Section 108, Fair Use, and Copyright

Red Tape on Videotape: Legal Issues in the Preservation of VHS Collections

Kyle K. Courtney, Jessica Fjeld, and David Shea §108: LIBRARY & ARCHIVE COPYRIGHT SUPERPOWERS

@KyleKCourtney #108VHS How do libraries legally do what we do? Libraries and Archives in the Law . Special Allowances for Reproduction . Section 108: Reproduction by libraries and archives . Section 109: First Sale . Section 107: Fair Use . Section 121: Print Disabled . Section 504(c): Remedies for Infringement . Digital Millennium Copyright Act (DMCA) The many paths of Section 108

. Save It! . Preservation/Copy . The Scholar’s Delight . Document Delivery . “Get Out of Jail Free” . Reproducing Equipment . Ye Olde Loane . Interlibrary Loan Powerful opening provision…. “A Library Super Power”

. Notwithstanding the exclusive rights of the owners of copyright, section 108 provides that under certain conditions it is not an infringement of copyright for a library or archives, or any of their employees acting within the scope of their employment, to reproduce or distribute…. First Steps [Section 108(a)]

•In order to qualify for use of any part of §108, a library or archive first must comply with three requirements: First Steps [Section 108(a)]

• §108(a)(1): The copying must be made “without any purpose of direct or indirect commercial advantage.” • §108(a)(2): The library must be open to the public or to outside researchers • §108(a)(3): Each copy made must include a notice of copyright [Similar to the notice we display on our public copiers, scanners, etc.]

• *Different requirements for published and unpublished works. • 108(b) outlines the conditions for making preservation copies of Unpublished unpublished materials: rare, Works unique, hazard of loss, and can't [Section be replaced on open market (the conditions for making 108(b)] preservation copies are significantly less rigorous) • The following conditions must be met: Unpublished Works [Section 108(b)]

• §108(b) The copy is solely for preservation or security purposes (or for deposit at another library for research); and.... • §108(b)(1) The work is currently in the collection of the library making the copy. • * Less rigorous requirements for copying for preservation, but if one of the copies is digital, however, that copy may not be used “outside the premises of the library or archives.” “Premises of the Library”

• What is the “premises” of the library then and today? • Various Answers: • Legislative history • Section 108 Study Group • Your answer (practicing community)?

Published Works [Section 108(c)]

• Up to three copies of a published work may be reproduced solely for the purpose of replacing a copy that: Published Works [Section 108(c)]

• §108(c) The original work is damaged, deteriorating, lost, stolen, or in “a format that has become obsolete;” and... • §108(c)(1) The library or archive has, after a reasonable effort, determined that an unused replacement cannot be obtained at a fair price; and... • §108(c)(2) While the statute also explicitly permits digital formats for preservation, access to the digital copy must be limited to the “premises of the library.” Obsolete format? What exactly is an obsolete format? Obsolete format?

• Are VHS’s, cassette tapes, or record players considered statutorily “obsolete?” • The definition states that “a format shall be considered obsolete if the machine or device necessary to render perceptible a work stored in that format is no longer manufactured or is no longer reasonably available in the commercial marketplace.” • Betamax, VHS, and Laserdisc obsolete? Can easily find these players on eBay and other secondary markets Let’s Play: IS IT OBSOLETE?

• Floppy Disks • Laserdisc • Vinyl Records • VHS • Music Tapes • 8-Track

Get Out of Jail Free: Limited Liability §108(f) Exemption

Nothing in the provision “shall be construed to impose So long as the “equipment liability upon a library or displays a notice that the archives or its employees for making of a copy may be the use of unsupervised subject to the copyright law.” reproducing equipment located on the premises”

• If the library places a © notice on any type of photocopier/scanning machine,  avoid liability Get Out of for infringements Jail Free: • Use is not supervised by staff. §108(f) • User liability? Exemption • Cost of compliance (stickers); Benefit (potentially enormous © judgment)

The Scholar’s Delight: Document Delivery

Archivists can make copies for a patron, reproducing single articles for “private study, scholarship, or research” or reproducing an entire work where a replacement copy cannot be found for a fair price [§ 108(e)] Permits lending of reproductions of copyrighted works to users in other libraries for private, noncommercial use [§ 108(a), (d)] §108 Exception for Libraries – Except….

However, the exemptions of section 108 for library copying under sections 108(d) and 108(e) do not apply to a musical work, a pictorial, graphic or sculptural work, or to a motion picture or other audiovisual work … [Except for] pictorial or graphic works published as illustrations, diagrams, or similar adjacent to works." Last point….

Digitization rights provided to libraries and archives under section 108(d) and (e) do not extend to musical, pictorial, graphic, or sculptural works, or to motion pictures or other audiovisual works….

VHS, music CD’s, art and photography books, DVD’s, etc. are excluded… • Often under copyright…. • But, determine the risk… The little used and mysterious §108 (h)

. Libraries may copy or digitize works that are in the last 20 years of their copyright term. . Test: Libraries should make a reasonable effort to determine that: . the work is not subject to normal commercial exploitation, . a copy cannot be obtained at a reasonable price, and . the copyright holder has not filed notice with the Register of Copyrights that either of the above conditions apply.

Ye Olde Loane:

Section 108 and Interlibrary Loan

.Section 108(g) attempts to balance the interests of publishers and libraries regarding interlibrary loan arrangements Publishers and 108 ILL

. During the years preceding amendment of the copyright l a w i n 1 9 7 6 , p u b l i s h e r s lobbied hard for strongly worded anti-ILL clauses . Libraries, fairly certain that such language would prevent normal and customary ILL arrangements, lobbied hard for additional language Libraries fight back! Section 108(g)(2)

. Section 108(g) proviso: . Provided, that nothing in this clause prevents a library or archives from participating in interlibrary loan 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. A select committee of copyright experts, convened in 2005 by SECTION 108 the Library of STUDY GROUP Congress' Copyright Office, and charged with updating 108 for the digital world • Lawyers, Librarians, Lobbyist, Publishers, Academics, etc. Study Group agreed on some issues….

On other issues?

Not so much…. “libraries, archives, and NEW museums…” The Copyright Office’s Section 108(i)’s ban on musical works, pictorial, graphic or sculptural works, 108 Discussion and to motion picture or other Document (2018): audiovisual works is ELIMINATED Highlights Removal of 3 copy limit . Reframes “published” vs. “unpublished” The Copyright battle Office’s Section 108 . Proposed: “disseminated to the public” by Discussion Document the copyright owner. Highlights . Libraries, archives, and museums could b e exempt from copyright liability f o r violating non-negotiable contract terms that prohibit institutions from engaging in preservation activities permitted under Section 108. “Premises of the library” subject to re- The Copyright interpretation (by who?) Office’s Section 108(c)(2) still no public access for 108 Discussion preservation copies Document: Used/unused for replacement copies has a new test: “usable” Concerns No format shifting allowed A “market check” includes a check for a licensed copy - would then serve as a substitute Section 108, Fair Use and Copyright 17 U.S. Code § 106. Exclusive rights in copyrighted works

Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following (1)to reproduce the copyrighted work in copies or phonorecords; (2)to prepare derivative works based upon the copyrighted work; (3)to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending…

A Library May Make One Copy of Any Work

17 U.S.C. §108(a) A Library May Make Three Copies of a Commercially Unavailable Work

Two Requirements for Published Works (§108(c)(1)):

1. The Market Check 2. The Condition Check

17 U.S.C. §108(b),(c) A Library May Make Three Copies of a Commercially Unavailable Work

Two Requirements for Published Works (§108(c)(1)):

1. The Market Check 2. The Condition Check

“Obsolete”

17 U.S.C. §108(b),(c) §108(b) and (c) does not shield lending copies in a “digital format” off-site • But what constitutes a digital format? Enter The Fair Use Savings Clause

17 U.S.C. §108(f)(4). “Nothing in this section… in any way affects the right of fair use as provided by section 107”. The Four Fair Use Factors

(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.

17 U.S.C. §107 The First Factor: The Campbell Case and the Meaning of Transformative

2 Live Crew “Pretty Woman”

Roy Orbison “Oh, Pretty Woman”

The Second Factor: Fiction v. Non-Fiction, an

Published v. Unpublished

Salinger v. Random House (2d. Cir. 1987) The Third Factor: The Amount and Substantiality of the Portion Used

The Betamax case (1984) and “Time-Shifting” The Fourth Factor: Market Harm

Authors Guild, Inc. v. HathiTrust (2d. Cir. 2014)

Authors Guild v. Google, Inc. (2d. Cir. 2015) The Digital Lending of Commercially Unavailable Works

Fair Use Factor Digital Lending: Fair or Unfair use Purpose and Character Neutral/Fair Use not transformative but powerful ”nonprofit educational purpose” ⎯ Nature of the Copyrighted Work Neutral varies with particular work and factor downplayed by courts ⎯ Amount and Substantiality Used Neutral verbatim copies but necessary for libraries to fulfill their mission ⎯ Harm on the Market Fair Use because the market is nonexistent The Digital Lending of Commercially Unavailable Works

Note the role of the market check (§108(c)) The Digital (Streaming?) Lending of Commercially Available Works

Fair Use Factor Digital Lending: Fair or Unfair use Purpose and Character Neutral/Fair Use not transformative but powerful ”nonprofit educational purpose” ⎯ Nature of the Copyrighted Work Neutral varies with particular work and factor downplayed by courts ⎯ Amount and Substantiality Used Neutral verbatim copies but necessary for libraries to fulfill their mission ⎯ Harm on the Market Fair Use if and only if use the by patrons is restricted in some way ⎯ Q&A

Kyle K. Courtney Jessica Fjeld David Shea