Copyright and Preservation

G. Limitations on the Rights of Copyright Owners

Section 106 of the Act (discussed above) defines the rights held by a creator. The next several sections establish limits on those rights in order to balance the rights of information users with those of the creators. Unlike the patent system, which grants a virtual monopoly for new inventions, the copyright system tries to strike a much more delicate balance among many competing interests. In furtherance of the broad social goal of disseminating knowledge, Congress has, therefore, carved out a series of exemptions to the "exclusive rights" of the owner to permit uses of a work that would otherwise constitute an infringement.

This paper has already discussed three of the limits on the rights of the owner provided under the Act: the First Sale Doctrine contained in Section 109, the educational and religious exemption for displays and performances provided in Section 110, and the exemption for secondary transmissions in Section 111. Sections 107 on fair use and 108 on reproduction by libraries will be discussed at some length below since they are the sections most directly relevant to this paper. Sections 112 through 118 create some additional exemptions.96 Most of these are not substantively relevant here and will not be discussed at length. However, a few of them--most especially those related to compulsory licensing--might provide a useful model for a solution to the preservation problem, and will be discussed in that section of the paper.

1. Fair Use97, Section 107

Fair use is a judicially created equitable rule of reason to permit limited copying of protected works.98 It was developed to permit researchers to copy portions of a work into their notes and to use excerpts from a protected work in a subsequent work. Examples of the use of protected work in the creation of a new work include literary criticism, scholarship, news reporting, parody, etc. When the new Act was passed, it attempted to incorporate the judicial doctrine of fair use as it had developed to that time.99 As enacted, the statute gives examples of possible fair use and provides a list of criteria for the courts to review in individual cases to determine whether or not a particular use is fair:

    Notwithstanding the provisions of section 106, the fair use of a
    copyrighted work...for purposes such as criticism, comment, news
    reporting, teaching (including multiple copies for classroom
    use), scholarship, or research, is not an infringement of
    copyright.  In determining whether the use made of a work in any
    particular case is a fair use the factors to be considered shall

        <1) the purpose and character of the use, including whether
        such use is of a commercial nature or is for nonprofit
        educational purposes;

        (2) the nature of the copyrighted work;

        (3) the amount and substantiality of the portion used in
        relation to the copyrighted work as a whole; and

        (4) the effect of the use upon the potential market for or
        value of the copyrighted work.100

Researchers who have reviewed the history of the fair use doctrine have found that in most cases finding fair use before the 1970's, the use in question was for a second author to use portions of a copyrighted work in a new creative work.101

(This is sometimes referred to as "productive use".) In any event, in no cases before Williams and Wilkins v. U.S.102 was the copying of an entire work to be used in the same manner as the original found to be fair use.103 That case ended when the Supreme Court affirmed the Court of Claims opinion in favor of the Library by a 4 to 4 vote, with no opinion. The Court's failure to rule on the issue left the law in a state of some uncertainty.

The nature of the question and the terms of the discussion had changed by the time of Williams and Wilkins because photocopying technology had become sufficiently advanced to permit the development of such a large-scale program. The continuing advance of technology and the development of online full text information networks takes this question one step further. Now the same documents from which the copies were made in Williams and Wilkins can be stored in a network and delivered directly to the user electronically. In one sense, if such a database were established for document delivery over a network, it would simply make the delivery of the information already upheld by the court more efficient. In another sense, though, it is a further step down the road of making copies available to readers without compensation to the author. This is a long way from the original notion of fair use and a long way from the foundation of copyright that sought to provide an economic incentive for the production of new works.

Adding to the complexity of the question is the issue of private use. In Sony v. Universal Studios104 the Court held that private off-air videotaping of free broadcast programs for purposes of time shifting was fair use. The Court defined time shifting as:

the practice of recording a program to view it once at a later time, and thereafter erasing it. Time-shifting enables viewers to see programs they otherwise would miss because they are not at home, are occupied with other tasks, or are viewing a program on another station at the time of a broadcast they desire to watch.105

Although the discussion of the Court is quite broad, the actual holding is limited to the factual situation of private home videotaping for later viewing and ultimate erasure. In reaching that conclusion, the Court emphasized the private, noncommercial character of the use. In Sony, the copy was not a substitute for a purchase, it was a substitute for viewing at a particular time.

Seltzer, too, identifies private use as one of the critical points in fair use analysis. The traditional fair use cases involve copying by hand (or by a typewriter) "by a private reader, scholar, writer, student or teacher for the copier's own private use."106 In a note in Williams and Wilkins, the Court of Claims says "it is almost unanimously accepted that a scholar can make a handwritten copy of an entire copyrighted article for his own use"107 Traditionally, then, copies made by hand for private use are considered fair use. Moreover, after Sony, the mechanical reproduction of a complete work under very limited circumstances has also been held to be fair use.

Commentators have suggested that of the four factors listed in the statute, the most important is the last108, dealing with the economic impact of copying. The economic impact of copying by hand is limited, but high speed photocopiers and computers can now reproduce even more efficiently than printing. Even if it is not the dominant criterion, the original purposes of copyright--providing an economic incentive for creation--suggest that fair use is far more likely to be found where the copying has a limited impact on the "potential market for or value of the copyrighted work."109 In Sony, the Court seems to have moved toward the economic analysis, since it created a presumption against all commercial use.

...every commercial use of copyrighted material is presumptively an unfair exploitation of the monopoly privilege that belongs to the owner of the copyright....110

In this context, commercial use would probably include commercial copying as well as copying for use in a trade, business, or profession. It might or might not include the preservation proposals of the brittle books program depending on how many copies are made and whether or not there is a profit.

Several recent decisions have raised serious questions about fair use in the context of unpublished material. In Harper and Row Publishers Inc. v. Nation111 the Supreme Court held that publication of verbatim excerpts from a manuscript due for publication was not fair use. No doubt, this result was due to the old doctrine that gives the author the right of first publication.112 The Second Circuit in Salinger v. Hamilton113 held that a biographer's quoting and paraphrasing of unpublished letters by author J.D. Salinger was not a fair use. The Salinger decision has been widely criticized as presenting a major roadblock to the use of unpublished scholarly material, particularly manuscript collections that have been placed in libraries by still living individuals. Most recently, the Second Circuit again addressed the question in New Era Publications International v. Henry Holt & Co.114, a case involving the use of both published and unpublished writings of L. Ron Hubbard, the founder of the Church of Scientology. Although it did not need to address the fair use question to reach the result in the case, the Court did reaffirm its view that "unpublished works normally enjoy complete protection"115. The results in these cases all clearly turn on the fact that the copied materials were unpublished.

In response to these cases, Representative Kastenmeier introduced HR 4263 on March 14, 1990 to clarify that fair use applies to both published and unpublished works. The proposed legislation would amend Section 107 of the Act by inserting the phrase "whether published or unpublished" after the phrase "the fair use of a copyrighted work".

Seltzer has suggested a simpler formulation of the fair use doctrine than that contained in the statute that helps the analysis in all the fair use cases:

Fair use is use that is necessary for the furtherance of knowledge, literature, and the arts AND does not deprive the creator of the work of an appropriately expected economic reward.116

Such a formulation is consistent with the underlying purposes of the Copyright Act. Furthermore, it would nicely accommodate preservation since libraries in general, and preservation programs in particular, exist primarily "for the furtherance of knowledge, literature, and the arts." This formulation does raise the issue of what is an "appropriately expected economic reward", a question implicit in any discussion of fair use. That question will be particularly relevant for the preservation program as libraries bargain with publishers over preservation (and subsequent redistribution) of out-of-print works.

Some have suggested that new technology has changed the concept of what is "fair". It may be instead that the new technology has changed the perception in the Seltzer formulation of what constitutes something for which it is appropriate to expect an economic reward. In the preservation context, publishers of the majority of works from the 1940's, 50's, and 60's would probably not have anticipated continuing economic reward from a program simply designed to keep their works on library shelves. Alan Latman has suggested that the answer to the question of what constitutes an appropriate expectation might be whether the reasonable owner would consent to the use.117 Early experience with medical publishers at the National Library of Medicine118 suggests that publishers will work with the library community on this problem and that they will consent to at least limited copying for preservation purposes. Although the Seltzer/Latman formulations are still equitable rules of reason, they adopt the traditional "reasonable man" approach familiar in other legal contexts and may be somewhat simpler to apply than the four- part test of the statute. They also suggest an analytical framework that helps to solve the preservation dilemma, at least in part.

2. The Library Exemptions--Section 108

During the early discussions about the proposals for the new Act, the application of fair use to library photocopying seemed uncertain. Some of the participants believed that fair use photocopying was a contradiction in terms,119 and the library community became increasingly concerned that fair use might not meet its needs for protection. As a result, librarians sought either specific exemptions for library copying or a fair use provision that expressly included photocopying.120 As the debate became increasingly acrimonious, Williams and Wilkins filed its lawsuit against the National Library of Medicine, raising squarely the question of whether library photocopying fit within fair use at all. As the litigation progressed and the apparent result swung from one side to the other, the need for a safe haven for at least some library copying became clear.

The earliest copying provision to be included in the draft bills was a provision for the preservation and security of unpublished works and manuscripts.121 This proposal was very similar to the language that eventually became Section 108(b) and reflects both an early concern with preservation--particularly for unpublished materials--and a recognition that copying such materials for the purposes of preservation is not likely to infringe on any publisher's existing economic interests.

The section on the copying of archival materials remained the only copying provision in the various bills until late January 1969 when S.543 introduced the basic structure and elements of 108 as it is today, including both preservation sections, 108(b) and 108(c). When section 108 was added, the report of the Senate Judiciary Committee stated that its provisions were not intended to eliminate the possibility of fair use for library copying, noting that "[t]he rights given to the libraries and archives by this provision of the bill are in addition to those granted under the fair use doctrine."122 (Emphasis added.) Similar language was incorporated directly into the statute in section 108(f)(4) which states that the rights of "this section" do not "in any way affect the right of fair use...." The relationship between fair use copying and 108 copying has been hotly debated. Some contend that 108 dealt with library copying exhaustively and it would be unfair to publishers to build further copying on top of it. Others believe that 108 simply carved out a safe haven to provide libraries with known areas of certainty. This debate will be discussed more fully infra.

Section 108 is a complex section of the Act in which one section grants rights while other sections balance those rights from the point of view of the publisher by limiting their applicability or creating barriers to their use. The basic structure of 108 is to establish conditions for the applicability of the section in subsection (a) and to limit the kinds of works to which it applies in subsection (h). Subsections (b) through (f) establish three basic categories of exemptions including, under specified circumstances, preservation copying, copying for interlibrary loan, and unsupervised coin-operated photocopying. Section (g) together with the fist part of section (a) make it clear that 108 only permits the making of single copies.

In addition to limiting all 108 copying to single copies, section 108(a) establishes three conditions which must be met for a library to take advantage of the exemptions. First, the copying must be made without any purpose of "commercial advantage." Second, the library must either be "open to the public" or at least available "to other persons doing work in a specialized field." Third, the copy must bear a notice of copyright. The first pre-condition requiring no commercial advantage is not likely to be a major problem for preservation program. Should the nature of the program change character in the future, however, to become, for example, a commercial supplier of out-of-print works to libraries and scholars, then this condition would, of course, not be met.123 The second condition--that the library must be "available" to researchers beyond the organization of which the library is a part has been generally found to be no condition at all. Seltzer writes:

...the sole requirement that a collection be ' other persons doing research in a specialized field' is wide enough, for practical purposes, to leave no institution or collection of works outside it. There are no enforceable limitations on 'specialized fields,' no encumbrances on the meaning of 'available,' no requirement that the collection be publicly owned or nonprofit, and accordingly no definition of the terms 'library or archives'....In short, the definition of what might constitute a qualifying library, permitted under the copyright law to provide photocopies for individual users, might well be: 'almost anything at all.'124

The third precondition is relatively easy to meet since copying the full work will automatically contain the original copyright notice. Participating libraries may also want to take affirmative steps to protect themselves by applying a further warning or notice of copyright to each work copied.125

Section 108(h) states that most of the copying rights granted to libraries under 108 do not apply to certain types of works, including pictorial works, graphic works, motion pictures, etc.126 The net result of this subsection is to limit the general applicability of the library exemption to traditional printed works--books and periodicals--as well as audio-visual news programs. Fortunately, this limitation on library copying by type of materials does not apply to preservation copying, indicating a statutory design to permit preservation copying of the broadest range of materials, including films, musical works, and other pictorial or graphic works.

The specific rights given to libraries to copy for preservation purposes are now contained in two sections, 108(b) dealing with unpublished works, and 108(c) dealing with published works:

(b) The rights of reproduction and distribution under this section apply to a copy or phonorecord of an unpublished work duplicated in facsimile form solely for purposes of preservation and security or for deposit for research use in another library or archives of the type described by clause (2) of subsection (a), if the copy or phonorecord reproduced is currently in the collection of the library or archives.

(c) The right of reproduction under this section applies to a copy or phonorecord of a published work duplicated in facsimile form solely for the purpose of replacement of a copy or phonorecord that is damaged, deteriorating, lost, or stolen, if the library or archives has, after reasonable effort, determined that an unused replacement cannot be obtained at a fair price.

The two sections grant slightly different rights. For published works, only a limited right to copy is permitted.127 This copy should presumably be retained by the library.128 By contrast, for unpublished works there is also a limited distribution right. A copy made under that section might be retained by the library, but it might also be deposited in another library. Provided the other conditions are met (see infra), these sections will permit libraries (not other organizations) to make single copies of protected works for preservation purposes. Copies of unpublished works may be deposited in another library, but the copy of the published work should be probably be retained be in the originating library, although it is at least arguable that it could be deposited in a central facility provided the copy has, in fact, replaced the original.

Both sections permit copying "in facsimile form". "Facsimile form" is not defined in the statute, but it appears that the intention of the section was to limit reproduction to analog copies of the work, rather than any digital or machine- readable form.129 Although it is arguable that other newer processes that produce the same result should also be permitted, it is unlikely--without an amendment to the statute--that such an argument could be applied to the direct conversion and storage of documents in machine-readable form.130 This limitation will not hinder the initial work of the preservation program since at the outset, most works will be preserved by filming. Should it become desirable (or even just more efficient) to digitize such documents directly from the original, that appears to be beyond the scope of what is now permitted under section 108.

The purposes for which such copies can be made are also slightly different in the two sections. Unpublished works may be copied for preservation and security, or for deposit131 in another library. As written, preservation and security appear as one standard, although they are different concepts. If they are a single standard, then presumably a work may not be copied for security reasons alone, or for preservation alone. Such works may be copied for both reasons together. The thinking about this language may have been that the integrity (security) of a deteriorating collection may need to be assured through preservation efforts. Nonetheless, this interpretation seems strained and it could easily be found that there really are three distinct reasons (preservation, security, and deposit) for which unpublished materials might be reproduced by a library under this section.132

The purposes for which a published work may be copied are more limited. Section 108(c) permits such copying for replacement of a copy that is damaged, deteriorating, lost, or stolen. It is potentially important to note that this is not a right to copy for general preservation purposes; it is a right to copy for replacement under certain specified conditions.

It may be, for example, that libraries will want to make preservation copies before the work is too badly deteriorated but retain the original work until such time as it is no longer usable. It is unclear whether a literal reading of the current section would permit such activity. Yet it is reasonable to assume that the preservation copy will have to be made sometime before the work is completely lost, and that a library may prefer to continue to use the original as long as possible. This may be the kind of situation where a "reasonableness" standard needs to be elaborated. On the one hand, the section does not appear to contemplate the making of a preservation copy as the work arrives new in the library, as some librarians have (for very good reasons) proposed. Rather, it contemplates that there has already been some level of deterioration. On the other hand, it would be unreasonable to wait so long that the work is so far deteriorated that it is problematic to make the preservation copy. Somewhere in between there is a middle ground where the library would not be making copies of new works but where the original is not so far gone as to put it at risk in its entirety.

Both sections establish conditions for reproduction, although the conditions on copying published works are more significant. Unpublished works copied under section (b) to be deposited in another library may be placed there "for research purposes". In the case of print material, it is hard to imagine any other reason for such copies being made, although an unpublished film could presumably be copied and deposited with another library to be used for instruction or even just for entertainment. Although neither of those purposes would appear to qualify for protection under this section, the first might be found to be fair use.133 This section also requires that the publication already be in the library or archive supplying the copy.134 Presumably, this is to prevent multi-generational copying, where the supplying library is actually making a copy of a work supplied to it by another library under authority of the same section.

Before a replacement copy of a published work may be made under section 108(c), the library must first make a reasonable effort to obtain an unused replacement at a fair price. For relatively new materials that simply wear out from heavy use, this requirement makes some sense as an effort to protect the economic interests of the publisher. In the context of a brittle books preservation program, however, this condition makes little sense. In most cases of brittle pages, absent reprinting, another unused copy is likely to be virtually the same age as the deteriorated volume, and therefore in the same poor condition. Interestingly, in Seltzer's paraphrase of this section, he uses the word "new" rather than "unused"135, and it may be that that is the real intent of the statute: to insure, before copying, that the publisher does not still have copies available for sale. At the very least, it is reasonable to expect that the replacement copy will not merely be unused; it should also be in sufficiently better condition to justify the price paid. For the older materials involved in the preservation program, this is unlikely.

The committee reports do not shed much light on when and to what extent an investigation is necessary. The House report states:

The scope and nature of a reasonable investigation to determine that an unused replacement cannot be obtained will vary according to the circumstances of a particular situation. It will always require recourse to commonly known trade sources in the United States, and in the normal situation also to the publisher or other copyright owner (if such owner can be located at the address listed in the copyright registration), or an authorized reproducing service.

Although this report language sounds absolute, a "reasonableness" standard must take into account varying situations. In the case of long out-of-print works with brittle paper, it may be perfectly reasonable to proceed on the assumption that a copy with better paper is highly unlikely to be available. On the other hand, the question of reasonableness is a question of fact on which a jury or a judge might have to make a finding. The prudent course is to make an inquiry of the publisher at least where the publisher is known and readily accessible. Such efforts will not only protect the library, they will also demonstrate a good faith intention to comply with the statute.

Sections 108(b) and 108(c) have been discussed at length here because they are the central provisions in the Copyright Act relating to preservation copying. In reality, however, the whole preservation effort may not be a significant factor in publisher economics. In categorizing all the various exemptions provided in the statute, Seltzer includes both preservation sections in a small group that he says are "essentially not part of the usual commodity-market mechanism", "thus having minimal impact on copyright-scheme economics".136 This is an important point, one that argues strongly that preservation copying has so little impact on publisher economics that it ought to be allowed to proceed unhindered. If this is true, then it seems highly desirable to clarify the situation through a statutory amendment. Yet the Register of Copyright, in his 1983 report, refused to take the lead, urging that librarians work with the publishing community to develop a joint proposal for such an amendment:

The Copyright Office is not prepared to support a broad new privilege allowing libraries largely unrestrained preservation copying rights with respect to published works, and permitting storage in machine-readable, computer-accessed systems....However, the Office also recognizes that libraries should be able to employ new preservation techniques, provided adequate copyright controls are legislated, both with respect to the preservation copying and information supplying functions of libraries. We recommend a thorough review of these issues by the library, user, author, and publishing communities with a view to developing a common legislative position.137

Some possible ideas for such an amendment, or at least for opening the discussion with publisher representatives, are suggested below.

Despite the importance of sections 108(b) and (c) to the preservation program, overarching all of 108 is section 108(g), which limits the amount and kind of copying permitted to libraries under the other subsections of 108. In addition, section 108 does not eliminate the possibility of fair use under section 107. The relationship between copying under the 108 exemptions and fair use is an extremely difficult area, one over which there has been considerable debate and little agreement. Regrettably, there is not a clear answer, although it must be said that 108 appears to create some difficulties that may not be solved by 107. Section 108(g) provides:

    The rights of reproduction and distribution under this section
    extend to the isolated and unrelated reproduction or distribution
    of a single copy or phonorecord of the same material on separate
    occasions, but do not extend to cases where the library or
    archives, or its employee

        (1) is aware or has substantial reason to believe that it is
        engaging in the related or concerted reproduction or
        distribution of multiple copies of the same material,
        whether made on one occasion or over a period of time, and
        whether intended for aggregate use by one or more
        individuals or for separate use by the individual members of
        a group; o

        (2) engages in the systematic reproduction or distribution
        of single or multiple copies or phonorecords of material
        described in subsection (d): Provided, That nothing
        in this clause prevents a library or archives from
        participating in interlibrary arrangements that do not have,
        as their purpose or effect, that the library or archives
        receiving such copies or phonorecords for distribution does
        so in such aggregate quantities as to substitute for a
        subscription to or purchase of such work.

All copying under section 108 is limited to one copy at a time. That limitation is stated explicitly in subsections (a) and (g), and by implication in the other sections that permit the making of "a copy." Moreover, all of this copying must be a result of unrelated transactions, and the library may not, under this section, knowingly engage in the "related or concerted" reproduction of multiple copies of a work. For individual articles or a contribution to a collection, or a small part of a longer copyrighted work, there is a further limitation that such copying may not be "systematic," but "systematic" does not preclude permitted interlibrary arrangements.

"Related or concerted" is not defined in the statute, but the Senate Report explains, by way of example, that on this basis a library would not be permitted to make copies of copyrighted material for each member of a class with a particular reading assignment.138 In such a situation, the library would clearly know that it was making multiple copies and the activity would undoubtedly be "related."

"Systematic" is also undefined in the statute. The Register's Report suggests that it basically means that there is a "system" and that "the mere existence of the system is enough to render all copying done via that system infringing, unless authorized...."139 The committees seemed to mean something more than the mere existence of a system because they did not attempt such a definition but explained the term by example in the Committee Report: (1) one library agrees to maintain a certain title and supply it to other libraries, thereby causing the others to cancel their subscriptions; (2) a research center or office subscribes to one or two copies of a title and provides photocopies of material to individual researchers instead of subscribing to additional copies; (3) one branch library of a system maintains the only subscription to a title and supplies copies of material to the other branches.140 The Committee explains that

Systematic reproduction or distribution occurs when a library makes copies of such materials available to other libraries or to groups of users under formal or informal arrangements whose purpose or effect is to have the reproducing library serve as their source of such material. Such systematic reproduction and distribution, as distinguished from isolated and unrelated reproduction or distribution, may substitute the copies reproduced by the source library for subscriptions or reprints or other copies which the receiving libraries or users might otherwise have purchased for themselves....141

This language illustrates what is undoubtedly the key concern underlying the limits established in (g) for the rest of section 108--interference with a publisher's subscription base or its reasonably anticipated income stream from royalties (e.g., from reprints for classroom distribution). Note that this is very similar to Seltzer's formulation of the fair use doctrine as not interfering with the publisher's "reasonably anticipated economic reward." It is also similar to the analysis of fair use that suggests that the most important of the four factors is the one dealing with the effect of the use on the potential market for the work.

If this is correct--that the factors underlying the section 108 limitations are the reasonable economic expectations of the copyright owner--then it is fair to inquire further about what those expectations would be in the preservation context. For the older materials being preserved under the brittle books program, it seems likely that the publisher has little expectation of further economic reward. This is especially true for those libraries that already hold the title and are merely replacing a set that is deteriorating. Somewhat more troublesome is the case of a library that did not already have a work, but nonetheless decided to purchase it from a library participating in the brittle books program. Under that circumstance--a new purchaser--the publisher might expect some modest compensation. But such cases are likely to be few in number and, as a result, the appropriate compensation is likely to be de minimus.

The author of this paper believes that the above analysis provides a useful approach to understanding what 108 is all about. Regrettably, the 1983 Report of the Register of Copyright does not follow such an approach and seriously muddies the water by overstating his belief that librarians do not understand the section and have applied it to permit copying far beyond what was intended, causing publishers to "forego" some $38.6 million in revenue annually.142

First, the Register expresses great concern that the discussion about 108(g)(2) has centered on interlibrary loan, and says that such an approach is "letting the proviso tail wag the systematic dog." It is true that with the exception of the proviso, section 108 is worded generally. But the focus on interlibrary loan (ILL) is perfectly understandable since one of the fears of the library community was that, without the proviso, the bar on systematic copying could be used to curtail interlibrary cooperation.

Then, trying to emphasize the point that (g)(2) is not limited to interlibrary transactions (a correct point), but in a tone that seems intended to lecture the library community, the Register mis-states the law himself three times in a way that could lead to potentially erroneous conclusions. At various points, the Register states: "all 'systematic' photocopying is forbidden except such ILL photocopying as the proviso permits...[Emphasis in original.]"143; "all 'systematic' copying is against the law except the 'non-substitutional' ILL copying permitted by the proviso"144; "the 'quantitative substitution' language in the proviso to (g)(2) applies only to interlibrary arrangements--all other 'systematic' photocopying is forbidden--without regard to quantities...[Emphasis in original.]"145 Such absolute statements are plainly incorrect.

By the explicit terms of the section, the systematic copying provisions do not apply to all copying; they only apply to the copying of certain works described in another section, i.e., an "article or other contribution to a copyrighted collection or periodical issue, or to a copy of a phonorecord or a small part of any other copyrighted work," as provided in section (d). This limitation is made explicit by both Committee reports.146 Importantly for the brittle books program, because of that language, the "systematic" language does not seem to apply to complete works copied for preservation purposes under sections 108(b) and (c) or to complete out-of-print works copied for a user under 108(e). Of course, it could be argued that if the limitation applies to articles or small parts of works it should also apply to a complete journal or to an entire work. But, since the purposes of the preservation sections are quite different from those of the other sections-- necessitating the copying of complete works--it seems entirely reasonable to assume that Congress meant what it said in establishing the "no systematic copying rule" only for articles and portions of other works. No doubt, Congress realized the necessity of treating differently those materials that can be legitimately copied in their entirety, i.e., works being preserved under 108(b) and (c).

With all this in mind, subsection 108(g)(2) is not likely to apply to the immediate work of the brittle books program.147 However, (g)(1) and the opening paragraph of 108 will apply if multiple copies of protected material are made for distribution to other libraries. Thus, while libraries may be able to develop a relatively formal system for copying, they will still be limited to one copy at a time and there may not be any related or concerted reproduction or distribution of multiple copies.

The author of this paper believes that the best way to understand section 108(g) is to follow the analysis suggested by the Senate Committee--to consider whether the copying is of such a nature or in such quantities as to substitute for a purchase or otherwise interfere with the reasonably anticipated income stream to the publisher. The author further believes that the anticipated income stream from preserving out- of-print brittle works is small and that the brittle books program participants will be able to proceed easily or work well with publishers to obtain permission to copy.

Regardless of the applicability of 108, the relationship between the 108 exemptions and fair use is another difficult issue, one which has also generated animosity and controversy. The 1983 Report of the Register of Copyrights discussed the issue at length, but did not completely dispose of it. Although both sides insist that theirs is the correct way to interpret the statute, this author believes that at the polar positions neither side is completely right, and that there remains a serious dispute.

The publishing community asserts that Section 108 sets out the libraries' rights, and therefore creates a cap on library copying.

...whether or not section 108 rights are...intended as a restatement or a clarification of library copying rights or whether they are, as we think, additional property rights, the converse cannot be true. Section 107 rights cannot for all practical purposes exceed those granted by section 108.148

The library community, relying on Section 108(f)149, understands that it has been given certain rights under 108, but also believes that section 107 may be applicable in certain cases. It is clear, however, that the sections are separate, and that this provision cannot be used, as the Register says "to read section 108 out of the statute."150

The Register sets up the issue as "whether a librarian who has made all of the photocopies permitted by section 108 in a given type of transaction may thereafter make one or more additional photocopies under the fair use provisions of section 107 or whether such copying is infringing unless authorized by the copyright owner."151 Although the Register correctly answers that question by saying "it depends," he nonetheless seems to strike the balance very close to the publisher's position, in a way that is likely to restrict library copying. The Register says, for example, that only "[o]n certain infrequent occasions, such copying may be permitted."152 He then goes on to define a two-part test for the permissibility of "post 108" copying:

    Library photocopying "beyond" 108 may be fair use if

        (a) the transaction is of a type which could be fair
        use in the absence of section 108, and

        (b) the fair use analysis (conducted only if (a) applies) of
        this transaction takes into account the "108" copying
        which has already occurred. [Emphasis in original.]153

Using this test, the Register then goes on to exclude all interlibrary photocopying from the analysis by saying it does not meet the first prong of the test because it is not of a type that could be fair use in the absence of section 108. (Fortunately, he does indicate that preservation copying would be likely to be fair use even without section 108.) The author believes that the Register has gone too far in excluding all ILL photocopying from fair use. Whether or not one agrees with the result in Williams and Wilkins, at the very least that case demonstrates the difficulty of reaching such a conclusion. Before the Act was passed, there was great uncertainty about the applicability of fair use to photocopying. In enacting into statute the state of fair use as it existed at the time, Congress preserved the uncertainty, and the Register's attempts to cut off that discussion seem inappropriate.

It may be that, as a matter of fact, copying beyond section 108 will, indeed, be infrequent. If the section was well-crafted, then it will cover most library copying and set some reasonable limits upon it. If, however, certain needs were overlooked, fair use provides a possible escape valve. To conclude that recourse to fair use should be discouraged as a matter of law is to distort the balance that was carefully built into the statute.

It may be that how one approaches the question of the relationship between the two sections depends to a large degree on how one views the purposes of section 108. The Register says that section 108 was needed to make lawful what would have otherwise been unlawful, a view that presumes the outcome of the legal debate. The author's view is that section 108 was designed to provide some certainty in an area where the state of the prior law was highly uncertain and where the technology was changing very rapidly. It was intended, as was said before, to create a safe haven for limited library copying. Beyond the limits, of course, libraries go back into uncertain territory where they must argue fair use.154 Arguing fair use, however, does not mean a court will find fair use. Section 107, as now incorporated in the statute, should remain an equitable rule of reason in which a variety of circumstances (including, as suggested by the Register, any prior 108 copying) are considered.

3. Compulsory and Voluntary Licenses155

Compulsory licenses do not currently affect regular library operations or the brittle books preservation program. However, they have been used to solve difficult problems in other areas of copyright and they are widely used in other countries. Such a mechanism may not be needed for basic preservation work, but it might provide a useful legal solution to allow the preservation program to develop the wider electronic distribution ultimately envisioned.156

Compulsory licenses provide a mechanism for compensation to creators in situations where control of copies or control over use is difficult. Essentially, the compulsory license statutorily grants blanket permission to use a particular kind of work in a way that would otherwise violate one of the exclusive rights of the creator in return for payment of a fee to a central agency. The royalties thus collected form a pool of funds from which compensation is provided to creators participating in the system.

Under United States law, compulsory licenses began with a license for the reproduction of copyrighted music. The case of White-Smith Music Publishing Co. v. Apollo Co., 209 U.S. 1 (1908) found that piano rolls were not copies of copyrighted music, but part of a machine that played the musical works. In response to this case, in the Copyright Act of 1909 Congress established a provision to allow any manufacturer of recordings or mechanical reproductions to use a musical composition that had previously been recorded provided the manufacturer paid a royalty to the copyright owner. This scheme has been administered by ASCAP and BMI, which collect and distribute the statutory royalty (2 cents per disk until 1976, 2 3/4 cents per disk or 1/2 cent per minute, whichever is larger, after 1976). Under the 1909 Act, once the copyright owner had licensed the first recording, subsequent recordings of the same musical composition could be made by paying a royalty. With a few changes, this basic scheme for sound recordings was carried forward into the Copyright Act of 1976.157 The 1976 Act also added compulsory licenses for jukeboxes,158 public broadcasting,159 and cable television.160

In each case, the statute provides for a mechanism to collect royalty payments that will provide a pool of funds for distribution to copyright holders. In the case of cable television, the rates are established as a percentage of the gross receipts of the company; for jukeboxes, an annual fee is paid for each machine; for making and distributing phonorecords, a fee for each disk is levied for each work on the disk; and for public broadcasting, fees are collected for each performance of a covered work.161 The fees for cable television and jukebox royalties are collected by the Register of Copyrights and distributed by the Copyright Royalty Tribunal (CRT). The Copyright Royalty Tribunal also sets or reviews the rates for cable television, for phonorecords and coin- operated phonorecord players, and for non- commercial broadcasting. In setting the rates for phonorecords and jukeboxes, the CRT is specifically directed to balance several potentially competing objectives.162

Because of the relative success of compulsory licenses, similar systems have been established on a voluntary basis in other parts of the information industry. For example, the Copyright Clearance Center (CCC) has been established to provide a clearinghouse for the copying of journals beyond what is permitted under the statute. Originally, payment to the CCC was made on a per copy basis, and royalties were distributed accordingly. In recent years, the CCC has developed an annual license program for its major corporate users. In that program, payments are based on industry surveys and sophisticated econometric modeling. Similarly, for the non- theatrical institutional market163, the Motion Picture Licensing Corporation (MPLC) has been established to provide a mechanism for the collection of royalties and payment to owners for the institutional showing of home video cassettes and videodiscs. In most cases, the MPLC is negotiating a blanket agreement with each participating institution. The existence of voluntary licensing groups suggests that the industry sees them as a viable way to provide compensation to creators for the use of their work. However, without the clear force of law behind them, participation has been limited.

4. Software

Other than Section 108, the only place in the Act where copying of a protected work is permitted for preservation purposes is in Section 117, covering software. There, the Act specifically provides that the owner164 of a computer program may make or authorize the making of another copy or adaptation of that computer program provided:

(2) that such new copy or adaptation is for archival purposes only and that all archival copies are destroyed in the event that continued possession of the computer program should cease to be lawful.

The purpose of this section (along with the other half of 117, permitting copying that is an essential step in using the program) is to allow the owner to make such copies as are needed for the program to be used.165 This obviously includes loading (copying) the program into memory but does not include the making of multiple copies, the use of the copies on more than one machine simultaneously, or the making of copies for sale or lending to others. Copying for archival purposes allows the owner to make copies where the original might be damaged due to the fragility of the storage medium or mechanical or electrical failure. It does not allow the copying of ROM cartridges, but may permit the copying of more fragile media, such as floppy disks. In construing this section the U.S. District Court for the Northern District of Illinois said:

Congress did not enact a general rule that making back-up copies of copyrighted works would not infringe. Rather, according to the CONTU report, it limited its exception to computer programs which are subject to 'destruction or damage by mechanical or electrical failure.' Some media must be especially susceptible to this danger. JS&A has simply offered no evidence that a ROM chip is such a medium.166

Section 117 is not, of course, immediately applicable to brittle books. However, it does again show Congressional sensitivity to the problem of preserving fragile material, in this case in the context of an individual owner rather than a library owner.

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Timestamp: Sunday, 23-Nov-2008 15:20:18 PST
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