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Re: [ARSCLIST] Libraries, circulation copies and fair use



LC's Section 108 Study Group website [http://www.loc.gov/section108/] is a good
place to start an investigation into this issue, including a series of public comments
by librarians concerning the production of surrogate copies.


And for the record, the first section of 108 reads:

§ 108· Limitations on exclusive rights: Reproduction by libraries and archives
(a) Except as otherwise provided in this title and notwithstanding the provi-
sions of section 106, it is not an infringement of copyright for a library or archives,
or any of its employees acting within the scope of their employment, to repro-
duce no more than one copy or phonorecord of a work, except as provided in
subsections (b) and (c), or to distribute such copy or phonorecord, under the
conditions specified by this section, if—
(1) the reproduction or distribution is made without any purpose of direct
or indirect commercial advantage;
(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 re-
search in a specialized field; and
(3) the reproduction or distribution of the work includes a notice of copy-
right that appears on the copy or phonorecord that is reproduced under the
provisions of this section, or includes a legend stating that the work may be
protected by copyright if no such notice can be found on the copy or phono-
record that is reproduced under the provisions of this section.


cheers,
 Brandon.

____________________________________
Brandon Burke
Archivist for Audio Collections
Hoover Institution Archives
Stanford University
Stanford, CA 94305-6010
vox: 650.724.9711
fax: 650.725.3445
email: burke@xxxxxxxxxxxxxxxxxxx

On Jan 8, 2008, at 6:24 AM, Farrington, Jim wrote:

Libraries can legally circulate almost anything they want. The exception
would be personal archives for which a contract was drawn up that
specifically excludes items from even being shown, but I'm assuming you
are asking about commercial items bought for the collections. Whether
they choose to circulate items--books, recordings, videos, periodicals,
computer programs, artwork, video games, or any other physical thing--or
not is entirely at the discretion of that library, regardless of its
size or primary clientele. I guess I should also say that I am talking
about original items, not surrogates (the scenarios mentioned below
strike me as being extremely questionable, legally--section 108 of Title
17 covers library exceptions to U.S. copyright laws, whereas section 107
covers individuals).


Jim Farrington
Head of Public Services
Sibley Music Library
Eastman School of Music
27 Gibbs St.
Rochester, NY  14604
585-274-1304    585-274-1380 (f)

-----Original Message-----
From: Association for Recorded Sound Discussion List
[mailto:ARSCLIST@xxxxxxx] On Behalf Of Tom Fine
Sent: Tuesday, January 08, 2008 8:45 AM
To: ARSCLIST@xxxxxxxxxxxxxxxx
Subject: [ARSCLIST] Libraries, circulation copies and fair use

Hi All:

I'm hoping we have some library-policy experts here that can point me to
some answers.


Can a library -- not a big institution or university, just a local
community library -- circulate
single copies of out-of-print CD's and DVD's they have in their
collections? I did a quick Google
and couldn't find a definitive answer. I thought Stanford had a
simple-to-understand "yes and no"
guide to fair for libraries use but I couldn't find it this morning. If
I recall that web page,
which I read some time ago, it is fair use to take out of circulation
and circulate a single copy of
an item that is either non-replaceable or replaceable at great cost (ie
out of print).


Further, what about circulating single copies of ALL CD and DVD media
given the proven fragile
nature of the media? My local library head tells me that she gets DVD
failure reports after 10 or
fewer circulations in some cases, and most older CD's in the library
system are badly scratched and
sometimes gouged. Books on CD are bigger problems because some
publishers do limited dupe runs onto
CDR media and that wears out quickly from typical in-car handling.
Audiobook publishers vary on
replacement policies, the library lady told me. Some do it for the cost
of postage if you send back
the damaged disc. Some charge as much as $20 per disc. The librarian
told me that local libraries
are in a big bind with all of this because printed books are just not
their bread and butter
anymore. DVD's are a huge circulation item, as are kids' computer
software and games. Music CD's are
a somewhat popular circulation item. But the big one is audiobooks, she
said.


When I was a kid, if I went to the local library and wanted to borrow a
kiddie-sound thing that was
on a cassette, the library would run off a copy and circulate the copy
with me. When I brought the
tape back, they'd put it in a pile to be re-copied with something else
and re-circulated. The
librarian explained to me that the albums were expensive to replace and
kids had a habit of mangling
cassette tapes. I'm not sure how strict they were about only having one
copy in circulation but I
think that requirement may have been tightened up with a law made after
I was a kid. I grew up in a
town that had plenty of lawyers living in it, so I doubt this procedure
was patently illegal back
then.


Has the ARSC published any articles previously that bring some clarity
to all of this fair-use
thing? I think it would be a very helpful resource, one version for
local libraries and small
circulating collections, one version for big institutions like
university libraries and one version
of individual collectors (ie do we pose any risk of arrest if we choose
to back up our personal
collections to hard drive? -- there seem to be many different opinions
on this, from the
ultra-paranoid to the "what me worry".


-- Tom Fine


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