Researchers, librarians, and other information professionals often develop a great ideas for internal databases of articles or digital library initiatives only to be unable to bring the project to fruition because of copyright. Librarians are frequently put in the position of having to deliver the bad news that reproducing the materials even for an internal web site or database is likely to constitute copyright infringement. For some reason, many researchers, faculty, and others simply do not recognize that scanning journal articles into a database constitutes a reproduction of a copyrighted work and likely is infringement when the database is to be consulted repeatedly. Nor do they consider that digitizing an older work still under copyright and making it available on a web site may infringe the copyright on the work.
Databases--Researchers and other users of copyrighted journal articles are interested in having these articles continuously available to them. Even if the corporate library subscribes to needed journals, in order to access the article, the researcher has to either go to the library or request that a copy be delivered to her office by the library staff. When the organization in which the researcher works is in the profit-making sector, according to the Texaco case, royalties must be paid on those copies reproduced for researchers to use in the course of their employment. Many of these researchers are in organizations that have an annual license for internal copying with the Copyright Clearance Center. Thus, making the photocopy of the article, if it is covered under the CCC license, is permitted.
What confuses many users is that digital copying is not covered under the blanket CCC photocopy license. There is now some limited digital licensing with the CCC, but it is not ubiquitous and it is separate from the annual photocopy license.
What is different about reproducing an article as a photocopy and reproducing it as a scanned image? To librarians, frankly, not much. As librarians we are concerned about the information contained in the article, and whether copied in one form or the other, the same information is delivered to the patron. To publishers, however, the scanned image now creates perfect copies, and there is no denigration of quality as occurs with photocopies. They view this almost as republishing since anyone who accesses this database can then produce a perfect copy for himself. Certainly, a copy is made when the work is scanned. Further, when a user of the database prints or downloads the article, a copy is made.
Because of the nature of computer technology, however, a copy is also made when one even views the work on the computer screen. Publishers believe that this transient copy is one that triggers their exclusive right of reproduction; many others disagree and believe that it is the use made of the copy which might be infringement as opposed to the mere act of copying. The World Intellectual Property Organization supports the publishers' views, however, and until this issue is settled, uncertainty about the nature of this activity will remain.
Digital Library Projects--Libraries and researchers are also initiating digital library projects. Many well-known digital library projects do not encounter copyright problems at all since the materials being digitized and made available are within the public domain. A good example is the Library of Congress' digital library initiative. When materials are in the public domain, anyone can reproduce the works and redistribute them in any format. The libraries that are developing these projects sometimes use not only public domain materials, but also copyrighted works that are rare or scarce. The library may have the only copy of the work or one of very few; therefore, when the library makes the work available on the web, the work is given new life. This does not eliminate copyright problems, however.
When there is a desire to include a copyrighted work in a digital library project, permission must be sought and royalties paid, with one exception. The Sonny Bono Copyright Term Extension Act1 I added a new subsection to the library exemptions of the Copyright Act to help ameliorate the problems for libraries caused by extending the copyright term by an additional twenty years. Under the new Section 108(h), during the last twenty years of a copyrighted work's term, a library or nonprofit educational institution may reproduce the work in either facsimile or digital format if the library determines by reasonable investigation that: (1) the work is no longer subject to commercial exploitation, (2) a copy cannot be obtained at a reasonable price or (3) the owner of the copyright in the work provides notice that neither of these conditions applies. Thus, if the digital library is created from works that have only twenty years to run on their terms and the library satisfies these conditions, then including the works as a part of the digital library project is exempted. Because the whole purpose of the digital library is to make the materials widely available, obtaining permission from the copyright owner of newer works may be difficult. When works in a digital library project are available on the web, the copyright owner has functionally lost the opportunity to re-issue the work, thus destroying the market for the work.
Permissions--When a library wants to create either an internal database of published articles or a digital library of copyrighted works, it should begin the process of seeking permission very early as it may be difficult to locate copyright owners and to determine who owns the copyright if the publisher has ceased to exist. For works published since 1978, the Copyright Office's registration records may be searched on the web to determine who owns the work. If the work was published earlier than 1978, the registration records exist only in a single copy at the U.S. Copyright Office. One must check the records at the Copyright Office by going to Washington to do so, hiring a search firm to check the records, or engaging the office to conduct the search. The latter is less expensive than hiring a private firm, but it may be slower.
If the library still cannot determine with certainty who owns the copyright in the work, then it must perform risk analysis and decide whether including the copyrighted work in the database or digital library project is worth assuming the risk of infringement. Corporate libraries incur greater risk than do those in the nonprofit sector, but all libraries take a risk when they include copyrighted works in databases of digitized articles or in digital library initiatives without permission of the copyright holder.
1 Pub. L. 105-298 (1998).
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