a frequently asked question, especially regarding DVDs and music CDs. The Copyright Act permits a librarian to make a backup copy of some types of works, and it allows individuals to make backup copies of some works for personal use. It does not, however, provide a broad permission for libraries to create backups of literary, musical or audiovisual works.
Everyone, including libraries, may make a backup copy of a computer program, defined in the statute as “…a set of statements or instructions to be used directly or indirectly in a computer to bring about a particular result.” When the Copyright Act was being debated, Congress identified two matters that were too difficult to deal with directly, so it appointed the National Commission on New Technological Uses of Copyrighted Works (CONTU) to do so. These two issues were interlibrary loan and computer programs and databases. CONTU recommended the very first amendment to the 1976 Act which was a new section 117, enacted in 1980.
The owner of a copy of a computer program may make another copy of that program in two instances, according to section 117. The first is when it is an essential step to utilize that program in conjunction with a computer. This might mean that in order to use the program, it must be copied to one’s hard drive. In the 1980s it meant that one might have had to make a copy in order to convert the program from one computer language to another or to convert the disk size so that the program could be used in a computer. The second instance in which the statute permits the owner of a copy of a program to make a copy of it is for archival purposes. So, a backup copy is permitted. Unfortunately, section 117 applies only to computer programs. However, after the 1998 Digital Millennium Copyright Act that amended the copyright statute, defeating any technological control that controls access to a computer program in order to make even a legitimate backup copy is infringement. Computer games almost always have copy protection built in, and defeating the controls would be infringement. DVDs are encrypted, another type of technological control.
Many librarians have long assumed that it was permissible to make backup copies videotapes since they are so easily damaged, and the library needed to create a master copy from which it could duplicate additional copies if the circulating copy became damaged. DVDs have proven to be even more fragile than videotapes; so librarians have felt even more pressure to create a master copy as a backup. Moreover, the technology to duplicate DVDs is ubiquitous. Making backups of audiovisual works would be the equivalent of making a photocopy or digital copy of every book in the library. Few would entertain the idea that this was noninfringing conduct.
Sections 108(b)-(c) permit a library to reproduce both published and unpublished works for preservation purposes, but only if certain conditions are met. Replacement of published works (such as purchased audiovisual works) is allowed for purposes of replacing a lost, damaged, stolen, deteriorating or obsolete copy, but only after the library first makes a reasonable effort to find an unused replacement at a fair price. So, a replacement copy may be made when conditions are met, but creating a backup copy is not permitted under this section.
If a library wants to make backup copies of DVDs or videotapes in order to prevent loss from damage, it should obtain a license to do so. Some video producers will sell single copies of a work along with a license to make up to a certain number of copies of the original. This is referred to as the duplication right. It was often used by school districts which purchased videos and the right to make a copy for each school library in the district. The license to duplicate is less expensive than buying individual copies of the video for each library. In addition to the duplication right, libraries may also acquire a license to make backup copies of DVDs.
Under a 1992 amendment, the Audio Home Recording Act, consumers are permitted to make unlimited private use of legally purchased music and other media content stored on CD. In essence, consumers are free to copy the material so long as they do not distribute the copies to others. Consumers may make cassette copies of CDs to play in their car or copy favorite CDs onto MP3 players. They are not free to distribute the copies to other, even by giving them away. This is the limitation libraries face – they distribute the materials to others by lending them and thus are not treated as individual consumers.
Often there is new technology advertised to facilitate making backup copies of various types of media. During the videogame era, a device was introduced that copied the game cartridges, allegedly to prevent “accidental erasure.” There are now devices for copying DVDs to prevent accidental destruction. A recent California case addressed this issue.
In 321 Studios v. MGM Studios, the federal district court held a company that created tools to use in making backup copies of DVDs liable for copyright infringement under the anti-circumvention provision. Moreover, the court ordered 321 Studios to stop distributing these products immediately. Certainly, such devices have substantial noninfringing use – to view and duplicate works in the public domain and make fair uses. The court refused to recognize damage to these legal uses and stated, “…the downstream uses of the software by the customers of 321, whether legal or illegal, are not relevant to determining whether 321 itself is violating the statute." The popularity of the 321 software demonstrates how serious the matter is for DVD owners – especially those with children.
In 2002 bills were introduced, such as the Digital Media Consumer Rights Act, H.R. 5544, which among other things would create a fair use exception to the DMCA's bans on circumvention. Moreover, it would not be a violation to manufacture, distribute, or make noninfringing use of a hardware or software product capable of enabling significant noninfringing use of a copyrighted work, and thus would allow consumers to make backup copies of their media. It is unclear, however, whether this bill would permit libraries to create backup copies of DVDs since a library’s use is not a personal use.
Even more directly, Congresswoman Zoe Lofgren re-introduced a bill in 2003 that would ensure consumers' rights to make digital copies of music, movies and books for their own personal use. Called the Balance Act, H.R. 1056 would establish consumers' rights in the digital world to make backup copies of digital works for use on other devices such as the car stereo or a portable MP3 player. Further it would protect consumers who bypass technological locks to view a DVD movie on their laptops. Again, it is unclear whether it would apply to libraries.
Librarians should be cognizant that just because backup copies benefit the library, or because making them is easy or technologically possible, it likely constitutes copyright infringement. Libraries can acquire a license to do this, and if having backup copies of works other than computer programs is important to that library, it should consider a license.
 307 F. Supp. 2d 1085 (N.D. Cal. 2004).