How useful has section 108(h) been to libraries and archives?

Designed to ameliorate the effects of term extension, section 108(h) was added to the Copyright Act in 1998. It is an interesting provision that allows libraries, archives and nonprofit educational institutions to reproduce, distribute, perform or display copyrighted works during the last 20 years of their terms if certain conditions are met. So, at this point, the author has already been dead for 50 years. A library may not take advantage of this exception if: (1) the work is subject to normal commercial exploitation; (2) if a copy can be obtained at a reasonable price or (3) the copyright owner provides notice that either of the other two conditions are met.

The benefit is that under section 108(h), a library may digitize a work and put it on a publicly accessible website. In other words, there is no premises restriction as in sections 108(b) and (c). The U.S. Copyright Office created a process by which publishers could electronically provide the notice in (3) above. Unfortunately, not one single copyright owner has utilized this process for notification.

How long should a school archive its e-mails? Do e-mails that contain copyrighted material subject the institution to liability for infringement due to the archiving?

Each organization or institution should have a record retention policy which includes how long it will archive e-mail. For state-supported institutions, the length of time should take into account the state government record retention requirements. For private institutions, the length of time may be based on the statute of limitations for bringing suit that would be based on any e-mail. In any event, most libraries do not stand alone but are a part of a larger institution or organization, and their policies should be those of the libraries' parent organizations.

On the other hand, a library might be responsible for archiving e-mail of a particular individual or entity as a part of a general archival project, in which case the length of retention would be the same as for other items it archives for research. The retention policy might be "forever" if the e-mails are to be archived and made available to future researchers.

The copyright infringement issue is much easier to answer. Even if any archived item contains any infringing material, the institution is not likely to be liable under section 512 of the Copyright Act, the online service provider liability provision. In offering e-mail services to its staff, faculty and students, the institution is considered to be a passive provider, and it would not be liable for the infringing activity of a user of the service if certain easy to satisfy conditions are met such as: the institution neither selects the contents nor the recipients of e-mail and receives no financial benefit from a user's infringing activity. Once the institution is aware of the infringing activity of a user, however, it has a responsibility to take disciplinary action and could even cancel the user's access to the e-mail service.

In old deeds of gifts to libraries for manuscripts, the term "literary rights" or "literary property rights" reserved often appears. What does this mean?

Authors and their heirs have what is called the right of first publication. This means that for an unpublished work, the author and her heirs retains the right to publish that work or to determine whether it will be published at all. It is only the physical copy of the manuscript that is being donated and not the copyright. Thus, the library would have the right to publish the work either in print or by posting it on a web page only after the work has entered the public domain or if the copyright owner grants permission. This would occur 70 years after the author's death except for works created before 1978 which remained unpublished through the end of 2002. For those works, the term is life of the author plus 70 years or the end of 2002, whichever is greater. Thus, many of these works are already in the public domain.

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