Copyright and Digital Preservation

Howard Besser

Digital Preservation class, Spring 2005

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

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

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

Fair Use as a defense takes into consideration the following factors:
For preservation copying, an institution is likely in the clear for factor #1.  Factors #2 and #4 are likely to be fine for orphan or marginal works, but might be challenged by the Content Industry for any work that might have some potential commercial value.  Factor #2 looks very troubling, but the library and archive communities have made arguments to overcome this factor.

For a strong argument from the perspective of a librarian/lawyer, see Mary Minow's How I Learned to Love FAIR USE… or how to bring a $300,000 lawsuit down to $0 if you're a library, archive, or nonprofit educational institution 

Limitations on exclusive rights: Computer programs [Sec 117]

A good source for more information is Peter Hirtle's Digital Preservation and Copyright  

Copyright and Orphan Works