Information Outlook, Vol. 6, No. 7, July 2002
Digital Library Projects and Copyright by Laura Gasaway
Today both academic and special libraries are creating digital libraries and archives. Digital projects generally have two goals: 1) to preserve library material; and 2) to make the materials available to users both near and far.
Whether the library confronts copyright problems in developing these projects depends on the ownership of the copyright, the status of the work and at least somewhat on the distribution of digital copies. Some digital products are for preservation only (the digital version is not made available to users), while the sole purpose of other projects is to provide increased availability. Some digital library projects involve public domain materials in which the institution or organization has a significant interest. Since this material is not protected by copyright, the library is free to make the digitized public domain work available on an intranet or on the Web. Other digital library projects involve digitizing unpublished archival materials such as letters, diaries and manuscripts. Frequently, a library will not have obtained the copyright in the deed of transfer when the artifact was received. While the library or archive may often own the only copy of a work, unless the copyright holder specifically transferred the copyright along with the item, the institution does not have the reproduction and distribution rights.
The Digital Millennium Copyright Act gave libraries the right to make up to three copies of an unpublished work for preservation, security or deposit for research in another library. One of these copies may be digital (17 U.S.C. § 108(b) (2000)) However, a digital copy of a copyrighted, unpublished work made under this section may not be made available to the public outside the premises of the library or archives, and thus may not be distributed via the Web.
At the end of 2002, a huge number of unpublished works will enter the public domain. Works that were in existence on January 1, 1978, and which remain unpublished through the end of 2002, will enter the public domain at the end of December 31, 2002 or life of the author plus 70 years (whichever is greater). Within a few months, there will be no copyright problem with making many of these works available on the Web, because they will have entered the public domain. If the library or archives does not hold the copyright, then before digitizing the work and making it available to the public, the library should seek permission of the copyright holder. The author holds the copyright or if the author is deceased his/her heirs will hold the copyright. If the library or archives has made a significant effort to locate the author or the heirs but has been unable to do so, it could decide to assume the risk of liability and make the digital work available.
There are also older published materials in which libraries and archives have an interest for adding to digital library collections. The work may be out of print but still under copyright. The library must either request permission from the copyright owner to digitize such works or be willing to assume the risk for digitizing the work and making it available to users. A copyright holder is less likely to grant permission for digitizing a work still protected by copyright if it has any interest in either reprinting it or bringing out a new edition of the work, including a digital version. On the other hand, it is often difficult to locate the copyright holder if the publisher of the work has disappeared or gone out of business.
The 1998 Copyright Term Extension Act added a new subsection (h) to section 108 of the Act, which was intended to reduce the effects of the 20-year term extension. It provides that during the last 20 years of a work's term, a library, archives or a nonprofit educational institution may reproduce, distribute, display or perform a work in either facsimile or digital form if certain conditions are met. The library must first determine by reasonable investigation that: (1) a copy of the work cannot be obtained at a reasonable price; and (2) the work is no longer subject to commercial exploitation. This can be determined by contacting the copyright owner, who provides notice that neither of these two conditions exists. The statute contains no restriction on making such work available on the Web. The exemption does not apply to any subsequent uses by users other than the library or archives that makes the investigation. So, each library or archives that wants to digitize such a work must conduct its own investigation.
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