Re: Converting book into digital format?

[Steven Melamut <melamut@email.unc.edu>]

The substantiality test in section 107 refers to "the amount and
substantiality of the portion used in relation to the copyrighted work as
a whole."  It is not possible to argue that copying the entire book is not
copying a substantial portion.  A court is not going to support this under
fair use. <http://www4.law.cornell.edu/uscode/17/107.html>

It is possible to argue it under section 108
<http://www4.law.cornell.edu/uscode/17/108.html>

   " (c) The right of reproduction under this section applies to three
copies or phonorecords of apublished work duplicated solely for the
purpose of replacement of a copy or phonorecord that is damaged,
deteriorating, lost, or stolen, or if the existing format in which the
work is stored has become obsolete, if -

        (1) the library or archives has, after a reasonable effort,
        determined that an unused replacement cannot be obtained at a
        fair price; and
        (2) any such copy or phonorecord that is reproduced in digital
        format is not made available to the public in that format outside
        the premises of the library or archives in lawful possession of
        such copy. For purposes of this subsection, a format shall be
	considered obsolete if t 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. "

It is possible to make a copy of an entire work for another library or a
patron under section 108(e) if the copy cannot be obtained at a fair price
(and the courts will expect the library to have tried to purchase it), but
the copy must become the property of the user, the library must have no
notice that the copy will be used for anything other than private study,
scholarship or research and the copy is labeled as such.  The intent is to
provide a means of copying an out-of-print publication, not of a book
commercially available at this time.

All of this deals with paper copies.  Changing the format to digital opens
a new can of worms.


Steve

******************************************************
                         Steven Melamut
                     melamut@email.unc.edu
******************************************************


Rick Anderson wrote:

> Margaret Becker says:
>
> > ... the copyright holder MUST approve anything of
> > this nature.
>
> I'm not sure that this is true.  As I understand the four-fold test for
> fair use, copying the entirety of a copyrighted work is perfectly
> acceptable under some circumstances.  If the proposed use would be fair,
> there's no need to ask for permission -- in fact, I'd counsel against it;
> let's not encourage copyright holders in the belief that they get to
> decide what fair use is.
>
> Parenthetically, I'm not surprised that the gentleman who sent the
> original message has had trouble getting responses from publishers.  From
> my interactions with them, it's pretty clear to me that they're every bit
> as unsure what to do about these kinds of situations as we are.
>
> --------
> Rick Anderson
> Head Acquisitions Librarian
> Jackson Library
> UNC Greensboro
> (336) 334-5281
> rick_anderson@uncg.edu