Complying with the Digital Millennium Copyright Act and Sonny Bono Copyright Term Extension Act Making Digital Copies in the Library

Title IV of the Digital Millennium Copyright Act (the "DMCA"), Section 404, amends Section 108 of the copyright law to permit libraries to digitize analog materials without permission for archival purposes. Section 104 of the Sonny Bono Copyright Term Extension Act (the "SBCTEA") exempts libraries under limited circumstances from the SBCTEA's provisions for published works in their last 20 years of protection.

For more detailed information about Section 108 and qualifying for its protections, please see Copyright in the Library: Archiving. In brief, the newly revised Section 108 permits our libraries to make up to three digital archival copies of both published and unpublished materials for storage and retrieval, and in the case of published works, to migrate the work from obsolete media. New Section 108 does not, however, permit libraries to make these digital copies accessible to the public off the library premises. This means, for example, that the copy we send to another library must arrive there in an analog form, unless we have permission from the copyright owner to make and distribute a digital copy.

New Section 108 also provides more detailed guidance about the kind of notice that must be included on library copies. Any copyright notice originally on a work should be included on the copy. Otherwise, the library must supply a legend that states that the work may be protected by copyright law.

New Section 108 also contains the limited exemption from the SBCTEA provisions that extend the term of copyright protection for an additional 20 years. Libraries are permitted to reproduce published works in their last 20 years of protection for purposes of preservation, scholarship, or research so long as the work is not subject to normal commercial exploitation and a copy or phonorecord of the work cannot be obtained at a reasonable price. The library should investigate the status of the work by checking the copyright office's web site where notices of such facts may be posted, and by conducting normal investigations otherwise.

Until the Copyright Office and/or the Cornell Law School provide updated versions of Section 108, I have created a redlined version showing the changes that DMCA Section 404 and SBCTEA Section 104 makes, as well as a clean copy showing the new law as revised.

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