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How can a library stop a patron from burning CDs? The library asks no questions and places no limits on the number of CDs a patron reproduces.

It is important not to assume that CD burning by a library user is copyright infringement, because it may not be. For example, if a patron owns a copy of a CD and makes a duplicate for use in his car, it is not infringement under the Audio Home Recording Act, which is sections 1001-1010 of the Copyright Acteven the Recording Industry Association of America agrees (see minidisc.org/ahra.html). Or the patron may have a subscription to Audible.com, which permits subscribers to download audiobooks to CD and other devices. In other words, the copying may be permitted by law, or by a license agreement, or as a fair use.

The only duty of the library is to post the notices on or near reproduction equipment as required under section 108(f)(1) of the Copyright Act and for the library itself to follow the law. Just as the library does not inquire about the use a patron will make of a photocopy, it should not inquire about how patrons will use copies of other media.

May a library make a copy of an item it owns that is in an obsolete medium (for example converting VHS tapes to DVD)? If so, may the reproduced copies be used outside of the library?

Section 108(c) of the Copyright Act permits libraries to reproduce copyrighted media in two instances: (1) to replace a lost, damaged, stolen, or deteriorating item and (2) to replace obsolete media. In order to reproduce the work, the library must first try to find an unused copy at a fair price. If one is not available, then the work may be reproduced. Obsolete media, defined by section 108(c), means that the equipment necessary to render the work perceptible is no longer manufactured or is not available in the commercial marketplace. One is not required to purchase used equipment, however. VHS is not an obsolete format since VHS equipment is still available for purchase.

Section 108(c) was amended in 1998 to allow libraries to make digital copies of analog works under the circumstances described above. These digital copies cannot be used outside the physical premises of the library, however. It is highly likely that Congress meant networked digital copies and not tangible digital copies such as DVDs. Thus, libraries do not make online replacement copies available outside the premises, but in replacing a damaged DVD, when the original could be loaned outside the library, it makes little sense to restrict to the library's premises the copy made under the section 108(c) requirements. Unfortunately, the statute treats all digital works the same and the restriction to in-library use of replaced works in digital format applies.

A faculty member has transferred an 8mm film that he owns to videotape for his own personal use. He now wants to donate this video to the library for its collection. The tape contains two Disney short films, the first of which the library already owns on DVD. The second is not available for purchase in any form, although it is still under copyright. Since it is not available for purchase, and the library does not have the technology to show an 8mm film, may the library accept this donation and add it to the collection?

If the library receives a copy of a work by gift, it is just the same as if it purchased the work. Should the faculty member have donated the 8mm film itself, the library could convert it to VHS because, under section 108(c) of the Copyright Act, the 8mm format is considered obsolete. First, the library would have to make a reasonable effort to purchase the work at a fair price. If it is not available, then the library may then convert the format since 8 mm equipment is no longer reasonably available in the commercial marketplace. In this situation, the faculty member has already done the conversion from an obsolete format that the library would have been able to do for itself. There should be no difficulty in accepting the already converted VHS copy.

This answer would not apply had the original work been in VHS format, and the faculty member converted it to DVD for his personal use and then sought to donate the DVD to the library. VHS is not yet an obsolete format so the library should not accept the hypothetically proffered DVD.

As VHS tapes and playing equipment are being phased out of a library, some faculty want to convert commercial VHS tapes to DVD format so they can continue to use them in the classroom. Many of these VHS tapes are not currently available for purchase in DVD format. Would permission from the copyright holder be required to convert to DVD format if the VHS tapes were (1) "personal" copies, (2) department-owned copies, or (3) library-owned copies?

The answer to all three is, unfortunately, yes. Under section 108(c) of the Copyright Act, there is no permission for libraries to convert format as long as the equipment for using VHS is either still being manufactured or is still reasonably available in the commercial marketplace. VHS equipment is still available, although at some future time, this will cease to be the case.

This answer applies to library, personal, and departmental copies. If, however, the library copies are "lost, damaged, stolen, or deteriorating," and the library tries to buy another VHS copy and a DVD copy and neither is available, then the library could convert the VHS to DVD format. There is no statutory permission for departmental or personal copies. If someone owns a personal VHS copy for home viewing only and not for showing at school, there is a stronger argument for permitting the conversion for use at home under section 107 fair use. This would not apply if the video is to be used at school, however.

If a media producer installs copy protection on a film, does that remove someone's fair use rights? For example, if the library or a faculty member wants to "rip" a two-minute segment from a two-hour film, is that infringement, even though using the two minutes would likely be a fair use if it were not copy protected?

Yes, removing copy controls is infringement. The anti-circumvention provision of the Copyright Act pretty much eliminates fair use when technological controls on access and copying are present. This provision was added by the 1998 Digital Millennium Copyright Act that amended the Copyright Act of 1976. If a copyright owner includes technological copy protection on a work, removing that copy protection, even to make a fair use, violates the statute. Despite the fact that the anti-circumvention provision, section 1201(c), says that it does not affect fair use, clearly it does so.

A community college library has several iPods loaded with music, audiobooks, and other content for circulation to students. In collaboration with a music professor the library created a themed iPod called the "BachPod" that contains classical music and other materials purchased from iTunes. Currently, there are multiple copies of the BachPod available for checkout. The library asked Apple about purchasing something from iTunes and then putting it on multiple iPods, and Apple said this was permissible as long as students could not transfer material from one of the school's iPods to another device. Now the music professor has a set of Leonard Bernstein DVDs that he wants to transfer to the BachPod. The library is concerned that ripping content from a DVD would infringe copyright, but he says that it would be okay as long as the original DVDs are then warehoused and not used. Would this mean that each original DVD the library owns may be copied to only one iPod? Does the TEACH Act apply to this situation?

The TEACH Act has no applicability to this situation. TEACH applies only when performances and displays are transmitted to students, and an iPod is a standalone playback device and not transmission. Copying DVDs onto iPods would require permission both of the composer, if the work is not in the public domain, and of the recording company. Also, the musical arrangement may be separately copyrighted, so a third permission might even be required. The fact that the DVDs are warehoused and not used is irrelevant. Converting the format is the problem since it is an unauthorized reproduction and may infringe this right for three separate copyright owners as described.

An academic library was contacted by a person not affiliated with the university requesting the loan of a copy of a PBS video that is no longer in production and that he was unable to obtain from PBS. A faculty member at the university does not want to risk losing the video by lending it. May the library copy the video to preserve the faculty member's original and lend the copy to the community member?

Unfortunately, this is not what is meant by preservation in the copyright law. It is infringement to duplicate videos just to lend them. In fact, only under the preservation sections can libraries copy videos at all. Section 108(b) of the Copyright Act applies only if the video is unpublished, and section 108(c) applies only when the library's copy has been lost, damaged, or stolen, has deteriorated, or is obsolete.

The library recently received a donation of several videotapes that a user bought at a garage sale. They are all labeled "Demo tape," "Not for sale or rental," "Screener for video retailers," "Please return to sales rep," and the like. May these be used in the library collection? Or may the Friends group sell them in their book sale?

These tapes should not be added to the collection as they were not intended for this purpose and were clearly marked review or demo copies only. Typically, the Copyright Act section 108 exceptions apply only to lawfully acquired copies. Sale by the Friends group raises other issues, but many libraries claim that those sale items were never part of the collection anyway. So, it may be permissible to sell the copies if the library is willing to assume the risk, but these are not legitimate copies. The library should be careful to make sure that the tapes do not contain any information to identify them with that library.

Several faculty members at a state university have asked the library to make copies of videos borrowed from the library to send to the distance education students. Copies would be made on DVDs and then mailed to the students. Students would be required to return these copies or their grades would be withheld. May the library reproduce these videos to service distance education students? If so, would any preventative measures be required, such as encrypting the copies to block the students from duplicating them? When students return the copies, should the copies then be destroyed, or may they be reused many times?

The problem with the described activity is not the mailing of DVD copies to distance education students for return to the library, but is the reproducing of videos without seeking permission from each copyright owner and paying royalties if requested. There may be other alternatives that the school or library should explore. For example, purchasing multiple copies of a video for lending, streaming a portion (not the entire video) to distance education students enrolled in a course, or assigning the video for students to view and then suggesting where it may be found, such as video rental stores, public libraries, or legitimate online download sites. Under section 110(2) of the Copyright

Act, a reasonable and limited portion of an audiovisual work may be transmitted (streamed) to distance education students without seeking permission of the copyright owner if the other requirements of the statute are met. To transmit the entire work, however, permission from the copyright owner is required.

The questions concerning return and destruction of the copies make no difference since it is the reproduction itself that causes the copyright difficulties. Whether downloading technologies would be required or whether reproduced copies could be lent many times does not matter if the reproduction of the videos onto DVD was infringement in the first place.

The library's copy of a certain video is on faculty reserve and it is required viewing. Because the tape has been used so much, it is now in bad shape. The producer of the tape is no longer in business, and the information technology staff is willing to digitize the tape so it can be streamed for viewing. Meanwhile, some enterprising member of the staff checked on the web and found that another university library had already done this. If a video can be digitized, rather than load it onto a server, could the library instead burn it onto a DVD so that it can be checked out by students and faculty?

The good news is that there now is a way to reproduce the video, but the bad news is that the reproduced copy, if it is digital, has restrictions on where it may be used. Section 108(c) of the Copyright Act permits duplicating deteriorating works after first trying to purchase a new copy. It even allows a library to convert the format and create a digital copy if no unused copy is available for acquisition. There are restrictions, however. The digital copy may not be used outside the premises of the library. Unfortunately, a DVD copy is also a digital copy and thus would be restricted to in-library use only. So, it could not be checked out to patrons to take home to view. It could, however, be checked out for viewing within the library. Many librarians believe that Congress did not intend that tangible digital copies replaced under section 108(c) not be loaned, and they go ahead and circulate those copies if the original deteriorating copy could be circulated.

Streaming technology does not permit students or other users to copy the work but only to see the work being performed. Under section 110(2), a faculty member may transmit (stream) a "reasonable and limited" portion of a film without permission. To stream the entire film, however, requires permission.

 
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