Copyright and Digital Preservation

Under normal circumstances, you cannot copy, display, or transform a copyrighted work [Sec 106]

• "Reproduction" is the exclusive right of the copyright holder [Sec 106(1)]
• "Public display" is an exclusive right of the copyright holder [Sec 106(5)]
• Creating a "derivative work" is an exclusive right of the copyright holder [Sec 106(2)]

Exception for Libraries and Archives making preservation copies [Sec 108]

• Library or Archive must be either open to the  public or allow access to non-affiliated researchers
• Copying  cannot be for "direct or indirect commercial advantage"
• The institution must own a legal copy of the original item
• Every copy must carry a notice of copyright
• If the work is unpublished, preservation copies can be made for the purpose of preservation or  security
•  If the  work is published, preservation copies can be made to replace an  original that is "damaged, deteriorating, lost, or stolen, or if the  existing format in which the work is stored has become obsolete."
•  A format is obsolete "if the machine or device  necessary to render perceptible a work stored in that format is no  longer manufactured or is no longer reasonably available in the 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 marketplace."
• "The library or archives must also conduct a  reasonable investigation to confirm that an unused copy cannot be  obtained at a fair price."
• "If digital copies are made, access to the  digital version must be limited to the premises of the library or  archives."
• Audiovisual works are covered by this Section (unlike in the 1976 Act).
  
• Section 108 does not help libraries and archives preserve materials that they do not own, such as networked resources  or Web sites. Nor does Section 108 apply to an individual who wants to  preserve a digital file, even if they have legally acquired it.
  

• If all the above are met, the library or archive can make up to 3 copies of the work for preservation purposes [Sec 108 (b) & (c)]
  
• Digital copies can be made under this provision, but the digital files cannot be "distributed in that format and ... not made available to the public in that format outside the premises of the library or archives". [Sec 108 (b) (2)]
• The law is less restrictive on limited distribution of audiovisual news programs
  

Exception for "Fair Use" by either Libraries or Individuals [Sec 107]

• (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
• (2) the nature of the copyrighted work;
• (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
• (4) the effect of the use upon the potential market for or value of the copyrighted work.

Limitations on exclusive rights: Computer programs [Sec 117]

• "A 'computer program' is a set of statements or instructions to be used directly or indirectly in a computer in order to bring about a certain result". [Sec 101]
  
• If you own a legal copy of a computer program, you can make an archival copy if that's necessary to make it useable "in conjunction with a machine".
• The new copy "is for archival purposes only" and must be destroyed if your continued possession of it "should cease to be rightful".  [Sec 117 (a) (2)]
   

Copyright and Orphan Works