COPYING BY LIBRARIES IN THE UNITED STATES: REVIEWING SECTION 108 OF THE US COPYRIGHT LAWS

COPYING BY LIBRARIES IN THE UNITED STATES: REVIEWING SECTION 108 OF THE USCOPYRIGHT LAWSAuthor(s): Jerry L. McBrideSource: Fontes Artis Musicae, Vol. 55, No. 2 (April-June 2008), pp. 363-376Published by: International Association of Music Libraries, Archives, and Documentation Centres(IAML)Stable URL: http://www.jstor.org/stable/23512439 .

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COPYING BY LIBRARIES IN THE UNITED STATES: REVIEWING SECTION 108 OF THE US COPYRIGHT LAWS

Jerry L. McBride1

English Abstract Section (§) 108 of Title 17 of the United States Code outlines the exceptions by which libraries and archives may make copies of copyrighted materials without seeking per mission of the copyright holders. The law was last revised in 1976 when the issue of

photocopying in libraries was widely debated. Now that more materials are available

digitally and copies can be distributed electronically, the Copyright Office at the

Library of Congress established a group to study § 108 and to make recommenda

tions to the US Congress on ways the law should be revised to protect the interests of

copyright holders and accommodate the needs of libraries and archives. The article examines the issues that music libraries presented to the § 108 Study Group, so that librarians may use digital technologies to further research and to provide services to

library patrons involving music within the boundaries of copyright law, and some of the conclusions reached by the Study Group.

French Abstract L'article 108 du chapitre 17 du Code concernant le droit de reproduction aux Etats Unis expose les exceptions dont bénéficient les bibliothèques et archives, à savoir la

possibilité de copier des documents soumis au droit d'auteur sans en demander la

permission à leurs détenteurs. La dernière modification de cette loi date de 1976, à l'heure où la question de la photocopie en bibliothèque était largement débattue. Suite au développement de la numérisation et des possibilités de diffusion électronique, le

Copyright office de la Bibliothèque du Congrès a mis en place un groupe de travail

afin d'étudier l'article 108. Ce groupe de travail est force de recommandations auprès

du congrès législatif afin de trouver moyen de modifier la loi en protégeant les

intérêts des ayant droit, tout en s'accordant avec les besoins des bibliothèques et archives. Ce article examine les points importants présentés par les bibliothèques au

groupe de travail sur l'article 108, en faveur des bibliothécaires, pour qu'ils puissent utiliser les technologies numériques au service de la recherche et fournir au public des services liés à la musique en respectant la loi et le droit d'auteur.

1. Jerry McBride is Head librarian of the Music library and Archive of Recorded Sound at

Stanford University, Stanford, California. The author wishes to acknowledge the members of the

Music Library Association Legislation Committee chaired by Gordon Theil, whose discussions

and conclusions greatly contributed to the ideas presented in this article.

363



364 FONTES ARTIS MUSICAE 55/2

German Abstract

Der Paragraph 108 des Artikel 17 des United States Code umreißt die Ausnahmen, nach denen Bibliotheken und Archive Kopien urheberrechtsgeschützter Materialien machen dürfen, ohne eine Genehmigung des Rechteinhabers einzuholen. Dieses Gesetz wurde zuletzt im Jahr 1976 novelliert, als man das Thema „Fotokopieren in Bibliotheken" breit diskutierte. Heutzutage sind weit mehr Materialien in elektronischer Form verfügbar und auch Kopien können elektronisch übermittelt

werden. Daher hat das Copyright Office der Library of Congress eine Arbeitsgruppe ins Leben gerufen, die sich mit dem Paragraphen 108 befasst. Für den Kongress erarbeitet sie zu dessen erneuter Novellierung Vorschläge, die den Interessen der

Rechteinhaber und den Bedürfnissen der Bibliotheken gerecht werden. Dieser Aufsatz untersucht die besondere Thematik, die Musikbibliotheken für die

Arbeitsgruppe zum Paragraphen 108 darstellen, damit gewährleitstet werden kann,

dass (Musik-) Bibliothekare die Digitaltechnologie im Rahmen der

Urheberrechtsgesetze für Ihre Dienstleistungen nutzen können.

I. Introduction

In the United States, the U.S. Code, Title 17, section (§) 106 grants the owner of a copyright the exclusive right: "(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 copy righted work to the public by sale or other transfer of ownership, or by rental, lease, or lending; (4) ... to perform the copyrighted work publicly; (5) ... to

display the copyrighted work publicly; and (6) ... to perform the copyrighted work publicly by means of a digital audio transmission."2 This exclusive right is subject to limitations outlined in §107-122. Of these limitations to copyright, two are applied most frequently in the library setting: the library exception (§ 108) and fair use (§107). Fair use is generally applied by individuals engaged in activities such as study and research and similar non-profit endeavors. The law concerning library exceptions to copyright is applied to copying done for libraries and by library employees in the course of their work. There may be instances where a copy may be made under fair use that is not granted under the library exceptions. This paper addresses the library exceptions to copy right, and specifically on how notated music and musical sound recordings are affected by the provisions of § 108.

The Copyright Office of the Library of Congress is the agency responsible for overseeing the administration of copyright laws in the United States, which are contained in Title 17 of the United States Code. Section 108, entitled "Limi tations on exclusive rights: Reproduction by libraries and archives," explains the conditions under which libraries may make copies of copyright protected works without seeking permission from the copyright holders. In April 2005, the National Digital Information Infrastructure and Preservation Program (NDIPP) along with the Copyright Office established the Section 108 Study Group, whose mission was "to conduct a reexamination of the exceptions and limitations applicable to libraries and archives under the Copyright Act, specifi

2. U.S. Code, Tide 17, § 106.



COPYING BY LIBRARIES IN THE UNITED STATES 365

cally in light of the changes wrought by digital media."3 The Study Group is sued its final report in March 2008 containing its conclusions and recommen dations for possible legislation.4

II. History of §108 legislation

An exception in the law for libraries to exclusive copyright was largely the result of the photocopy technology that emerged in the 1960s. The widespread use of photocopy machines for use by the public and by libraries resulted in the inclusion of § 108 in the copyright law enacted in 1976, the first large-scale revision of the U.S. copyright law since 1909.

Before the invention of the photocopier, researchers relied on taking notes and hand copying materials, which generally posed no problems for the pub lishing industry. Nonetheless, there were less commonly-used copying tech

nologies before the 1960s that were used by libraries, such as photographing and the use of photostats. As a result of these practices, in 1935 an informal

policy known as the "Gentlemen's Agreement" was drafted by the National

Association of Book Publishers and the Joint Committee on Materials for

Research of the American Council of Learned Societies.5 This voluntary agree ment sets out what was considered "fair use" for making single copies for re search purposes without first seeking the permission of the copyright holder. The basic points of this agreement appeared in other early policies, such as the

1941 "Reproduction of Materials Code" and the 1952 "General Interlibrary Loan Code" issued by the American Library Association, which expanded on

the "Gentlemen's Agreement" and also addressed issues related to copying un

published materials, out-of-print works, and interlibrary loans.6

While these informal agreements and policies were adequate through the

1950s, serious concerns began to arise in the 1960s as the amount of library

photocopying increased. Various studies and attempts to revise the law were undertaken during the decade. However, in 1968 the publishing firm of Williams & Wilkins sued the National Library of Medicine and the National Institutes of Health for copyright infringement—the first law suit of this kind

against a non-profit library. The case was decided in 1972 against the National

Library of Medicine, reversed on appeal, and then appealed to the U.S. Su

preme Court, which split in a 4-4 vote on the case.7 Legislation was needed, since not even the courts could agree whether or not such library copying was "fair use." Thus, § 108 covering reproduction by libraries and archives was

3. Section 108 Study Group, "Mission Statement," Library of Congress, http://www.loc.gov/

sectionl08/mission.html.

4. Section 108 Study Group, "The Section 108 Study Group Report," Library of Congress,

http://www.sectionl08.gov/docs/Secl08StudyGroupReport.pdf. 5. Mary Rasenberger and Chris Weston, "Overview of the Libraries and Archives Exception in

the Copyright Act: Background, History, and Meaning," (Washington, D.C.: U.S. Copyright Office

and Office of Strategic Initiatives, Library of Congress, 14 April 2005), p. 3, http://www.loc.gov/

sectionl08/docs/108BACKGROUNDPAPER(final).pdf. 6. Ibid., p. 6-8.

7. Ibid., p. 16,18-20.




eventually included in the 1976 Copyright Act. Concurrent with the Williams

& Wilkins case, Congress established the Commission on New Technological Uses of Copyrighted Works (CONTU) to provide advice on many of these very issues. The guidelines issued by CONTU on photocopying and interlibrary loan were published in Congress's Conference Report to the 1976 Copyright Act and are guiding principles used today particularly in the area of interli

brary loan.8

Only minor changes were made to § 108 after the 1976 Copyright Act was

passed. Neither the 1998 Digital Millennium Copyright Act (DMCA) nor the

1998 Copyright Term Extension Act (CTEA) made changes of substance, and

neither of these bills have had a significant impact on the exceptions allowed

for library copying. However, the advances in digital and computer technology are constantly testing the limits of the Copyright Act as amended by the

DMCA and CTEA which was examined by the Section 108 Study Group.

III. Summary of § 108

Briefly, § 108 is composed of nine subsections.

• Subsection (a) establishes that the exceptions to copyright in § 108 ap

ply to publicly accessible libraries and archives as long as the copies are

not made for commercial purposes. • Subsection (b) allows three copies to be made for preservation pur

poses as long as any digital copies are not made available to the public outside of the library.

• Subsection (c) allows the library to make a replacement copy of an item that is damaged, deteriorating, lost, or stolen if it is out-of-print.

• Subsection (d) allows copies to be made for private study, scholarship, and research of single articles or small portions of works.

• Subsection (e) allows the library to provide a copy of an entire work for

private study, scholarship, and research for out-of-print items. • Subsection (f) absolves the library of any liability for copies made on

public copying machines as long as a copyright notice is posted on it and protects the right of fair use as defined under § 107.

• Subsection (g) allows the library to make only single copies at a time and for the purpose of interlibrary loan as long as the copying cannot substitute for a subscription or purchase of a work.

• Subsection (h) allows "orphan works" to be copied in the last twenty years of copyright for the purpose of preservation or research.

• Subsection (i) states that the provisions of § 108 do not apply to music, art works, and films.

IV. Issues affecting music in libraries

Of course, the law affects libraries in all subject areas, but nearly every part of § 108 has implications for music. The Section 108 Study Group conducted

8. Ibid., p. 21.




two roundtable discussions followed by a request for written comments based on questions published in the Federal Register.9 Representatives from the Music Library Association (MLA) attended both roundtables, and the MLA

Legislation Committee submitted written comments detailing the MLA posi tion.10 Other organizations interested in music contributed to the debate and submitted written comments, including the Association for Recorded Sound Collections (ARSC); the Record Industry Association of America (RIAA); the American Society of Composers, Authors, and Publishers (ASCAP); and the Society of European Stage Authors and Composers (SESAC).

A. Eligible libraries

In subsection (a) of § 108, the law does not explicitly define the terms

"library" or "archive," but it does set out the conditions that libraries must

observe in order to take advantage of the exemptions:

§ 108 (a) (2) The collections of the library or archives are (i) open to the public, or

(ii) available not only to researchers affiliated with the library or archives or with the institution of which it is a part, but also to other persons doing research in a spe cialized field.11

Further, libraries are allowed to make reproductions of copyrighted works, if

"the reproduction or distribution is made without any purpose of direct or in

direct commercial advantage."12 The Study Group wanted to know if library copying should be limited only

to non-profit and government libraries. The MLA stated that such a limitation

would adversely affect scholarship and the preservation of important cultural

materials. They cited examples of various corporate libraries and archives in

cluding music publishers, recording companies, and film and television com

panies. Most of these corporations have libraries and archives containing music of significant historical interest and importance. While not generally publicly accessible, these libraries are sometimes made available to re searchers at no charge and for no direct profit. Narrowing the law to only li

braries in non-profit institutions would impede scholarship and remove the

current exemption for preservation copying.13 Therefore, it is important that

the copying request be non-commercial in nature rather than that the copying

activity takes place in a non-profit institution.

9. "Notices," Federal Register 71, no. 31 (15 February 2006): p. 7999-8002 and "Notices,"

Federal Register 71, no. 232 (4 December 2006): p. 70434-70440.

10. Gordon Theil and Eric Harbeson represented MLA at the meetings on 8 March 2006 in Los

Angeles and 31 January 2007 in Chicago, respectively. The written comments are published at

http://www.loc.gov/sectionl08/docs/Theil_MLA.pdf and http://www.loc.gov/sectionl08/docs/

Harbeson-MusiclibraryAssn.pdf. 11. U.S. Code, Title 17, § 108 (a) (2). 12. Ibid., § 108 (a) (1). 13. Music Library Association, "Before the Section 108 Study Group and the Copyright Office,

Library of Congress, in the Matter of Issues Relating to the Exceptions and Limitations Applicable to Libraries and Archives under Section 108 of the Copyright Act Comments of the Music library

Association," 17 April 2006, p. 1-2, http://www.loc.gov/sectionl08/docs/Theil_MLA.pdf.




On the other side of the issue, the RIAA argued for the inclusion of a defin

ition of the terms, "libraries, archives, and museums." They wanted to insure

that any exemptions to copyright are "focused on promoting scholarship and

research."14 In an even more restrictive vein, ASCAP argued that the only valid

copyright exemption is "to permit classroom and systematic teaching by non

profit educational institutions."15 These organizations claimed that libraries, educational institutions, and other similar non-profit entities make use of copy

righted materials, but that their non-profit status does not necessarily give them the right to deny copyright holders fair compensation. Their comments

are directed primarily toward the collection of performance royalties on musi

cal recordings rather than concerns about reprinting or publishing music on

paper or electronically. The Study Group agreed with the position of the MLA that libraries in for

profit settings should still be able to take advantage of the § 108 exemption, and stated: "Certain libraries and archives that belong to for-profit entities, such as for-profit hospitals or corporate libraries or archives, support research and education in ways consistent with the original intent of section 108. Al

though technically for-profit, these entities also serve a public function—for ex

ample, by providing timely access to specific information and materials on a

noncommercial basis."16 The Study Group recommended that additional quali

fying criteria emphasizing the public service aspects of the libraries would clar

ify the types of libraries the law was intended to address.

B. Preservation copying

Subsections (b) and (c) allow libraries to make up to three copies of an item

"solely for purposes of preservation" or for "replacement of a copy or phono record that is damaged, deteriorating, lost, or stolen, or if the existing format in which the work is stored has become obsolete" provided that any digital copies made by the library are used and distributed only on the premises.17 There are several issues here that are problematic when considering digital preservation. Digital preservation systems need multiple backup copies to

guard against catastrophic failure, and numerous transient copies are made in the course of creating a digital preservation master copy. The real issue here is not the number of copies made by the library, but rather the conditions un der which the library distributes or makes a copy available for use. For exam

ple, the library could require the user to sign a document affirming knowledge

14. Steven M. Marks (General Counsel, RIAA) and Steven J. Metalitz, e-mail message to Mary

Rasenberger (Director of Program Management, National Digital Information Infrastructure and

Preservation Program, Office of Strategie Initiatives, Library of Congress), March 2007, p. 2,

http://www.loc.gov/sectionl08/docs/MarksMetalitz-RIAA.pdf. 15. Joan M. McGivern and Sam Mosenkis (ASCAP), "Before the Office of Strategic Initiatives,

Copyright Office, Library of Congress: Comments of the American Society of Composers Authors

and Publishers," 9 March 2007, p. 5, http://www.loc.gov/sectionl08/docs/McGivernMosenkis

ASCAPpdf. 16. Section 108 Study Group, "The Section 108 Study Group Report," Library of Congress,

http://www.sectionl08.gov/docs/Secl08StudyGroupReport.pdf, p. 38.

17. U.S. Code Title 17, § 108 (b) and (c).




that further distribution of a library copy without permission is an infringe ment of copyright, as a condition for providing a digital copy. In addition, li braries could make use of technological means to discourage further copying and distribution, including the use of digital watermarks for text and image materials and streaming of audiovisual files, rather than allowing downloading or producing physical copies on compact discs for recordings.18

The conditions in the law regulating library copying for the purpose of re placing items are the most curious of all. The law stipulates that a copy of the original item may be made, but only after the item is damaged, lost, or stolen. This may be possible in the case of some (although certainly not all) printed textual works where other copies may be available from other libraries for reproduction, or where the original item is not damaged beyond use, but it is never acceptable in the case of analog sound recordings or digital originals. If a digital file is damaged, the ability to read that file could be severely compro mised so that the information is no longer present. In the case of analog sound

recordings where every act of playing the original causes a degradation of the audio signal, preservation steps need to be taken as early as possible before the deterioration of the original, otherwise it is not being preserved. The law should not discourage or prohibit the production and archiving of copies made and retained solely for the purpose of preservation at any point in the life of an item. The library's preservation master copy is not available for use by the pub lic. Instead, it is only used to generate a copy for a library patron if the library's publicly accessible copy were not commercially available for a fair price and/or in a currently usable format.

The idea that the use of digital copyrighted materials should be restricted to the physical premises of a single building does not recognize one of the primary advantages of digital technology. Instead, it is possible to set up con trols to limit distribution to a single IP address or digital domain of the owner of a lawfully acquired work. Interlibrary loan of digital materials could use these same types of limits when loaning single works to another institution or individual.19

The Study Group recognized that the three-copy limit was impractical for

preserving an item digitally, and consequently, they recommended that a flexible standard be adopted allowing libraries to make a "limited amount" of

copies as is "reasonably necessary to create and maintain a copy for preserva tion or security purposes."20 Further, "as noted throughout [its] Report, the

Study Group concluded that it would be more effective to control the distribu tion and access to copies than to mandate an absolute limit on the total num ber of permissible copies."21

The Group also made important distinctions between the ways unpublished (subsection b) and published works (subsection c) should be treated. In the case of unpublished works that have not been publicly disseminated, the

18. Theil, p. 5-6.

19. Ibid., p. 5.

20. Section 108 Study Group, p. 61.

21. Ibid., p. 64.




creator's right of first publication needs to be protected and limitations on

the distribution of unpublished works under § 108 should be limited. It was

agreed that if the original form of an item was as a digital work residing on a

physical item, such as a CD, the physical item could be loaned to a remote user.

However, full agreement could not be reached concerning remote access to

digital or digitized copies of unpublished works. Some thought that sufficient

safeguards exist to limit access to only authorized users, but others believed that this would violate the right of first publication.22

For published works, the situation is considerably more complicated. The

Group recommended that a "preservation only" provision be added to § 108 c

and limited to "at risk" materials. This recognizes that waiting to preserve an item until it is deteriorating, damaged, lost, or stolen is counter to the purpose of preservation. At-risk materials "include ephemeral online content such as

websites, material in nonsustainable formats or media that rapidly deteriorate

(magnetic tape) or depend upon obsolete software and hardware (certain CD

ROMs), content stored only in one place, and content likely to be overwritten or destroyed unless actions are taken to preserve it."23 Further, creating copies under § 108 c would be limited to institutions capable of producing and main

taining digital copies using "best practices" with sophisticated preservation systems to monitor and limit distribution.24 Despite these suggestions in the re

port, the Study Group was unable to agree on a precise definition of "at risk" materials. The future adoption of any "preservation only" provision to § 108 (c) would be highly dependent upon a clear and agreed-upon definition.

Subsection (d) limits the amount of copying done at the request of a library user to "no more than one article or other contribution to a copyrighted col lection or periodical issue, or to a copy or phonorecord of a small part of any other copyrighted work," and subsection (e) allows a copy to be made of an item that can no longer "be obtained at a fair price," as long as the item is used

only for "private study, scholarship, or research."25 The RIAA has requested that the condition of private study be dropped from the law in favor of only scholarship and research, because "it presents a high risk of abuse, and the

legitimate aspects of this use are already covered under scholarship and research."26

The Study Group recommended that the single-copy restriction be "re

placed with a flexible standard more appropriate to the nature of digital mate

rials, such as allowing a limited number of copies as reasonably necessary for the library or archives to provide the requesting user with a single copy of the

requested work." But, their conclusions did not change the language regard ing copies that could be obtained for a "fair price," or address the possible elim ination of the term, "private study." However, the exemptions from copyright protection in subsections (d) and (e) designed to further "private study, schol

arship, or research," do not apply to musical works under the current law.

22. Ibid., p. 66-68.

23. Ibid., p. 72.

24. Ibid., p. 70.

25. U.S. Code Tide 17, § 108 (d) and (e). 26. Marks and Metalitz, p. 2.




C. Music exemption (§ 108 (i))

At the very end of § 108 it states:

The rights of reproduction and distribution under this § do not apply to a musical work... except that no such limitation shall apply with respect to rights granted by subsections (b) and (c), and (h), or with respect to pictorial or graphic works pub lished as illustrations, diagrams, or similar adjuncts to works of which copies are re

produced or distributed in accordance with subsections (d) and (e).27

The exemptions for library reproduction do not apply to music, except for the

purposes of preservation and the replacement of damaged or missing copies (subsections b and c). Nor is music covered even when it is embedded in a

larger textual work, unlike visual art. Even works of fiction and poetry, also creative works, are not treated this strictly—an obvious contradiction.

MLA and ARSC both argue that subsection (i) should be removed from the

law, "because it constitutes an arbitrary and inequitable distinction between

textual and non-textual content."28 There is no particular reason why musical scores should not be made available under the terms of subsections (d) and (e) for the purposes of private study, scholarship, and research, just as textual ma

terials are. In addition, the same standards should be applied for sound record

ings as for scores. A recent study found that "ten percent or less of listed

recordings have been made available by rights holders for most periods prior to World War II. For periods before 1920, the percentage approaches zero."29

Further, MLA recognizes that subsection (e) should be applied in the case of

sound recordings, so that if a library user requests a copy of a sound record

ing that is commercially available at a fair price, the library would not make a

copy of the recording for the user, but direct that it be purchased. By applying subsection (e) to sound recordings, the library is encouraging the public to re

spect and observe copyright law. MLA states:

. . . people who take the time to come to a library to obtain digital sound recordings

they can't get commercially at a fair price, whether in analog or digital format, are

being responsible and following the proper procedures. It hardly needs to be said

that these are people who could have simply downloaded the materials illegally. By

bringing music into subsections (d) and (e), we may provide a mediated and legal framework that may, at least in some cases, circumvent illegal file sharing.30

The RLAA sees the situation differently. While not specifically favoring the

abolition of § 108 (i), they suggest that were a change made to the law, then an

27. U.S. Code Title 17, §108 (i). 28. Eric Harbeson (MLA), "Written Comments Responding to Section 108 Study Group: Copy

right Exceptions for Libraries and Archives," March 2007, p. 7, http://www.loc.gov/sectionl08/

docs/Harbeson-MusicLibraryAssn.pdf; and Brandon Burke (ARSC), "Written Testimony Con

cerning Proposed Revisions to 17 USC 108: Submitted to the Section 108 Study Group," 9 March

2007, p. 4, http://www.loc.gov/sectionl08/docs/BurkeMcBrideForstot-AssocAudioArch.pdf. 29. Tim Brooks, Survey of Reissues of U.S. Recordings, CLIR Publication Series, no. 13

(Washington, D.C.: Council on Libraries and Information Resources and Library of Congress,

2005), p. 13, http://www.loc.gov/rr/record/nrpb/publ33.pdf. 30. Harbeson, March 2007, p. 7-8.




exclusion should be made for "commercially-released entertainment prod ucts." They also believe that libraries should be required to investigate the

commercial availability of a copy of a sound recording at a fair price including the consideration of used CDs so as to promote the increasing market for used

recordings.31 SESAC believes that subsections (d) and (e) were intended specifically to

address textual works and that subsection (i) should be retained, especially in

light of the ease with which digital copies of sound recordings can be made and

because of the "predominant use of music as entertainment." They are not con

vinced that "even a small fraction of patrons will actually use the copies of

musical works embodied in sound recordings ... for 'private study, scholar

ship, or research.' " The new opportunities of the online market that are just

now emerging could allow for the development of specialty niche markets for

the sale and distribution of low-demand sound recordings, and library repro duction of copyrighted sound recordings could potentially undermine these

new markets. They suggest that libraries could be allowed to maintain up to

three copies of musical works that are unavailable. However, they do not favor

the copying and distribution of a single work or track from a sound recording, especially if it is delivered digitally, as this could adversely affect the rights holder's market.32

The Study Group wondered if copyright holders' interests could be pro tected if libraries were only allowed to make available reproductions at a lower

image or sound quality than the original, or if only streaming audio were em

ployed for sound recordings. MLA favors streaming for limited periods of time for most requests and reliance on § 107 governing fair use when the user needs to have an item for extended periods for study or research. However,

compromising the quality of the copy would not be acceptable in far too many cases to make this suggestion acceptable or practical.

The Study Group was unable to obtain a consensus opinion about whether or not to eliminate subsection (i), even though "most group members agreed that subsection 108 (i) should be eliminated in whole or in part only if subsec tions 108 (d) and (e) are amended to include appropriate additional conditions to prevent a material impact on the commercial exploitation of the affected works."33 The main objection to the elimination of subsection (i) is the poten tial harm to commercial markets particularly for works of possible entertain ment value. Even in the case of works that are not currently available, markets are now being developed for streaming and down-loading of music digital files

on-demand, services that did not exist a few years ago. Also, subsection (d) al lows library copying for "an article or other contribution to a copyrighted col lection or periodical issue" or a "small part of any other copyrighted work." Unlike textual materials, it proved difficult to extrapolate this to music where a

31. RIAA, p. 2.

32. Keenan Popwell (Society of European Stage Authors and Composers, Associate Director

for Business Affairs), e-mail message to Mary Rasenberger, 16 March 2007, p. 2, http://www.loc

.gov/sectionl08/docs/Popwell-SESAC.pdf. 33. Section 108 Study Group, p. 107.




single song that is part of a larger work may prove to be the most commercially valuable portion of the whole work. Allowing copying of this part could nega tively impact the market value for both the song and the larger work. The

Study Group feels that "more factual investigation" is needed to determine if

expanding the library exemption to music would truly affect these markets

adversely. They also argued that if § 108 (i) were retained, its scope should be limited

to only those works where § 108 (d) and (e) "might put the work at particular risk of market harm," and additional safeguards should be added to (d) and (e) to mitigate against potential risks to the market that library copying would entail.34

In cases where music is used to illustrate a text, subsection (i) prohibits the

reproduction of that music, even when making copies of that text for the pur pose of scholarship and research under subsections (d) and (e). MLA finds this prohibition unacceptable. In fact, it could possibly create other problems in scholarly publishing such as requiring permissions to publish and retain dis sertations only in electronic form where music notation is illustrative or in cluded as part of the textual argument.35 The Study Group also finds this clause of subsection (i), that allows the copying of "pictorial or graphic works pub lished as illustrations, diagrams, or similar adjuncts," to be too limited. In fact

they conclude that "the clause should also apply to other types of adjunct or embedded works, including musical and audiovisual works that are distributed as part of a text-based work."36 However, because of the lack of unanimity of the

Study Group, the recommendations stop short of any changes that would elim

inate or significantly change § 108 (i).

V. Fair Use (§107)

Under the current law, libraries are not allowed to reproduce musical works for library patrons due to subsection (i) except for the purpose of preservation or to replace lost and damaged materials. Any copy of music made by a U.S. li

brary can only be provided to a researcher through the fair use provision, which is covered under § 107. A full discussion of fair use and § 107 is outside the scope of this paper. However, many libraries will make reproductions of music for research use if the individual signs a form stating that they are claim

ing fair use, understand the basic principles of fair use, and assume full re

sponsibility for any possible infringement of copyright. The conditions under which fair use can be claimed are not that generous.

For example, following the adoption of the 1976 Copyright Act, guidelines for

copying music for educational purposes under fair use were approved by a

group of associations of educators and publishers, to clarify how the new law

might be applied for teaching and learning. If educators and librarians act

within these guidelines it is unlikely that they would be infringing copyright law. Some of the language adopted for claiming fair use when using music for

34. Ubid., p. 106.

35. MLA, March 2007, p. 10.

36. Section 108 Study Group, p. 111.




teaching purposes illustrates how restrictive the guidelines are. Here is an

example:

For academic purposes other than performance, single or multiple copies of ex

cerpts of works may be made, provided that the excerpts do not comprise a part of

the whole which would constitute a performable unit such as a section, movement

or aria, but in no case more than 10 percent of the whole work.37

Since § 108 (i) excludes music, many libraries have used these educational

guidelines as the basis for policies to provide copies to researchers legitimately claiming fair use of music materials only available through libraries. Conse

quently, even in the application of fair use there can be serious limitations.

VI. Effect of § 301 (c) on sound recordings

The copyright situation for sound recordings is considerably different from almost all other materials because, while published music was covered by copyright, sound recordings were only mentioned in copyright laws beginning with the 1976 Copyright Act. In § 301 (c), all sound recordings made from the 1880s-1972 are covered not by federal copyright law, but by the laws of each of the fifty states or by common law, until 2067 when they will be considered to be in the public domain. The surprising effect of this law means that even if

§ 108 (i) were removed, libraries would still not be able to apply any of the § 108 exemptions to musical sound recordings made from the very first sound

recordings up to 1972, because they are not covered by the federal copyright law. In fact, it is technically not legal for libraries to even make preservation copies or copies to replace lost and damaged recordings published before 1972 without the permission of the copyright holder.

Recently, Naxos of America, Inc., issued recordings originally published in the United Kingdom by the Gramophone Co. in the 1930s without securing permission from EMI, the current copyright holder. The British copyrights ex

pired in 1990 and the works did not receive protection under United States

copyright law. In the United Kingdom, the works are now in the public domain. In 2002, Capitol Records, the U.S. division of EMI, brought suit against Naxos of America, Inc., for copyright infringement in New York State. The District Court of New York decided in favor of Naxos, but it was appealed by Capitol. In a surprising reversal, the Appellate Court decided in favor of Capitol in April 2005.38 The effect of the court's decision is that all recordings made before 1972 are covered under common law copyright in New York until superseded by federal law in 2067, even though foreign copyrights on the works have ex

pired. Because sound recordings move freely between state boundaries in the United States, the New York decision in effect covers all fifty states. It should

37. U.S. Copyright Office, "Circular 21: Reproduction of Copyrighted Works by Educators and Librarians" (Washington, D.C.: Copyright Office, Library of Congress, 1995; rev. 1998), p. 9.

38. Capitol Records, Inc., Appellant, v Naxos of America, Inc., Respondent, 5 April 2005,

http://www.courts.state.ny.us/reporter/3dseries/2005/2005_02570.htm.




be noted that the Naxos recordings are for sale in the rest of the world, except where local copyrights prohibit this.39

The Study Group believes that it should be possible to preserve pre-1972 recordings under the same terms granted to other materials in § 108 (b) and

(c) but that to do so would require reviewing § 301, which is outside the scope of their charge. Furthermore, the Group did not address the application of

§ 108 (d) and (e) to provide access to these recordings at all. The report states:

"Attempts to amend section 301 (c) could have unintended consequences and result in the erosion of state copyright laws that continue to provide the basis for business decisions and commercial investments with respect to pre-1972 recordings."40 Perhaps the Study Group could come to no other conclusion since § 301 was outside the scope of their charge. However, it is difficult to

imagine that library preservation programs would adversely affect the market for pre-1972 sound recordings. Sound recordings are almost always on fragile media and many need to be preserved now or risk being lost entirely. This sec tion of the law needs to be addressed soon as it is likely that it will be in the business interests of the recording companies to preserve only a tiny fraction of these early recordings themselves.

VII. Conclusion

libraries are dependent upon a successful publishing industry and support the principles of copyright protection. They also are guardians of the rights and needs of library users to unencumbered access to out-of-print or difficult

to-acquire publications for the advancement and appreciation of knowledge, culture, and the arts. Photocopy machines made the research process easier, faster, more convenient, and without serious negative consequences to

publishers. Digital technologies' ability to reproduce and disseminate materials quickly,

easily, and accurately pose significant issues for copyright owners. There is no

question that illegal downloading, especially of sound and video recordings, has negatively impacted recording and motion picture companies, but not be cause of the actions of libraries.

Libraries want to be able to act within the law and to provide reasonable ser vice to library users. The restrictions for library copying resulting from § 108

(i) and § 301 (c) for music create a situation where users either must do with out certain music materials or break the law. Music libraries also need to be able to use new digital technologies with adequate backup capabilities to pre serve text and sound materials for all future generations while the items are

still whole and without blemish. New legislation is needed to remove these im

pediments to the use of music library collections and materials. The recom

mendations of the Section 108 Study Group if adopted will clarify and improve

39. If the original recording was issued after 1 January 1955, the Naxos issue is not for sale in

Australia or Singapore. 40. Section 108 Study Group, p. 129-130.




on some of the provisions of the current law, but more work needs to be done,

particularly to remedy the situation for music. A coalition of library organiza tions needs to work with publishers and the recording industry to address

particularly the issues posed by § 108 (i) and § 301 (c) so that libraries may responsibly provide reasonable services to their patrons without adversely af

fecting legitimate business interests.



Documents

COPYING BY LIBRARIES IN THE UNITED STATES: REVIEWING SECTION 108 OF THE US COPYRIGHT LAWS