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Copyright in the LibraryThe Digital Library |
In the last few years much concrete progress has been made towards describing and understanding the inevitable but seemingly elusive digital future. Researchers in the fields of library and information science and engineering and computer science are experimenting with projects designed to answer a myriad of questions: what is a digital library; how will patrons use electronic information; how can we keep track of who uses what; how can we compensate authors; how should digital information be organized and indexed; what will be the role of libraries; what will be the role of publishers; what methods of distribution are most effective; how do people find the information they need in an online environment; how can a digital library facilitate collaboration?
University of Texas libraries can and should participate in such experimentation. Every project adds invaluable knowledge upon which the next projects will be based. There are, of course, few answers yet and issues such as those raised by copyright may seem discouraging. Nevertheless, the only effective way to derive answers to questions about digital libraries is to start down the path towards creating them.
Section 109 permits the owner of a lawfully made copy to dispose of it by lending or any other means. This is called the First Sale Doctrine because it permits copyright owners to control only the first sale of a work. This is the basic legal foundation of our public library system. It also allows book owners to sell their books at garage sales without permission from or payment to the copyright owner.
This right to dispose of a copy does not include the right to make more copies. If copies must be made to facilitate lending, they are typically authorized by Sections 107 or 108, or by the copyright owner. Currently, libraries make copies of print materials for other librarian's patrons (interlibrary loan), for their own patrons (research copies and reserve copies) and for archival purposes (preservation and replacement). The right to make copies under Sections 107 and 108 in the print environment is thus subsidiary to the more fundamental lending right under Section 109.
The publishing and entertainment industries favor the proposition that the distribution right libraries enjoy for print works should not exist for electronic works because electronic distribution requires that a copy be made. That copy must be authorized somewhere else in the law or by the owner before it can be distributed. This proposition is reflected in the Digital Millenium Copyright Act ("DMCA") changes to Section 108 that authorize the creation of digital copies for archival and preservation purposes. The right to distribute such a digital archival or replacement copy of an analog work requires authorization. It is unclear whether Section 107 (and other sections as appropriate) may be relied upon for such authority.
As an alternative to the proposition that a digital copy requires independent authorization, it would have been reasonable to characterize the copies made in the course of transmission as "incidental" and to conclude that copies incidental to the legitimate exercise of the distribution right should be fair use. There was some support in case law for this.1 Nevertheless, the DMCA archiving and replacement amendments suggest that the other argument is prevailing with Congress.
Licensed works. But in fact, depending on authorization to distribute may not pose a problem in many cases since most digital works are licensed and permission to distribute such works is addressed in a license agreement. License agreements vary tremendously, but most will address copyright issues in some way or another. For example, many licenses will:
Practically speaking, contractual agreements may replace specific provisions of copyright law as the immediate source of authority to archive, use and distribute digital works. This possibility should alert us to pay more attention to such contracts and more carefully negotiate their terms. But what about the works in the library that for one reason or another are not made available digitally by their owners?
Unlicensed works. As described above the DMCA does not authorize libraries to distribute digitized unpublished works or digitized out-of-print published works that are lost, stolen, deteriorating or damaged.2
Works that seem to fall between the cracks and other troublesome issues like the cost of all these authorizations. So, libraries have the right to distribute works acquired digitally pursuant to contracts, to create but not to distribute digital archival and replacement copies under Sections 108(b) and (c), and for some time have had the right to distribute digital copies of any work requested pursuant to Sections 108(d) and (e) (patron requests), unless excluded by Section 108(i).
Thus, libraries probably can not make most of the non-digital works in their collections available electronically without owner authorization. Perhaps the owners of most works will be sufficiently motivated to make their works available electronically to keep this category of "digitally unavailable works" small. But wait a minute; even if owners rush to authorize digital conversion of everything they own, haven't the libraries already paid copyright owners once for many of these works (a price that includes a surcharge for all the copies that owners theoretically won't sell because potential buyers will read the library's copy instead of buying their own), and should they have to pay again because an activity (reading or browsing or access) that once did not involve a use of copyright (copying) now inherently does? Changes to the copyright law seem to confirm the copyright owners' position that the First Sale Doctrine should not apply to electronic works, but no one has addressed the profound implications of this change for library operations. Perhaps it will be of no consequence ultimately once all works are acquired digitally to begin with under licenses that authorize distribution. For the moment, however, there are significant gaps in the legal authority to make works available electronically to the public and important questions about the costs. Certainly this is worth a mention.
1 Sega Enterprises, Ltd. v. Accolade, Inc. 977 F.2d 1510 (9th Cir.1992); the Ninth Circuit found that intermediate copying that was a necessary step in an otherwise lawful activity (making a competing but non-infringing software product) was a fair use.
2 Complying with the Digital Millennium Copyright Act and Sonny Bono Copyright Term Extension Act - Making Digital Copies in the Library
The archive right is discussed more fully in Library Reproduction: Archiving.
Fair Use (Section 107): |
Library Reproduction (Section 108): |
Other: |
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