Re: [Videolib] verification of archival copy laws

media2 (media2@burlco.org)
Mon, 26 Apr 2004 15:02:52 -0400

Refer to the Digital Millennium Copyright Act passed on October 12, 1998
amending Section 108 title 17, Chapter 92 and further modified by the
Sonny Bono Copyright Extension Act of 1998 and the Technology, Education
and Copyright harmonization Act or 2002, aka The TEACH Act regarding
duplication and archive preservation of audiovisual and phonorecordings.

Section 108.c as modified in 1998 allows "three copies or phonorecords
of a published work duplicated solely for the purposes of replacement of
a copy or phonorecord that is damaged, deteriorating, lost, stolen or if
the EXISTING FORMAT IN WHICH THE WORK IS STORED HAS BECOME OBSOLETE."
(emphasis added)

"For the purposes of this section, a format shall be considered obsolete
is 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 MARKET PLACE." (emphasis added).

108.c.2 says you have to make a reasonable effort to obtain an unused
copy at a fair price.

108.c.3 says , "any such copy that is reproduced in a digital format is
not made available to the public in that format outside the premises of
the library or archives . . ."

Further Section 108 (h)(1) as Amended by the Sonny Bono Copyright
Extension Act of 1998 says,

(h)(1) For purposes of this section, during the last 20 years of any
term of copyright of a published work, a library or archives, including
a nonprofit educational institution that functions as such, may
reproduce, distribute, display, or perform in facsimile or digital form
a copy or phonorecord of such work, or portions thereof, for purposes of
preservation, scholarship, or research, if such library or archives has
first determined, on the basis of a reasonable investigation, that none
of the conditions set forth in subparagraphs (A), (B), and (C) of
paragraph (2) apply.

(2) No reproduction, distribution, display, or performance is authorized
under this subsection if

(A) the work is subject to normal commercial exploitation;

(B) a copy or phonorecord of the work can be obtained at a reasonable
price; or

(C) the copyright owner or its agent provides notice pursuant to
regulations promulgated by the Register of Copyrights that either of the
conditions set forth in subparagraphs (A) and (B) applies.

(3) The exemption provided in this subsection does not apply to any
subsequent uses by users other than such library or archives.

Observe the wording of Section 108.i below taken from
www.copyright.gov/title17/92chap1.html#108 -

(i) The rights of reproduction and distribution under this section do
not apply to a musical work, a pictorial, graphic or sculptural work, or
a motion picture or other audiovisual work other than an audiovisual
work dealing with news, except that no such limitation shall apply with
respect to rights granted by subsections (b) and (c), or with respect to
pictorial or graphic works published as illustrations, diagrams, or
similar adjuncts to works of which copies are reproduced or distributed
in accordance with subsections (d) and (e). (emphasis added)

To explain the above reference the Conference Report and Historical
Revision Notes 94-1476, recall that Pub. L. 105-298
<http://www4.law.cornell.edu/cgi-bin/usc-pl/105/298> added subsec.
subsec. (h) as (i) thus - . "The exclusions under subsection (h) (now
subsection i) do not apply to archival reproduction under subsection
(b), to replacement of damaged or lost copies or phonorecords under
subsection (c), or to ''pictorial or graphic works published as
illustrations, diagrams, or similar adjuncts to works of which copies
are reproduced or distributed in accordance with subsections (d) and (e).''

It is upon this that archivists hang their hat for allowing reproduction
of motion media for archival purposes and within the other limitations
of Section 108.

Mark Richie
Burlco EMTC

LeeAnne Krause wrote:

> We have a bunch of 16mm films, excellent content quality, but most of
> them are very old, and some have some shrinkage. My understanding is
> that we do NOT have the right to make vhs copies, since 16mm is not an
> obsolete format. If a 16mm film is in really bad shape and needs to be
> discarded, we COULD make a copy but not circulate it. Is this
> assessment correct?
> Thanks,
> LeeAnne
> LeeAnne L. Krause, Manager
> Educational Film Library
> Thomas Cooper Library
> 803-777-0322
>

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