Copyright and Higher Education:
Announcement of Recent Development

New Law for Preservation of Library Materials:
Copyright Legislation Clarifies Digital Preservation Activities

November 24, 1998

An Announcement from:

Kenneth D. Crews,
Associate Dean of the Faculties for Copyright Management
Indiana University-Purdue University Indianapolis
530 West New York Street
Indianapolis, Indiana 46202-3225
Voice: 317-274-4400
Fax: 317-278-3326

http://www.copyright.iupui.edu

A major copyright bill passed by Congress and signed by the President during October 1998 included in part a revision of the terms by which Indiana University libraries may make copies of certain works in their collections for preservation of those materials. Section 108 of the U.S. Copyright Act allows many libraries, particularly academic and public libraries, to make copies of copyrighted works for specific purposes and under defined circumstances. One of those purposes is the preservation of materials that may be at risk.

The new copyright legislation, the Digital Millennium Copyright Act, revises the law of preservation copying in two important respects. First, it expands the list of permissible circumstances for making preservation copies by allowing the library to preserve the work if its "format" has become obsolete. As new media proliferate and existing media fade from use, the library may find itself with whole collections of unusable materials. Remember 78s, vinyl 45s and 33s, eight-track tapes, Beta videocassettes, and 5 ½ inch floppies? A format is "obsolete" under the law "if the machine or device necessary to render perceptible a work stored in that format is no longer manufactured or is no longer available in the commercial marketplace."

Another major development is the clarification of the right to use digital media to make and store preservation copies. In general, libraries may use digital media for making preservation copies, but the digital version may be made available to users only on location at the library.

The following summary lists the basic requirements for making preservation copies of published and unpublished works under the law as now revised. These requirements are in addition to the general requirements for making any copies under Section 108, such as the revised form of the notice now required on all copies made.^*

If the library is making a preservation copy of an unpublished work in its collection, such as archival documents and photographs, a preservation copy is permitted if:

The copy is solely for preservation or security or for deposit at another library;
The work is currently in the collection of the library making the copy; and
"Any such copy or phonorecord that is reproduced in digital format is not otherwise distributed in that format and is not made available in that format outside the premises of the library or archives."

If the library is making a preservation copy of a previously published work, that copy is permissible if:

The copy is solely for "the purpose of replacement of a copy or phonorecord that is damaged, deteriorating, lost, or stolen, or if the existing format in which the work is stored has become obsolete";
The library conducts a reasonable investigation to conclude that an unused replacement cannot be obtained at a fair price; and
"Any such copy or phonorecord that is reproduced in digital format is not made available to the public in that format outside the premises of the library or archives in lawful possession of such copy."

In addition to these important changes, the new legislation also provides that the library making a preservation copy in any medium may make up to three copies of that work, instead of just the single copy previously allowed. Generally, any copies made under Section 108 are limited to single, isolated instances, but Congress recognized that the practical reality of preservation copying usually necessitates the making of backup or intermediate copies.

^* A separate announcement from the Indiana University Copyright Management Center describes another provision of the same legislation that revises the form of the notice that must be placed on all copies made under Section 108, including copies made for purposes of preservation of library materials. Click here to read this announcement. Return to text.

Copyright and Higher Education: Announcement of Recent Development

New Law for Preservation of Library Materials: Copyright Legislation Clarifies Digital Preservation Activities

Copyright and Higher Education:
Announcement of Recent Development

New Law for Preservation of Library Materials:
Copyright Legislation Clarifies Digital Preservation Activities