III. REPRISE–APPLYING THE ACT TO THE BRITTLE BOOKS PRESERVATION PROGRAM
This section will summarize and restate where the brittle books preservation program can proceed with relative certainty, and where there might be some uncertainty under the law.
A. Safe Copying–Materials in the Public Domain
There is a vast body of published material on which all the elements of the brittle books program can proceed, including preservation copying, making multiple copies for distribution to other libraries, and even building an electronic datafile. Materials which are in the public domain are not protected by copyright, and libraries are free to copy, distribute, or display them. They may also develop new value-added products or services such as computer-produced digests or indexes, thereby providing new means of access to historical materials.
Among the materials thus available are all materials published prior to 1915. This date moves up each year, and by the end of the twenty-year preservation project, all materials published prior to the middle 1930’s will be in the public domain. In addition, materials published without the statutory notice requirement are also in the public domain. Although libraries are likely to find that most of the major publishers complied with the notice requirement, some periodicals, newspapers, and small presses may not have done so. Finally, all United States government publications, unless they contain separately protected works, are in the public domain.
Another important category of unprotected materials are those for which copyright was not renewed. All materials published prior to January 1, 1950 should have had their copyright renewed before 1978, and there should be a record of that renewal in the Copyright Office. If they were renewed, copyright protection is extended to seventy- five years from the date copyright was originally secured. If they did not, the works are in the public domain. Statistics from the Copyright Office show that only 9.5 percent167of existing copyrights were renewed under the old system, with the majority of works lapsing into the public domain at the end of their first term. This fact suggests that the majority of materials published prior to 1950 are no longer protected by copyright. Therefore, 1950168 may be a convenient cutoff date from which much (but not all) of the work could be accomplished, without the necessity of statutory amendments. Participating libraries of the program would, of course, still need to conduct their research at the Copyright Office to determine which of such works are protected and which are not. For those which are not, the full program may safely proceed. Those which were renewed, however, are still protected and are subject to all the comments in this paper about protected works.
B. Protected Works–The First Copy
Protected works are subject to the full range of exclusive rights and the limitations on those rights granted by the Act. Since the right to make or authorize the making of copies is one of the exclusive rights of the owner, any copying must come under some provision of the Act that authorizes the copy. For the first copy, this is not difficult, although even here the law is somewhat ambiguous.
Section 108 grants libraries–not some other entity–the right to make preservation copies under certain circumstances. In general, it appears that participating libraries may make single copies of actually deteriorating published works (i.e., not new works in anticipation of future deterioration) for replacement purposes. Under the current law, such copying should be in analog — not digital — format and the library should make a reasonable effort to determine whether or not an unused copy is available. Since other old copies are also likely to be deteriorated, such an effort may consist simply of checking with the publisher or in sources of reprint information to see if the work has been reprinted and is currently available.
The biggest stumbling block is likely to be the prohibition on “systematic copying” provided in section 108 (g). The Register and others have read that section as prohibiting all systematic copying, and have defined systematic as any program where there is a “system” involved.169 By this definition, any copying activity that is organized or routine and not random and isolated is problematic. This would appear to rule out all copying done as part of an organized program. As shown earlier, however, the author of this paper believes that the Register has erred in defining systematic copying as broadly he has and in applying it to all copying, including preservation copying. The Congressional Committee’s clear concern was with copying that allowed libraries to substitute the copy for a purchase; rarely is that the case with preservation copying. Moreover, the terms of the section do not even seem to apply to the copying of complete works under the preservation sections. As a result, although there is a serious conflict on this point, this author believes that preservation copying (at least the first copy clearly permitted under the statute) is not subject to the prohibition on systematic copying.170
Even if section 108 were unavailable for some reason, fair use might still be used to permit preservation copying. By its nature, however, what constitutes fair use is often uncertain. Each case calls for an application of particular facts to the four- part standard, including (1) the purpose and character of the use; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used; and (4) the effect of the use on the publisher’s potential market.
Despite the need for such an analysis, most preservation copying would probably meet the test. Virtually everyone views preservation copying as socially beneficial. It is consistent with the Constitutional purposes for copyright since the preservation of printed knowledge is necessary for the progress of science and the useful arts. Even publishers and individual copyright owners are likely to support such copying (as long as it does not interfere with sales) since it keeps their works on the shelves of libraries and in use by researchers.
The nature of the work might be a factor, but in many different places in the Act and its legislative history, Congress signaled an intent to allow broad preservation copying on a wide range of materials, including not just books, but also films and other copyrighted materials. Moreover, the economic impact of making of a single copy of an out-of-print work for use in a library is de minimus. If publishers really thought there was a significant market for sales of such works, they probably would have reprinted them. Thus, only the third factor, the proportion of a work that is copied, is likely to weigh against the copying under fair use.
Seltzer again focuses attention on the basic issue when he states that preservation copying is “essentially not part of the usual commodity-market mechanism,” and thus has “minimal impact on copyright-scheme economics.”171 Under his formulation of the fair use doctrine, it is even clearer why such copying should be fair use since preservation copying furthers the progress of knowledge, literature and the arts and does not deprive the publisher of an appropriately expected economic reward.
Further support for the idea that preservation copying would be “fair use” is found both in the legislative history of the Act and in the 1983 Report of the Register of Copyrights. In the context of film preservation, the Senate Committee Report said:
“A problem of particular urgency is that of preserving for posterity prints of motion pictures made before 1942….[T]hose that remain are in immediate danger of disintegration; they were printed on film stock with a nitrate base that will inevitably decompose in time. The efforts of the Library of Congress, the American Film Institute, and other organizations to rescue and preserve this irreplaceable contribution to our cultural life are to be applauded, and the making of duplicate copies for purposes of archival preservation certainly falls within the scope of ‘fair use’.”172
Although the life of a film is substantially shorter than that of a book, the parallel between the brittle books program and the situation described in the Senate Report is striking. It suggests that as the full magnitude of the brittle books problem becomes known, both fair use and section 108 may be used to justify such copying as may be necessary to preserve our heritage.
Finally, even the Register of Copyright seems to have agreed that preservation copying can be fair use. In his discussion of copying beyond section 108, the Register states:
“…one would likely conclude that the replacement of a lost, stolen, damaged, or deteriorating copy could be a fair use, while all ILL copying, a form of systematic copying lawful only via the proviso, could not be a fair use.”173
C. Protected Works–Multiple Copies for Other Libraries, for Sale, or for Conversion and Distribution in Digital Formats
Conceptually, the questions are more difficult after the initial preservation copy has been made. When libraries consider making or selling multiple copies, or loading the documents into an online file for electronic distribution to other libraries or end users, they have moved into more uncertain territory. Some of these activities may be permitted; some seem unlikely to be permitted under the current Act. In all such cases, however, the situation is ambiguous and the library and archives community might wish to seek a statutory clarification or find other protection before proceeding.
1. Copies for Other Libraries
Section 108 permits a library to make a replacement copy of a published work for itself. It also permits a library to make a copy of an unpublished work for deposit in another library. It does not explicitly permit a library to make a replacement copy of a published work for another library, and copies of unpublished works may be deposited in other libraries only “for research use”, not for general development of the collection. For obvious reasons, libraries want to use the master copies of materials to make them available to other interested libraries. Although such a program is problematic under the statute, some such copying may be permissible, some may not be.
Systematic copying aside, Section 108 only permits the making of a single copy of a work.174 But the magnitude of the preservation problem is such that no library can realistically convert everything, and it is highly desirable for one library to make a master and then supply copies to other libraries needing the same work. On the face of it, such activity does not appear to come under section 108(c) since that section does not include a distribution right. However, if the second library already holds the item in the collection, it would be entitled to make its own copy. Can it delegate that privilege to another library to act as its agent to make a copy of the work from an existing master? Such activity seems beyond the literal wording of 108, both because another library is involved and because it may naturally lead the library holding the master to make multiple copies. Nonetheless, it does not stretch the spirit of the law too far to argue that such copying should be permissible. The key elements of the section are undoubtedly the fact that the original is deteriorating and that the copy will replace175 an existing copy from which the publisher has already received a royalty. Limiting a library to doing its own preservation copying from its own collection is a built-in constraint against large-scale preservation copying that could cripple a coordinated national program. This is an area where the program might be on safer ground if an amendment to the Act were sought to explicitly permit libraries to engage in cooperative preservation programs.176
In the case of libraries that did not own the work in the first place, it is harder to make the case that the copying is for preservation purposes unless one library is withdrawing its copy in order to allow another to house the preservation copy. In the ordinary case of a library using the master microfilm to acquire new materials for its collection, it seems reasonably clear that under the Act the copyright owner is entitled to compensation for the copying of the work. It would be a copy of a complete work to be used in exactly the same manner as the original. It does not appear to fall under any of the library exemptions and it would be hard to make the case for fair use since the sale of new materials to libraries is a fundamental part of the market for any publisher. Absent a statutory amendment, it appears to this writer that the line must be drawn here, and that if libraries begin to make copies of preserved works available in this way, they will also need to be prepared to negotiate and pay appropriate royalties to copyright owners.
By extension, the same might be thought to be true about making such works available to individuals. However, in isolated cases (i.e., not related or concerted), a library may make a copy of a complete work for a user under the interlibrary provision of 108(e). That section requires that the copy become the property of the user for private research or scholarship and that the library taking the user’s request display the appropriate copyright warnings.
2. Converting the Material into Electronic Format
Conversion of materials into electronic formats under the authority of the preservation sections is also clearly beyond the intention of the drafters. Nonetheless, it may not be beyond the spirit of the section if the conversion could be carefully confined to such preservation copying as would otherwise be permitted. This could occur, for instance, by converting materials to CD-ROM instead of microfilm for storage but not enhancing the product digitally and not distributing it electronically. Such a limited conversion would not take full advantage of the digital format; it would simply permit more compact storage. In effect, it would be just a more compact version of the microform. In such a case, the limitation to “facsimile form” makes the law seem fundamentally anachronistic. The real issue is not digital versus analog; the real issue is, as always, subsequent distribution of multiple copies and keeping those copies under control. Despite this argument, the law as written limits the conversion to analog formats, and conversion to electronic form seems clearly proscribed.
3. Distribution of Copies Electronically
If the mere conversion and storage of materials electronically is not permitted, then a fortiori the electronic dissemination of protected materials is also problematic. In fact, however, but for the display right granted under 106, the electronic transmission of individual protected works could easily be governed by other parts of the act–fair use, interlibrary copying of individual works, etc. Indeed, the arguments of the Sony case could be easily extended to such a situation. Instead of time-shifting, for library materials the need might be for location shifting. For example, suppose the only copy of a 1963 medical journal needed by a physician in Oregon for research purposes was held by the National Library of Medicine in Bethesda, Maryland. From the point of view of the physician, if that material were transmitted electronically and read with no permanent copies being made,177 there is little difference in circumstances from the Sony case, and a court might find fair use. If, however, researchers used such arrangements to create their own paper or disk-based libraries then the copying would clearly be beyond what is permitted under Sony.
The difference, of course, is that the television station was lawfully broadcasting a movie or other program that was in the public domain or for which it had paid an appropriate royalty. Because of the language and legislative history of Sections 106 and 108, it appears to this writer that the construction of an online file of protected works and subsequently transmitting those works electronically to libraries or individual users is beyond what the act contemplates. If the brittle books program wishes to pursue this activity with works that are still protected, it would be wise to seek the permission of the individual publishers or to push for the development of a voluntary or compulsory licensing178 mechanism to provide appropriate royalties to claimants.