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Both sections 108(c) and (e) require a library to make a reasonable effort to acquire an unused copy of a work at a "fair price." But section 108(h) specifies a "reasonable price." What is the difference?

There appears to be no functional difference. Section 108(h) was a 1998 amendment to the statute and it uses "reasonable price." Maybe it was sloppy legislative drafting. There is nothing in the legislative history to account for the difference, and there has been no litigation to provide guidance.

A book is no longer in print, unavailable from used book sellers and unobtainable from the book's author. Further, the book was previously owned by the library but it has been withdrawn from the collection. Under these circumstances, is the library allowed to photocopy the book after borrowing it from another library?

In fact, there is no requirement even to look for a used book. Under section 108(c), a library may reproduce a lost, damaged, stolen, deteriorating or obsolete copy of a work after it makes a reasonable effort to obtain an unused copy at a fair price. Since the library once owned the title, it may borrow it from another library and reproduce it to replace the copy it no longer has.

May a library make backup copies of audiovisual works and CD-ROMs in order to preserve them? They are easily damaged, 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 or music.

The only other instance in which a library may make a copy of a published audiovisual 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. An obsolete copy is defined in the statute as one for which the equipment to see or hear the work is no longer reasonably available in the commercial marketplace. Even then, the library must first try to purchase an unused replacement copy at a fair price before it can duplicate the work. So, the answer is no, without permission of the copyright holder.

Now that the library is receiving many CDs that accompany books, is there a problem with making backup copies to keep in technical services for replacement should the originals disappear from the back of the books? The practice has been to make copies of disks that accompany books, place the copies with the books and keep the original disks as archival copies. Since these copies are not for general distribution, but rather as a safeguard in case of loss, is this fair use?

Although some libraries have routinely made backup copies of many types of nonprint works, the statute is clear. One may make a backup copy only of computer programs without permission from the copyright holder under section 117 of the Copyright Act. There is no provision for backup copies of other types of works. So, if these CDs contain software, then a backup copy is permissible. Fair use is unlikely to apply since the practice involves duplicating an entire work and copyright holders will gladly sell the library two copies so one can be used as a backup copy in case of accidental damage or loss to the other copy.

A library certainly could seek permission for duplicating other CDs as a way to guard against accidental loss or destruction, but such permission is unlikely to be granted without a fee.

A music library is evaluating the feasibility of a CD preservation program and is considering the following to preserve its existing collection of CDs proactively but is concerned about whether these actions infringes copyright. (1) Create a single duplicate copy of CD holdings and store these copies in a secure dark archive. (2) Continue to circulate the originals as normal, but if an original becomes lost or damaged beyond usability, first conduct a search to see if a replacement copy can be found in print or otherwise available on the market at fair market value. (3) If no such replacement can be found, create a new copy from the duplicate in the dark archive and use that for future circulation.

To some extent, the answer depends on whether these are purchased music recordings on CD. Assume first that they are. While the plan makes sense as a preservation matter, some of the actions do infringe the copyright.

(1) The only backup copies for libraries that are permitted are under section 108(b), and that is limited to unpublished works. CDs, and music CDs in particular, typically are published. Reproducing these CDs to create backup copies without permission is infringement. What the library can do is to purchase two copies of each CD and place one in a dark archive.

(2) This follows the requirements of section 108(c) for replacement copies and would comply with copyright requirements.

(3) If no replacement copy can be found at a fair price, then the library is permitted to make a replacement copy which could be made from the purchased CD in the dark archives. Even if the Copyright Act were amended to facilitate further library preservation, it likely would permit copying for preservation only if the work were at immediate risk of loss or destruction. Purchased recordings on CD are not considered to be so fragile. If the CDs are recordings of student performances of musical works, the guidelines on the Educational Use of Music permit schools to make a single copy of the recording for critique and to retain it.

An instructor has an old 16mm film published by Southern Bell Telephone and Telegraph Company. He wants to put it on videotape or DVD to use for his class, and to preserve it. Is this infringement? Should he contact the AT&T archives?

According to the Copyright Act, only a library or archives may convert the format of a work for preservation purposes. Before that may be done, however, section 108(c) dictates that the library first attempt to purchase a copy in the desired format at a fair price. If it is not available, then for preservation, a library may reproduce the film. The library should contact Southern Bell to try to obtain another copy since it appears to be the publisher, and if a VHS or DVD copy is not available, the library may then reproduce a copy in a newer video format.

 
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