Laura N. Gasaway * © 2003
The preservation of cultural, political and literary works and artifacts should be of considerable concern to the American public. A number of forces have combined to create a threat to the continued preservation of this record of our society. (1) Research libraries across the country are filled with so called brittle books which are deteriorating at an alarming rate. (2) Funding to institutions that preserve these works has been seriously reduced. (3) The federal government has ordered the removal from government websites of many previously maintained records, and the current administration has curtailed the declassification program for many others, making these works unavailable to the public. (4) The longer term of copyright means that no published works will enter the public domain before the end of 2018. (5) Modern digital technology makes it much easier to digitize the information contained in these works as a method of preservation rather than conserving the artifact in which the information appears. (6) Digital preservation of analog works is both more efficient and cheaper than conservation, and it provides increased search capabilities. (7) Many copyright owners have been hostile to the idea of library preservation of their works even in microform. (8) Programs aimed at preservation are viewed with suspicion by the copyright holder community because of the systematic nature and scope of such programs. (9) Copyright owners are even more concerned about digital preservation because it has the potential to provide greater access to the work than conservation of the analog artifact and could result in total loss of control. (10) Increasingly, the works acquired by libraries are in digital format, and publishers and producers are attaching access controls to these works that impair a library’s ability to preserve these works. (11) Restrictive license agreements for digital works may prevent retention of the work after the expiration of the license and preclude the ability to preserve the work even though the library has paid for it. (12) Concentration of publishing activities into a small number of conglomerates and the elimination of so many publishing houses gives the larger entities increased market power and the ability to influence legislation. (13) Fewer and fewer authors and creators own their own copyrights today, so it is the interests of publishers and media companies that benefit from changes in the law. (14) There is little guidance in the law for preservation of works that are originally digital works. While many of these forces are outside the copyright arena, others squarely conflict with copyright holders and their rights and interests.
This article’s focus on preservation of this record considers whether the commercial interests of copyright proprietors should prevail over the long-term preservation of the nation’s scholarly, cultural and political history. The public’s interest has not been well presented or represented, although library, archives and museum associations have tried to make the case for preservation because of its very importance to society. Copyright law plays an important role in this debate, sometimes furthering the ability of a library to preserve a work and sometime hindering it. In discussing the problems with archiving the web, Berkeley Professor of Information Management and Systems Peter Lyman said:
In the past, important parts of our cultural heritage have been lost because they were not archived—in part because past generations did not, or could not, recognize their historic value. This is a cultural problem. In addition, past generations did not address the technical problem of preserving storage media—nitrate film, videotape, vinyl recordings—or the equipment to play them. They did not solve the economic problem of finding a business model to support new media archives, for in times of innovation the focus is on building new markets and better technologies. Finally, they did not solve the legal problem of creating laws and agreements to protect copyrighted material yet at the same time allow for its archival preservation.
Libraries have long been involved in preserving the world’s scholarly record. There are two types of preservation in which libraries are engaged, “preservation” is the general term used to denote both of these. The first type of activity under the rubric of preservation more accurately is referred to as conservation which is the restoration and preservation of the physical object. The second type of preservation aims only to ensure that the information the work contains is preserved as opposed to the artifact. Conservation of the physical artifact presents no copyright issues in the analog world since the activities involved includes restoring, stabilizing and maintaining the integrity of the original binding, stabilization of the acid content of the paper, and the like. But some works are not sufficiently valuable to qualify for expensive restoration work to the artifact itself, while the information that the work contains is worthy of preservation. This latter type of preservation conflicts with copyright law even for analog materials, since preservation of the information requires reproducing it, almost always into another format. For digital works, both conservation and preservation may engender copyright concerns. For example, conserving a digital work could require circumvention of technological access controls or restoring date-expiring content in order to preserve the artifact. Preservation of digital information requires reproduction of the work and raises a number of copyright concerns.
COPYRIGHT ISSUES FOR CONSERVATION & PRESERVATION
TYPE OF WORK
No copyright issue
Yes, reproduction & multiple copying
Yes, reproduction, multiple copying & distribution
Yes, license agreement provisions & circumvention of technological protections
Yes, reproduction, multiple copying, distribution & license agreements
A. Libraries as Preservers of Copyrighted Works
As repositories of the world’s knowledge stored in books, images, motion media and sound recordings, libraries have been in the business of preserving these works from the earliest times. Early scrolls were often stored in linen or leather cases to preserve the integrity of the physical item. Early monastic libraries chained incunabula to library shelving as a way to protect the work although such action did little to preserve the binding. Many of those early works still contain the iron rings that were affixed to the covers of the work to ensure that it was not removed from the library. Early printed books endured similar fates, but the ability to mass produce works which the printing press made possible often meant that a damaged volume could be more easily replaced than conserved, albeit only by incurring another charge for the work.
With the advent of lending libraries, however, library preservation took on a different complexion. The concern was not that the book would be removed from the collection but that the physical condition of the work remain sufficiently stable so that readers could enjoy the work without undue deterioration of that particular copy. Additionally, many manuscripts, incunabula and works published before the 19th century required conservation to ensure that they remained viable as objects or artifacts. Many of these works were printed on unusual media or had bindings that were rare and beautiful. Techniques for preservation varied through the years, but the library’s intent always was to ensure that the work remained available for later readers and scholars. Libraries have played a critical role in the preservation of the world’s knowledge and in making it accessible.
works that qualified for preservation were rare, or, at a minimum
scarce. One method of preservation that
used in from the 1920s to 1970s was microfilming, usually on
film, and then it was discovered that such microfilm developed what is
to as “the vinegar syndrome” or the “measles.”
Spots obscure much of the text and images preserved on that
microfilm. So, many early microfilm
projects had to be repeated and the film reproduced in a more durable
In the 1970s librarians realized that many of the works printed
19th and early 20th centuries were printed on
paper that was deteriorating at an alarming rate. It
was clear that only wide scale
preservation could ensure that these “brittle books” would last into
century. A 1987 study concluded that
there were approximately 305 million volumes in
Microfilming is one of the oldest established methods of preservation; it may be defined as: “the process of reproducing, in reduced size, the intellectual content of library and archival materials on film. . . .Through the process, a master negative (or camera negative) is produced; from this negative, a printing negative is generated from which service (or use) copies are created.” Libraries tend to use microfilm preservation when the anticipated use is low and when the need is for durable, readable content. Microfiche has typically been used for materials such as telephone books, government reports, company reports, and the like. But it is being replaced by CD-ROMs and digital preservation. As with other types of preservation, reproduction is required to create the film or fiche and results in making one to three copies, but it also offers many advantages ranging from cost effectiveness to resource sharing. Moreover, it has stood the test of time as a preservation method. The biggest disadvantage is that few users really like using either microfilm or fiche, and almost all prefer hard copy to microformat.
By the late 20th century, preservation techniques had improved and many academic libraries hired professional preservationists and installed preservation laboratories. The advent of digital technology offered improved methods, but not conservation. A digitized work could be stored on a computer and could actually be used to replace the original deteriorating work. Not only that, but digital versions offered increased searching capability, the potential for multiple simultaneous users and the ability to print or download “perfect copies.”
Although microfilming of copyrighted works also presented copyright issues, the shorter term of copyright that existed prior to the 1976 Copyright Act meant that the huge majority of the works preserved in this format had already entered the public domain. Thus, there were few copyright issues associated with such preservation programs. Sometimes a publisher would reissue a work in microformat and would claim copyright in that work although, in reality, only the new material added was even eligible for copyright protection. In other instances, copyright was claimed in the microform set as a collected work or compilation.
B. Importance of Preservation to the Scholarly Community
Virtually every medium of expression is threatened today by the natural forces of deterioration. The destruction of works recorded on paper, film, photographic prints, paint on canvas, phonorecords, video and audio tapes, and even optical and digital disks is proceeding at a pace that threatens to destroy most of the artistic and intellectual works of the past century and a half.
The scholarly record of what has gone before is critical to the academy and should be critical to society in general. However, those of us who make up the academic, research and scholarly community are frequently enticed by the new, the forward looking and ignore the past. “In the academic community, it is far easier to create than to transform; easier to introduce new networking capabilities, electronic mail, and sophisticated retrieval mechanisms than to link those capacities in a meaningful manner to the information habits of working scholars, whose inquiries span decades, disciplines, and formats.”
Copyright issues involved in library preservation are significant. The longer term of copyright, life of the author plus 70 years, means that only works published in the United States prior to 1923 are clearly in the public domain, but many of the works from 1923-1964 are still under copyright and will continue to be protected until the end of 2018 for the earliest published of these works. Many of these materials are in desperate need of preservation if they are to continue to be viable for use by library patrons after the next few decades. Some of them will be preserved using traditional techniques that conserve the physical object, i.e., the copy of the work that the library owns. This could range from a simple laminating of the paper covers of a book all the way to full-blown restoration of the binding and each page of the work. Increasingly, however, libraries seek to use digital means to preserve these works and make them available to their users.
Because digital preservation collides with the rights of the copyright owner, libraries have been forced to reevaluate their preservations programs. Two recent amendments to the Copyright Act of 1976 made it clear that, under certain circumstances, libraries may use digital means to preserve an analog work. Use of the digital copy may be fairly restricted, however. Those amendments did not deal with the preservation of works in a library collection originally acquired in digital format, however, and librarians are just beginning to address the preservation of this new elusive and alterable digital knowledge.
The experience of libraries which sought permission to preserve copyrighted works through various reproduction technologies has not been good. Publishers, especially journal publishers, are especially difficult to locate. One of the most difficult problems encountered by the Library of Congress in its American Memory Project (AMP) has been copyright permission. In fact, AMP has digitized only public domain works or those for which it can obtain permission. Even earlier, libraries encountered difficulties with permissions for microfilm preservation projects which is why so many of these projects involve only public domain works.
This article discusses portions of the Digital Millennium Copyright Act and the Copyright Term Extension Act as they amend section 108 and their impact on preservation of analog works. It next addresses preservation of digital works and concludes with an examination of the use of open archives and institutional repositories as a method to preserve and make accessible works produced within an academic institution.
II. THE LIBRARY EXEMPTION
Section 108 of the Copyright Act of 1976 permits reproduction and distribution by libraries and archives that meet certain criteria and under particular conditions. Section 108(a) establishes the criteria that a library or archives must meet in order to qualify for the entire library exemption and details one limitation. The limitation is that a library may make only single copies of works except for preservation purposes, for which, under certain conditions, the library may make up to three copies.
The first of the three criteria a library must meet in order to qualify for the library exemption is that the reproduction and distribution of the copyrighted work performed by the library must be made without direct or indirect commercial advantage. The precise meaning of the phrase “without direct or indirect commercial advantage” is not clear. The matter has never been litigated, and the legislative history sheds little light. Publishers and other copyright holders appear to maintain that if the library is in a profit-seeking entity, it cannot meet this requirement. The language of the statute makes it clear that it is the reproduction itself that may not be for direct or indirect commercial advantage, i.e., sold for a profit. There is additional support for this position in the legislative history of section 108(g)(1); the House Report that accompanied the Act states that even a library in a for-profit entity may reproduce an article for a user to use in her work as long as the request is an isolated and spontaneous one. Later amendments to other sections of the Copyright Act, however, all seem to insert the words "nonprofit" before library rather than relying on the section 108(a) definition of libraries that qualify for the exemption. This may be evidence that legislators, at least after the passage of the 1976 Act, now believe that exemptions for libraries outside of section 108 must apply only to the nonprofit sector.
The second requirement a library must meet to qualify for the exemption is that its collection must be open to the public or to non-affiliated researchers doing research in a specialized field. This criteria may be more easily met by libraries in nonprofit educational institutions, research organizations and public libraries as opposed to profit-seeking entities. Others not open to the public may meet this criteria if the library collection is open to the public even by appointment for qualified users, such as researchers. Libraries that are not open to any outside or unaffiliated users are unable to qualify under this criteria.
The final criteria a library must satisfy in order to take advantage of the exemption is that it must place a notice of copyright on the reproductions made under section 108. The reason for this requirement is so that the recipient of the copy will be alerted to the fact that the work is copyrighted. The DMCA amended section 108(a)(3) which now reads: “The reproduction and distribution of the work contains a notice of copyright that appears on the copy that is reproduced, or includes a legend stating that the work may be protected by copyright if no such notice appears on the work.” For years, many libraries had simply stamped copies made with “Notice, this work may be protected by copyright” and is no longer an option. It is now clear that the library must include the actual notice that appears on the work. The legislative history states that the goal of this particular amendment was not to increase the burden on libraries, but that has not been the end result. What librarians had actually sought was an amendment that would alleviate the burden of including a notice of copyright when the copyright holder failed to do so.
III. PRESERVATION UNDER SECTION 108 GENERALLY
The original section 108 contained two sections that relate to preservation, section 108(b), which is a true preservation section, and 108(c), which is a replacement section for lost, damaged, deteriorating or stolen materials. Under these provisions, libraries were permitted to reproduce a work “in facsimile form” for preservation or replacement purposes if certain conditions were met. Whether a digital facsimile qualified as a facsimile under the statute was debated by both librarians and copyright owners, but there has been no litigation dealing with the preservation sections. One could argue that a scanned image of a page, in which the image is an exact reproduction of a page, is a facsimile since it looks exactly like the original page. On the other hand, digital copies that are not a reproduction of the page clearly would not be facsimile copies.
The DMCA settles the disagreement and expands the preservation and replacement exemptions in several ways. First, no longer is the library limited to making only one preservation copy of a work. Now it may make three copies which complies with national microform standards, further evidence that the DMCA applies to more than digital works. “For some materials and preservation methods, state-of-the-art technique requires an "iron mountain" copy, a master copy, and a use copy, with only the use copy accessible at any one time.” Second, the word “facsimile” was omitted, and third, the statute specifically permits the copy to be in digital format. While these three changes broaden the preservation exemptions for libraries, there are also new limitations. One problem any library preservation program encounters is the section 108(g)(1) prohibition against systematic copying. A strong fair use argument could be made when the purpose is preservation and the requirements of 108(b) or (c) have been met, even if the reproduction is systematic, but the matter is far from clear.
The CTEA added a new section 108(h) dealing with preservation, but it is not completely limited to preservation. These three additions to the library exemption are extremely important to libraries and to the preservation of the cultural and historical record of this country.
A. Section 108(b): Preservation of Unpublished Works
Under the original statute, section 108(b) permitted a library to reproduce one copy of an unpublished work in its collection for preservation, security or deposit for research in another library. Now the DMCA changes allow the library or archives may make up to three copies. If the copy that is reproduced is in digital format, however, that copy may not be “made available to the public in that format outside the premises of the library ...” This may actually narrow the exemption granted prior to 1998 even though a library now may make a digital copy for on-premises use. The amendment assumes that the library places the copy on an intranet or records the work on a CD or other digital medium, the use of which will be restricted to the premises of the library. But since the library may also make two analog copies, it could also make those copies and then lend them.
Prior to the 1998 amendment, a library that reproduced an unpublished work under section 108(b) could treat the reproduction just as it did the original work. It could lend the reproduction to users, provide it through interlibrary loan, and the like. Since the new language means that if the work is preserved in digital format, the digital copy may not be used outside the library buildings, it is much more restrictive. Library associations posited that although the amendment limits the use of digital preservation copies to the physical premises of the library, it is consistent with the section 108(g) prohibition against systematic reproduction and distribution except for interlibrary loan. Moreover, although the legislative history is silent as to the right of first publication, the restrictions under 108(b) are also consistent with the right that ensures the author or other copyright owner retains the right of first publication for life of the author plus 70 years.
Digital versions of analog works may be defined as “electronic photographs scanned from original documents. A digital image can accurately render the information, layout, and presentation of the original, including typefaces, annotations, and illustrations.” Some text files lack search and manipulation capability (ASCII) while others that use optical character recognition (OCR) programs permit digitally imaged text to be searched and manipulated. Libraries and archives are beginning to use and urge utilization of digital imaging for preservation in part because of this feature but also because users find it far superior to microforms because of ease of use.
B. Section 108(c): Replacement of Published Works
Under the original version of section 108(c) of the 1976 Act, a library could reproduce a published lost, damaged, stolen or deteriorating work after the library made a reasonable effort to obtain an unused copy at a fair price. Because 108(c) is technically a replacement section, obviously the work must have been in the library’s collection before the library can rely on the exemption to reproduce the work.
The ability to reproduce a work, even one that has become lost, damaged, stolen, deteriorating or obsolete, is permitted only after the library determines by reasonable investigation that an unused copy may not be obtained at a fair price. This applies to all types of works including audiovisual works. A library is not required to search the used book or videotape market in order to locate a replacement volume or item. The statute does not define key concepts such as “reasonable investigation” or “fair price,” but the legislative history does provide some guidance on what constitutes a reasonable effort to locate an unused replacement. According to the House Report, “The scope and nature of a reasonable investigation to determine that an unused replacement cannot be found will vary according to the circumstances of a particular situation.” It goes on to state that in the ordinary course of events, a library that seeks to replace a damaged, deteriorating, lost or stolen work would first consult U.S. trade sources such as retail bookstores, wholesalers or jobbers. It that proves unsuccessful, then the library should contact the publisher or author, if known. Lastly, it should contact an authorized reproduction service such as University Microfilms, known as UMI (now ProQuest).
legislative definition of “fair price,” but there are two published
of fair price, one from a publication of the Association of American
(AAP) and another from the American Library Association (ALA). In 1978, the AAP appeared to posit that
fair price was basically whatever anyone charges the library. It defines as fair price the latest suggested
retail price if the work is still available from the publisher. If the work is not so available, the
prevailing retail price is the fair price, or, if the library uses an
authorized reproducing service, it is the price that service charges. The
The legislative history offers no suggestion to cover situations when the stolen or damaged material does not comprise an entire volume but instead is only an article or two missing from a bound periodical volume. Surely, in this situation the librarian should be able to make a reasoned judgment about how much investigation to do and could determine that there is no fair price to replace the article missing from a bound volume. Most librarians would then simply reproduce the article and insert the photocopy into the bound volume.
There are two important additions to subsection (c) made by the DMCA. The first mirrors that found in 108(b) and permits the library to make up to three copies of the work after a reasonable effort to purchase an unused copy at a fair price. If a digital copy is made, that copy may not be made available to the public in that format outside the premises of the library. Under this subsection, it is not the right of first publication that is at issue, since these are published works. The problem may be that making a digital copy available outside the library would not comply with the section 108(g)(1) prohibition on systematic copying. An additional concern may also have been that a library which places a digital version of a work on the web is actually republishing the copyrighted work without consent of the owner of the copyright. The requirement is logical when the original work is in analog format, but the statute appears to ignore the possibility that the original work that is now damaged or lost may have been acquired in digital format originally. Surely what Congress actually meant was that if a digital reproduction of an analog work was made available, then it could be used only within the library premises and not on a campus network or the World Wide Web. But what if the original work was a CD-ROM (a digital work), which now is lost and is not available at a fair price? A library may create another CD which also happens to be a digital copy. The original digital work could be used outside the premises of the library and the new one is a facsimile copy, so it is logical that it also should be able to be used in the same way, despite the language of the statute.
The second DMCA amendment to section 108(c) is also important. In addition to applying to lost, damaged, stolen or deteriorating works, the amendment added “or if the format in which the work is stored has become obsolete.” The amendment then explains when a format may be considered obsolete, “¼if 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.” This is a great help for libraries that currently are dealing with deteriorating recordings on wax cylinders, 8-track audiotapes, Beta format videotapes, and the like. The legislative history indicates that when the only equipment that is available is from a second-hand store, it is not “reasonably available.” If the equipment is still produced but is extremely expensive, might a library argue that such equipment is no longer reasonably available in the commercial marketplace and thus reproduce the work under this amendment? Perhaps so.
C. Section 108(h): Reproduction During Last 20 Years of the Term
Section 108(h) was added to the Act by the CTEA. This section permits a library, archives or a nonprofit educational institution, during the final 20 years of a published work’s term, to reproduce, distribute, display or perform in either facsimile or digital form, a copy of a work for purposes of preservation, scholarship or research. In order to do this, however, the library must by reasonable investigation determine that none of the following factors exist. (1) The work is subject to normal commercial exploitation. (2) A copy can be obtained at a reasonable price. (3) The copyright owner provides notice that neither of the above conditions apply according to regulations promulgated by the Register of Copyrights. Further, the exemption provided by this subsection does not apply to any subsequent uses by users other than that library. The Copyright Office then developed rules by which owners or their agents could file notice that the published work was subject to normal commercial exploitation or could be obtained at a reasonable price. The published rules are accompanied by a form by which publishers and other copyright owners can file such notice
There is little legislative history for this portion of the CTEA; the Senate Report refers to competing concerns of institutions that depend on legal but noncommercial use of a copyrighted works, especially preservation activities of libraries and archives as contrasted with the concerns of copyright owners. The balance struck permits preservation, even by digital means, but only under certain conditions and if the requirements are met. There is no definition of important terms such as “reasonable investigation” or “normal commercial exploitation.” Perhaps the definition of reasonable investigation for section 108(c) from the House Report that accompanied the Act should be used. For this subsection, however, a reasonable investigation would likely also require checking with the Copyright Office to determine whether a publisher or other copyright holder had completed the forms available on the Copyright Office website and filed notice. The following information is required on the notice: (1) title of the work, or if there is no title, a brief description of the work; (2) name of the author or authors; (3) type of work, i.e., the category such as literary work, etc.; (4) edition; (5) year of first publication; (6) year the work first secured federal copyright through publication with notice or registration as an unpublished work; (7) copyright registration and renewal numbers; (8) name of the copyright owner; (9) contact or entity that the Copyright Office should contact concerning the notice; and (10) the person or entity that libraries and archives may contact concerning the work's normal commercial exploitation or availability at a reasonable price.
There is little help even in the rules for determining the reasonable price of a work to be reproduced under this section. According to the Copyright Office, documentation of reasonable price may include both the original copyright registration number of the work and any additional information concerning the work's normal commercial exploitation or availability at a reasonable price. Despite the rule-making activity of the Copyright Office and the posting of the forms on its website, not one single notice had been filed by a publisher of other copyright owner as of April 20, 2003. The necessity for a library to satisfy the 108(h) requirements and the failure of copyright owners to provide notice to simplify the process may mean that few libraries actually avail themselves of the exemption.
During the rule-making period, library associations testified that the Copyright Office would serve as the single most important resource for libraries in conducting their reasonable investigations to determine if the conditions specified in section 108(h) exist. Further, they urged the Office to make notices available on its website so that the information would be retrievable by libraries conducting such investigations. The associations expressed concern about whether the owner of the copyright in a collective work is in a position to respond to some of the necessary information required for the notice. For example, how will such owner know whether an individual contribution to the collective work is subject to normal commercial exploitation or whether copies may be purchased at a reasonable price? “Libraries and archives should not be required to purchase a copy of a collective work to enjoy the privileges of using an individual contribution.” Library associations testified that if a copyright owner cannot make a copy of a work available either directly or through an agent, then the presumption should be that libraries can take advantage of the exemption. “For example, it would be a perversion of the exemption if a copy of a work exists only in a library, but the owner, who does not have physical copy, nevertheless declares it is subject to normal commercial exploitation or can be obtained at a reasonable price.” Since the Copyright Office does not necessarily retain deposit copies, it is likely that only an academic or research library will have the only or one of a very few remaining copies of many of these works.
Under section 108(c) the library’s reasonable investigation to determine whether a copy is available at a fair price applies only to unused copies. Section 108(h) is silent as to whether a library or archives must seek even a used copy prior to taking advantage of the exemption. Since the copyright owner receives royalties only on the first sale of a work, the second-hand or resale market provides no way to calculate a “reasonable price.” Library associations stated that, “Only if the owner is actually marketing a work it physically possesses, or recently placed sufficient numbers of copies into commerce, could the owner accurately declare that the statutory test has been met.”
Even outdated formats of a work may have an impact on what constitutes a reasonable price. Library associations argued that the section 108(c) definition of obsolete work should be imported into the notice provisions under section 108(h). “It stands to reason that if the only accessible copies of a work are in outmoded formats, then the work cannot be considered subject to normal commercial exploitation and unless equipment is being manufactured and sold at fair price, the library or archive will be unable to use the work on a reasonably priced basis.”
Section 108(h) supposedly applies to “orphaned” works where the publisher has disappeared and no one has an interest in further commercial exploitation. In 1987, a study conducted at the American Bookseller’s convention indicated that most books published in this country go out of print in approximately three years. Publishers report that slightly more than 91% of all book sales occur within the first year after publication. On the other hand, with the production of books on demand, even out-of-print works can be produced quickly. Is this normal commercial exploitation? It likely means that the only works a copyright owner will not exploit for the entire copyright term will be those unprofitable works which are also likely unpopular – the very works that are of no interest to anyone for preservation, scholarship or research.
This subsection is broader than 108(c) because it is not solely a replacement section. There is apparently no requirement that the work reproduced currently be in the collection of the library, nonprofit educational institution or archives. Normally section 108 reproduction is limited to works currently in the collection except for providing copies to users through interlibrary loan. Is this what Congress intended? Since preservation is not the only recognized purpose for such reproduction under 108(h) but also scholarship or research, presumably this subsection can serve as a collection building section, at least for those works that meet the requirements of (h). To preserve the work, however, it must have existed in the collection, but for scholarship and research, prior ownership of the work may not be required. Perhaps this is because the only works for which this exemption applies are those for which the author died in 1952 or earlier and their very age gives libraries an exemption for reproduction for purposes other than preservation.
The work may be reproduced in either digital or analog format, but here the library is not permitted to make up to three copies, but instead “a copy.” In all likelihood, a library is much more likely to produce a digital copy of such a work rather than an analog copy after it has satisfied the requirements of the section since the work obviously would be sufficiently important to that library or it would not have engaged in the time-consuming reasonable investigation, process. If the library makes a digital copy, there is no restriction that it be used only within the premises of the library. Thus, the library may put the work on the web and apparently share it with the world.
What about works that have technological access controls? Suppose that a work was published in a format that is now obsolete, or for which the equipment needed to access it is no longer manufactured but the author has not been dead for 50 years? When Congress adopted amendments to the library exemption in the DMCA, it recognized that obsolete formats should permit library copying, just as readily as lost and stolen works. Library associations argued that with regard to the exception during the extended term, libraries or archives should be allowed to use works whose format is passé and for which equipment is not being made. The rule did not so recognize, however.
The addition of section 108(h) also raises a technical question about the operation of the entire library exemption. Section 108(i) states that the exemption does not apply to: (1) a musical work, (2) a sculptural, graphic or pictorial work, or (3) an audiovisual work other than one dealing with the news. It continues with two exceptions to this restriction on the library exemption, one of which relates to preservation. The 108(i) restriction does not apply to the preservation subsections (b) and (c). Thus, libraries may treat pictorial, musical or audiovisual works just as they treat other library materials for purposes of preservation. The statute is silent, however, as to whether 108(h) also is exempted. So, during the final two decades of a copyright term for a motion picture, photograph, etc., may a library exercise the section 108(h) exception? Would Congress not have added (h) to the limitations found in (i) if it intended to do so? Perhaps, or perhaps it was an oversight or the result of less than careful drafting.
IV. PRESERVATION OF DIGITAL WORKS
Libraries view as one of their missions the preservation of the world's knowledge and cultural artifacts. The library exemption, as amended, deals fairly well with preserving materials that were not originally in digital format. Preserving electronic information is more problematic, however, and many digital works simply are not being preserved either by the publisher or by third parties such as libraries. Even when a library executes a license agreement that gives users access to a work, the library may not have the right to preserve it in any way. There is great concern about the impact of this on the cultural record and what material will be available to researchers in the future.
What is digital preservation? It may be defined as: “… the series of managed activities necessary to ensure continued access to and preservation of digital materials."  To this end, the goal of many digital preservation projects is “to maintain the ability to display, retrieve, and use digital collections in the face of rapidly changing technological and organizational infrastructures and elements.” Three components have been identified for digital preservation projects: (1) preservation of the material or its contents in lieu of the original object, (2) preservation of the apparatus needed to locate, retrieve and represent the material and (3) a knowledgeable community of users. In the 21st century, it is not only the preservation of the storage medium, but more importantly, the assurance of access that is critical to libraries. As is the case with other modern formats, digital files require a more complex apparatus to be usable: they must be usable to machines and to people. This is the reason that digital preservation models require so much metadata: one set accommodates machines, the other is for people.
Conservation of the digital artifact will be useless unless the equipment that permits the work to be viewed or heard continues to be viable and available. The reason that libraries conduct both conservation and preservation activities is to ensure that the work is available to future generations, so unless the institution can provide access to the work, there is little reason to preserve it. Thus, libraries are less likely to conserve digital artifacts than to preserve in latter developed formats the information the works contain.
Because digital works are mostly licensed to libraries and other users, there really is no mechanism for preservation. Libraries are concerned because licensed works do not provide a permanent copy for the institution for either access or preservation. If either party terminates the license agreement, the library is left with nothing. By contrast, when purchasing a subscription to a print journal which also could cease publication, the library still possesses the volumes covered by the subscription period. This is not true for licensed digital works. Libraries are beginning to negotiate to retain of the electronic product at the end of the license period, but this too may prove difficult as technology changes over time. The library may be able to retain the work in electronic format, but it may not be able to access the work and use it if the equipment or format has become obsolete. Even if the library acquires the right to convert the work to newer platforms, it may just not be worth the effort to accomplish the conversion especially for highly technical and scholarly works with a limited audience.
Although consideration of preserving the digital record of this country is rather new, technology offers the means of not only preservation but access. Preservation of digital works requires reproduction which may conflict with the rights of the copyright holder even before access to the work is provided. Offering access to such works may impact not only the reproduction and distribution rights but also the rights of public display or performance depending on the type of work involved. There are also serious problems with archiving digital works, not the least of which is the previously mentioned technological obsolescence. Moreover, the owners of copyright in digital works are so concerned about the ease of copying digital works that they are finding more and more ways to restrict access to these works. For example, suppose that a library has acquired a work on DVD and 15 years later, it has begun to deteriorate. The library first tries to purchase an unused copy but finds that it is no longer available. Now the library is faced with a dilemma – let the DVD continue to deteriorate to the point that it becomes totally unusable or circumvent the technological control and reproduce the work. The latter clearly violates the section 1201 anti-circumvention provision. Which goal should take precedence? Preservation or the inviolability of the copyright holder’s access controls?
If preservation is to be done in a serious and organized way, an infrastructure must be developed to support such activities. Naturally, this will also require financial resources to support the infrastructure. The problems are such that there are few organized projects. There are some universities that are working by agreement with particular publishers to archive their digital works. The Online Computer Library Center (OCLC) and the Research Libraries Group (RLG) have created a Task Force on Archiving of Digital Information to address a wide range of these concerns ranging from integrity of digital information to access. The study conducted by the Task Force produced a number of interesting conclusions. (1) Those who create, provide and own digital information must provide the first line of defense against the loss of such information. (2) Digital preservation will require a large infrastructure significant enough to support a distributed digital archives system. (3) Such a system of digital archives will require a number of trusted organizations that are capable of storing, migrating and providing access to digital collections. (4) A certification process to facilitate the needed climate of trust is essential. (5) “Certified digital archives must have the right and duty to exercise an aggressive rescue function as a fail-safe mechanism for preserving valuable digital information that is in jeopardy of destruction, neglect or abandonment by its current custodian.”
The preservation of information resources is so central to libraries and librarianship that the American Library Association published a policy on preservation based on its goal of “ensuring that every person has access to information at the time needed and in a useable format.” ALA believes that the preservation of library resources protects the public's right to the free flow of information as embodied in the First Amendment to the Constitution and the Library Bill of Rights. It has encouraged publishers to provide libraries metadata that will facilitate the life cycle management of works in digital formats. More importantly, it urged publishers to deposit digital works in repositories that provide for the long-term storage, access and usability of the digital content. ALA will work with the publishers of digital works to develop guidelines on the preservation of digital information to help ensure that such information will not be lost when publishers can no longer retain and disseminate it. Thus, collaboration is an important strategy for dealing with copyright concerns. Unfortunately, it is unlikely to work for materials published by smaller and less organized publishers.
One way to ensure that important digital works are preserved is to create a national digital library to act as a clearinghouse and coordinator of projects aimed at the preservation of digital works. More importantly, it could serve as the long-term storage and access facility for these works. This would place the responsibility for this important task in a single organization and would permit specialized staff to develop true expertise in maintaining these materials and making them available to the public upon request. The national digital repository could be a federal government entity or it could be one created and maintained by a coalition of research libraries. There are many benefits a single repository would offer in addition to expert staff. For example, the single repository model could centralize the retention and maintenance of the equipment for accessing and storing various digital formats that would result in a huge cost saving to libraries across the country. Another benefit is standardization since the repository would develop all of the standards for storage and access of those works. Moreover, users of these digital works would have one central place to go on the web to access these works.
There are also some difficulties with a single repository model, however. The main benefit of the web is that distributed information can be brought together in the virtual world, and that is already happening on a monumental level. Even if the single repository model were adopted, there would need to be some system for the replication of the contents of the repository at various remote locations, much as is done with the Internet Domain Name System’s 13 root servers. Replication ensures that the data continues to be available even if the one central repository is experiencing difficulties with the Internet, etc. Because of the need for replication, a series of regional repositories to store and provide access to preserved digital content might be preferable to one national digital repository.
V. PRESERVATION OF OTHER LIBRARY ARTIFACTS
There are a variety of other preservation issues for libraries that relate to copyright. For example, many libraries make backup copies of audiovisual works because of the fragility of the medium. If the use copy becomes damaged then the library reproduces another use copy from the backup or master copy. Libraries engaged in this type of “before the loss” preservation believe that the library paid for one “use” copy of the work, and all it is doing is ensuring that it always has a use copy in circulation. The impact of this activity on copyright holders is clear, and it is widely practiced in all types of libraries.
The preservation of motion pictures is also a serious issue. It is estimated than one half of all of the feature films produced in this country before 1950 no longer exists. This is due in large part to the fact that they were stored on nitrate cellulose film which is not only very flammable but also gradually turns into dust. Other films from the 1950s have faded due to the color process used. Film preservation groups both preserve films by copying them to another medium or restore them to the original version. The cost is quite high, approximately $3.00 per foot of film preserved for nitrate preservation. For moving images, digital preservation is becoming much more common also, and this requires reproduction of the work. Should the film producer’s copyright interest be permitted to override the public’s interest in films as a historical record?
Another preservation issue affects one of a kind items held by libraries and archives in their archival collections. Librarians have often misunderstood the difference in owning the physical object and owning the copyright in these often unpublished works. Libraries have behaved as if they own the rights and thus have controlled not only access to the object but also the use one could make of the works. Section 108(b) and (c) provides the ability to preserve the work but does not answer all of the copyright questions involved.
VI. INSTITUTIONAL REPOSITORIES
An alternative to traditional library preservation of scholarly material within academia is the establishment of institutional repositories which are defined as “digital collections capturing and preserving the intellectual output of a single or multi-university community.” Individuals within the institution produce working papers, technical reports and other forms of scholarly work which may or may not be published, but in the prepublication stage, the work has considerable value to other faculty members and researchers as well as to the institution. In fact, institutional repositories can serve as a complement to traditional methods of scholarly communications. More important in certain disciplines such as science and technology, these works are sometimes referred to as “gray literature” because they are difficult to locate and hard to manage and preserve. Faculty members at academic institutions all over the world are posting their research online, most often on their own websites, but there are also departmental websites and disciplinary repositories. Researchers want to share the results of their work and many believe that making their work available online is the best way to expand exposure to their work and to stimulate conversation and discussion about their work by others in their discipline. There are also benefits to the college or university in creating such repositories. “Institutional repositories, by capturing, preserving, and disseminating a university's collective intellectual capital, serve as meaningful indicators of an institution's academic quality.” An institutional repository is primarily a digital archive of faculty works but could also include works by researchers, staff and even by students.
An institutional repository can contain several types of material: (1) teaching materials to include syllabi, examinations or other materials that the faculty or department wished to preserve; (2) student works such as papers, projects, and the like as well as electronic portfolios; (3) works about the institution such as annual reports, histories, planning documents, etc., (4) computer programs, (5) data sets, and (6) visual works such as videorecordings, photographs and art works. In other words, virtually any digital work that a university wants to preserve and make available can be placed in the institutional repository.
The library’s role in creating and maintaining such a repository certainly is more than custodial and evinces a desire to help mold the future of scholarly communications from traditionally published works to more dynamic works. This is an expansion of the traditional role of libraries but one which university and college libraries are uniquely qualified to fill. Faculty likely will dedicate themselves to the content layer of the repository but someone has to manage the technical and organization aspect, and that is likely to the be the university library. Libraries can be expected to: (1) provide document preparation expertise which will include document format control and archival standards, etc.; (2) help and encourage authors to contribute their research to the repository; and (3) provide expertise to increase access to and usability of the data such as metadata tagging, authority controls, and the other content management requirements, and (4) establish guidelines for the campus community on what works should be deposited and how to accomplish this. Certainly, the individual authors would own the copyright in their individual contributions to the repository, but the collective work or database will surely possess sufficient originality to qualify for copyright protection on its own. Thus, preservation of works in the repository could be ensured by the institution without permission from the copyright holder.
The open archives movement offers another possibility for preservation of and access to digital works. An example of this is the Budapest Open Access Initiative (BOAI) which represents statement of principle, strategy and commitment. Signatories to BOAI include hundreds of individuals and organizations worldwide who represent researchers, universities, laboratories, libraries, foundations, journals, publishers, learned societies, and kindred open-access initiatives. BOAI states that those works "scholars give to the world without expectation of payment" should be freely accessible online without cost to the user. It further posits that the only constraint on reproduction and distribution of these scholarly works should be author control over the right to be properly acknowledged and cited.
BOAI proposes that two strategies be followed. The first is called “self archiving” which acknowledges that scholars need tools and assistance to deposit refereed articles in open electronic archives. Second, alternative journals would be launched that are committed to open access. Interestingly, for self archiving, Stephen Harnad, the key founder of the BOAI, encourages scholars to make earlier versions of their works available assuming that the penultimate version and not the final copy edited version by the journal publisher may be placed in open access with impunity without permission from publishers who likely hold copyright on the article. Clearly, preservation of these works and access is assured as long as the scholar him or herself continues to make the work available. But this is not necessarily long-term storage, preservation or access. Therefore, it is difficult to think of BOAI as true preservation.
All of this points to the difficult copyright issues faced by libraries and archives that seek to preserve works both in analog and digital format. Moreover, preservation is useless without continuing access to this material. Clearly, less is known about preservation of digital works, and libraries are struggling with how to handle preservation technologically but also with the copyright issues. Perhaps this is natural, especially since preservation of digital works is such a new issue for libraries and for copyright holders, many of whom do not see the value or importance of preserving the digital works in which they hold copyright. This article likely has raised as many questions as it has answered.
The good news is that for copyright teachers with an interest in libraries, there is no dearth of topics for further exploration, research and scholarship. Among these topics are important questions concerning preservation.
1. Will copyright interests ultimately trump the societal value in preserving the scholarly, literary and cultural record?
2. As a society can we determine a point at which society’s interest takes precedence over the rights of copyright holders?
3. If so, will society’s interest take precedence for all works or only for works that no longer have any commercial value?
4. How will commercial value be determined?
5. How closely related is commercial value to potential market for the work?
6. What impact does the “books on demand” phenomenon have on a determination of commercial value?
7. Will the open archives movement make a significant difference and push copyright holders either to self archive or to work with institutions such as libraries to ensure continued availability of information?
8. Will publishers be willing to work with libraries on major preservation projects for the good of society?
9. What copyright concerns should be addressed in order to facilitate collaborative preservation projects?
10. Should a national repository or a series of regional repositories for the preservation of digital works be designed and promoted?
11. Can government intervention help to ensure that both analog and digital works are preserved, or will the government be a part of the problem by failing to preserve important government data in digital form?
The preservation of the scholarly, research and cultural record is critical to a wide range of researchers. This record provides the raw material for historians, political commentators, legal scholars, cultural studies researchers and those from many other disciplines. Its loss will impact the work of these scholars for years to come. More importantly, once the record is lost it cannot be recovered. It is time for Congress and the courts to consider the public interest in preservation of the record of our society and temper the burgeoning control afforded to copyright holders in the copyright law.
* Director of the Law Library and Professor of Law, University of North Carolina – Chapel Hill. The author thanks reference librarian Donna Nixon and interlibrary loan assistant Samantha Agbeblewu for their assistance in locating materials for this Article.
 See Thomas M. Susman, Memo on Removal or Destruction of Federal Depository Library Documents to Association of Research Libraries, available at http://www.arl.org/info/frn/gov/Susman.html.
 Ellen N. Brundige, The Library of Alexandria, at http://www.perseus.tufts.edu/GreekScience/Students/Ellen/Museum.html.
 Robert M. Hayes, The Magnitude, Costs, and Benefits of the Preservation of Brittle Books, Report #0 on the Preservation Project, November 30, 1987, at 7.
 Robert L. Oakley, Copyright and Preservation: A Serious Problem in Need of a Thoughtful Solution, Commission on Preservation and Access (1990), available at http://www.clir.org/pubs/reports/oakley/, citing Information about the Brittle Books Program, Commission on Preservation and Access, June 1988.
 Oakley, supra note 7.
 Redmond Kathleen Molz & Phyllis Dain, Civic Space/Cyberspace: The American Public Library in the Information Age 187 (1999).
 Oakley, supra note 7.
 Digital Millennium Copyright Act, Pub. L. 105-304 (1998), codified at various sections of 17 U.S.C.
 Sonny Bono Copyright Term Extension Act, Pub. L. 105-298, 17 U.S.C. §§ 302-304 (2000).
 17 U.S.C. § 108(a) (2000).
 Id. at 108(a)(1).
 As a shorthand, these are usually referred to as for-profit libraries even though the libraries themselves are not profit centers.
 H.R. Rep. No. 94-1476, 94th Cong. (1975) reprinted in 17 Omnibus Revision Legislative History 75 (1977) [hereinafter House Report].
 17 U.S.C. § 108(a)(2).
 One could argue, however, that a library not open to outside users but which would lend any of its published materials through interlibrary loan meets this criteria, but the matter has not been litigated, nor is there any legislative history to support such an argument. The net effect is the same, however, the materials that comprise the library’s collection of published works is available to users albeit outside the facilities of that library.
 17 U.S.C. § 108(a)(3).
 S. Rep. No. 105-190, 105th Cong., at 35-36 (1998) [hereinafter Senate Report].
 American Library Association, Washington Office, Library Preservation: Changes Incorporated in H.R. 2281 The Digital Millennium Copyright Act of 1998 (PL 105-304), at http://www.ala.org/washoff/preservation.html [hereinafter ALA Preservation].
 See 17 U.S.C. §§ 108(b)-(c).
 ALA Preservation, supra note 26.
 See Harper & Row Publ. v. Nation Enter., 471 U.S. 539, 555-60 (1985).
 ARL Administrative Briefing, supra note 8, citing the Cornell University Library, at www.library.cornell.edu/preservation/conservation.html.
 House Report, supra note 21, at 76.
 Association of American Publishers, Photocopying by Academic, Public, and Non-profit Research Libraries 14 (1978).
 American Library Association and National Education Association, The Copyright Primer for Librarians and Educators (Janis H. Bruwelheide ed., 2d ed. 1995).
 Id. at 27. This is a very logical interpretation of fair price, since few libraries could afford to purchase a second copy of an entire set of books in order to replace a single damaged volume.
 17 U.S.C. § 108(c)(3).
 S. Rept. No. 104-190 (1998).
 The amendment also renumbered the old (h) to (i).
 One might question why this section uses the term "reasonable" price rather than a "fair" price. Is there a difference? Or was this simply sloppy drafting?
 17 U.S.C. § 108(h).
 37 C.F.R. § 201.39 (2002).
 Senate Report, supra note 25. The majority of the debate concerned term extension and the fairness in music Licensing Act portion of the CTEA. See 144 Cong. Rec. H9946, 105th Cong. (1998).
 See text at note 33.
 U.S. Copyright Office website, at http://lcweb.loc.gov/copyright.
 37 C.F.R. § 201.39 (2002).
 In the Matter of Notice to Libraries and Archives of Normal Commercial Exploitation or Availability at Reasonable Price, Before the Copyright Office Library of Congress, Comments of Library Associations on Notice to Libraries and Archives, Feb. 16, 1999, at http://www.arl.org/info/frn/copy/comments.html [hereinafter Notice Comments].
 Id. Publishers frequently borrow copies of their works from libraries in order to reprint or even republish the work.
 Oakley, supra note 7, citing Crowther, Quantifying the Sales Push, Publishers Weekly, April 8, 1988 at 15. The mean number of months a book remains in print was reported to be 43.07 but that included "classics", textbooks, and reference materials that basically never go out of print. Of the total, about 40% indicated a life expectancy of between 31.6 and 41.4 months. Id.
 Victor F. Calaba, Quibbles ‘N Bits: Making a Digital First Sale Doctrine Feasible, 9 Mich. Telecomm. Tech. L. Rev. 1, 25 (2002).
 See text at note 53.
 National Research Council, The Digital Dilemma: Intellectual Property in the Information Age 9-10, 206-10 (2000).
 Kelly Russell, RLG/OCLC Report on the Attributes of a Reliable Digital Archive for Research Repositories, Draft Report. Research Libraries Group and OCLC. 17 April 2001, available at http://www.rlg.org/longterm/attributes01.pdf.
 Cornell University Libraries, Digital Image Tutorial, at http://www.library.cornell.edu/preservation/tutorial/preservation/preservation-01.html.
 Stephen Chapman, What is Digital Preservation? OCLC Speakers Papers, at http://www.oclc.org/events/presentations/symposium/chapman.shtm.
 Battin, supra note 12.
 Chapman, supra note 62.
 Commission on Preservation and Access and The Research Libraries Group, Preserving Digital Information: Report of the Task Force on Archiving of Digital Information, May 1, 1996, at http://www.rlg.org/ArchTF/tfadi.index.htm#fragility [hereinafter Commission Report].
 See, Yale and Elsevier Science Plan E-Journal Archive, Feb. 23, 2001, at http://www.library.yale.edu/~llicense/ListArchives/0102/msg00078.html
 Commission Report, supra note 65.
 For a description of replication Oracle 9i Replication: A White Paper, June 2001, available at http://otn.oracle.com/products/dataint/pdf/oracle9i_replication_twp.pdf. The author thanks Professor Greg R. Vetter of the University of Houston for bringing this to her attention.
 See Howard Besser, Digital Preservation of Moving Image Material? The Moving Image, fall 2001, available at http://www.gseis.ucla.edu/~howard/Papers/amia-longevity.html.
 See Laura N. Gasaway, Copyright Ownership and the Impact on Academic Libraries, forthcoming DePaul – LCA J. Art & Enter. (2003).
 Roy Tennant, Institutional Repositories, Libr. J. (Sept. 15, 2002), at 28, 28.
 Johnson, supra note 76.
 See generally id.
 Crow, supra note 77.
 Funding for the BOAI comes from the Open Society Institute funded by philanthropist George Soros. Id.
 Two recent articles propose that courts should consider time, i.e., age of the work, as a part of any fair use analysis and grant greater fair use rights for older works. See Justin Hughes, Fair Use Across Time, 50 UCLA Law Rev. 775 (2003) and Joseph P. Liu, Copyright and Time: A Proposal, 101 Mich. L. Rev. 409 (2002). The length of time after a work was produced would be one of the fair use factors.