Preservation and Archiving
Libraries and archives have long been involved in preserving materials in their collections. Historically, this involved preserving the artifact, that is, the book volume, the periodical issue, the newspaper, or handwritten letters and manuscripts. Institutions conserved books by treating the bindings and pages of books. They created climate-controlled facilities aimed at stopping deterioration. They also microfilmed back runs of journals and newspapers, both to facilitate use and, primarily, to preserve them. Then, in the 1980s and 1990s, as computer technology was developing, it became clear that many nineteenth century works had been printed on acidic paper and these "brittle books" threatened to decimate library collections because of rapid deterioration. Not only were library collections threatened but also the country's literary history.
While preservation of original artifacts continues, it is now possible to digitize these works in order to preserve the content. Further, digitization presents new and better ways to search these titles. Many of these works are in the public domain due to their age, and therefore there are no copyright barriers to digitizing to preserve them.
The Copyright Act of 1976 recognized libraries' need to preserve unpublished works and to replace works that had disappeared from collections. Section 108(b) applies to unpublished works in a library's collection and 108(c) to replacement of lost, damaged, deteriorating, stolen, and obsolete works. The section io8(i) exclusions do not apply to preservation and replacement, so audiovisual works, sound recordings, and such may be duplicated for preservation and replacement. In 1998, these two sections were amended by the Digital Millennium Copyright Act (DMCA).
Section 108(b) permits libraries and archives to reproduce unpublished works for "preservation, security or deposit for research in another library." This section may be used either to photocopy or digitize original letters and manuscripts to prevent handling fragile works. In fact, the library may make up to three copies of these works, one of which may be digital. But the digital copy may not be used outside the premises of the library. Libraries may also replace works in their collection under section 108(c) if those works have been damaged, deteriorating, lost, stolen or obsolete, but only after the library makes a reasonable effort to obtain an unused copy of the work at a fair price. The statute defines "obsolete" as a work for which the equipment to see or hear the work is no longer reasonably available in the commercial marketplace. For replacement purposes, a library may make up to three copies of a work including a digital copy. The same premises restriction also applies to the digital replacement copies.
Section 108(h) contains an additional preservation section, which is broader than just preservation. Added in 1998 by the Copyright Term Extension Act, section 108(h) applies only to works in their last 20 years of the copyright term. The section applies not only to libraries and archives but also to nonprofit educational institutions. They may reproduce, display or perform these works by print, analog or digital means for purposes such as preservation, scholarship or research. However, a library that seeks to take advantage of this statute must ascertain that the work is no longer subject to normal commercial exploitation, that a copy is not available at a reasonable price or have notice from the copyright holder that either of these conditions exists.
The questions in this chapter center on making preserved copies available to users, the meaning of particular language in deeds of gift, archiving e-mail, and digitally archiving faculty publications.
Under section 108(c) a library is permitted to reproduce a lost, damaged, stolen or deteriorating work in its collection after it makes a reasonable effort to find an unused copy at a fair price. What is a "reasonable effort" and a "fair price"?
While none of the statutory language defines these terms, there is a definition of "reasonable effort" in the legislative history. House Report 94-1476, which accompanied the 1976 Act, says this about reasonable investigation specifically in relation to section 108(c):
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 using the address listed in the copyright registration), or an authorized reproducing service.
While this definition is not particularly helpful, it does provide some guidance. It really means that a library should do the normal things it does to replace an entire volume and to exercise independent judgment about what constitutes a reasonable investigation for the particular type of work involved.
There are two published definitions of "fair price" related to this issue. Both give some guidance, one from the viewpoint of the copyright holder and the other from the users of copyrighted works. The first comes from a booklet published by the Association of American Publishers in 1978 dealing with nonprofit library use. It states that the fair price of a work is: (a) the suggested retail price if available from the publisher; (b) if not so available, the prevailing retail price or (c) if an authorized reproducing service is used, the normal price charged by that service. A 1995 American Library Association publication, The Copyright Primer for Librarians and Educators (Janis H. Bruwelheid, 2d ed., p. 27) defines fair price as:
The fair price of a reproduction is the price as close as possible to manufacturing costs plus royalty payments. If the original format was multivolume and single volumes are not available, it could be argued that the full set price is not a fair price for a single volume.