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Audiovisual Works, Sound Recordings, and Software

Audiovisual works are defined in section 101 of the Copyright Act as "works that consist of a series of related images which are intrinsically intended to be shown by the use of machines or devices such as projectors, viewers, or electronic equipment, together with accompanying sounds, if any, regardless of the nature of the material objects, such as films or tapes, in which the work is embodied."[1] Sound recordings consist of recorded sounds of music, spoken words, and the like, regardless of whether they are stored on phonorecords, CDs, or tapes.

Libraries have long collected audiovisual works and made them available to users, much as they have done with other copyrighted works. While audiovisual works were often kept in separate parts of the collection merely due to their format, they were cataloged and listed in the library's catalog. Audiovisual works have many of the attributes of other works; for example, they can be lent to patrons to take home, checked out to a teacher for use in the classroom, or be used within the library itself. These works also have some unique differences. Audiovisual works require specialized equipment to enable the work to be viewed or heard, such as film projectors, phonographs, and slide projectors (although today the computer has replaced much of this specialized equipment). Further, audiovisual works, by their very nature, are meant to be performed or displayed.

Many of the copyright issues that libraries face when dealing with audiovisual works are the same as those with printed works. For example, library users may ask the library to make a copy of a work for them. And, like books, these works suffer deterioration and loss. In fact, these works likely are more fragile than most books, and therefore librarians often want to convert the formatfor example, from VHS to DVDto preserve them.

But again, there are unique differences. Unlike with text, library patrons seldom request a copy of a portion of an audiovisual work but instead request a copy of the entire work. And perhaps the most important difference is that performance and display are crucial copyright issues for audiovisual works, and they are two of the exclusive rights of the copyright owner. Chapters 5 and 6 cover performance and display. Moreover, section io8(i) excludes audiovisual works and sound recordings from the exceptions for libraries and archives, which means that reproduction and distribution of these works by libraries is not permissible outside of fair use, except for preservation of unpublished works under section 108(b) and replacement under section 108(c).

Libraries also acquire software for their collections, often as "standalone" software, but software also accompanies some books that libraries acquire. Section 117 of the Copyright Act provides the only statutory support for making backup copies of works, but that is limited to computer programs.

As libraries increasingly acquire audiovisual works and computer software to serve the needs of their users, copyright questions abound. Questions in this section address using film clips, music, software, sound recordings, and other audiovisual works in libraries, in corporate settings, and in educational institutions.

May a library make backup copies of audiovisual works and CD-ROMs in order to preserve them? They are quickly out of print, and replacing them often is impossible.

While the practice of making backup copies makes absolute sense to a librarian, the Copyright Act does not permit it except in very narrow circumstances. For CD-ROMs one must look at the underlying work that is on the CD. If the CD-ROM contains a computer program, section 117 allows the owner of a copy of a computer program to make a backup copy. Unfortunately, this permission does not exist for audiovisual works, music recordings, and the like, which might also be on CD.

The other instance when a library may make a copy of a work is under section 108(c) to replace a lost, damaged, deteriorating, stolen, or obsolete copy. This is after the work has become damaged or lost, not before. Even then, the library must first try to purchase an unused replacement copy at a fair price before it can duplicate the work.

  • [1] Other nonprint works, such as photographs, are also important components of library collections. They are addressed in chapter 8
 
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