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Note: The projects and links in this paper were active at the time of writing. Many of the links no longer function and/or the project has morphed into something else. Therefore, broken links have been removed but not the name of the collection.
RECENT COPYRIGHT LAW DEVELOPMENTS:
Digitizing Text, Image Collections, and Audio Materials
November 14, 2003
Peggy E. Hoon
North Carolina State University
Raleigh, North Carolina
I. The State of Electronic Reserves Today
II. Text Based Electronic Reserves
III. Digital Image Collections
IV. Digital Audio Reserves
I. The State of Electronic Reserves Today
This paper will explore three developing areas of interest to institutions of higher education, their libraries, and museums as each seeks to effectively fulfill their preservation and access roles in the digital environment. That is, how can institutions both preserve and provide digital access to their information resources, specifically collections of text, images, and music in the context of instructional support.
II. Text-Based Electronic Reserves
An informal survey of the sixty members of the American Association of Universities (AAU) confirms that most, if not all, major institutions of higher education in the United States have now deployed some form of electronic reserves system (e-reserves). Most of these e-reserves have also moved beyond simply posting the faculty member’s own notes and syllabus to inclusion of third party copyrighted materials such as book chapters, monographs, and journal articles. Because of this and because e-reserves potentially implicate rights of the copyright holder not directly affected in previous and current traditional print reserves, many institutions have developed specific policies and/or guidelines for e-reserves.
A. Print vs. Electronic: Quick Review
In the United States, the rights of the copyright holder include the right of reproduction, modification, distribution, public performance, and public display. Traditional library print reserves involve either placing the actual book or journal article on the shelf or in a folder or substituting one or more photocopies of the book portion or journal article, depending on the size of the class and/or the fragility of the original materials. Either the library staff or the faculty member provides the photocopies, implicating the copyright holder’s right of reproduction in the case of the photocopies. To check out the reserves material, customary library practice is to require the requesting individual to have a campus id card only, not to require demonstration of actual enrollment in a particular class. Individuals checking out the reserves material either read it immediately or, more likely, make a copy on library self-service photocopy machines. In doing so, the individual exercises a well-accepted fair use right and the library is protected from any potential infringement claim as long as the copier displays the statutorily required notice.
In practice, the purpose of reserves is to support classroom teaching and it is commonly viewed as an extension of the classroom. And, in practice, reserve readings are important to the class learning experience or the faculty member would not go to the trouble of locating them and placing them on reserves. Furthermore, to purport to require reserve readings to be “supplemental” materials rather than “required” materials, is a distinction with little merit and reflects perhaps an unrealistic view of higher education teaching needs. Nevertheless, reserves material can be “required” without being the actual “core” materials of the course such as a purchased text. How would “supplemental” vs. “required” materials be distinguished in any meaningfully consistent way, who would make such determinations, who and how would the institution begin to police such matters, and, most of all, why would the institution direct its limited and ever-shrinking resources in such a direction?
An e-reserves system begins with the print reserves system and adds a great deal of pros and cons. A major drawback is the significant time and effort required of the library reserves staff to input and/or link to the requested material and to provide technical support. Additionally, e-reserves implicates additional rights of the copyright holder beyond the right of reproduction (distribution, public display, and possibly public performance) which will factor into a copyright analysis. Responsibility for the copyright analysis and any resulting permissions process falls to either the library staff or the faculty member. It also takes money – for permissions requests and payments, for staff time, and for the computer system and tracking software.
The benefits of e-reserves are equally compelling, especially the substantial increase in accessibility to instructional materials by the student any time, any day, and from anywhere. Such accessibility is more than mere convenience, especially with non-textual materials, and may mean the difference between the student achieving the learning objective or not.
B. Defining Characteristics and Watershed Decision Points for E-reserves Systems
Most, if not all, functioning e-reserves systems have a policy and/or guideline that governs their use whether it is readily apparent on their website or not. And, no doubt, both the library administrators and/or their university counsel consider that they have already decided the legal course their e-reserves will take and do not wish to do it again. However, there are at least two reasons for reconsidering or re-evaluating how well the policy adopted for text e-reserves is working now that several semesters or even years have gone by since its implementation.
First, the text e-reserves system may not be functioning well at all. Obtaining permissions deemed to be necessary may have become prohibitively expensive, either in terms of fees, conditions of use, or the amount of staff time required in following up with non-existent or non-responsive copyright holders. In fact, some e-reserves have become so mired in the permissions process that, in order to get materials posted during the relevant semester, the library asks for permission and posts the material at the same time. Presumably, these libraries have determined that their proposed use is not a fair use and, therefore, requires permission. Nevertheless, they proceed with posting the material simultaneously with the permissions request and call it a “good-faith” request for permission. They will go on to remove the material if the copyright holder eventually responds in a negative or unacceptable fashion. In the meantime, though, the material has been up – under no particular copyright law exemption and perhaps exposing the institution to liability.
The second reason for re-evaluating current e-reserves policies is that they were originally developed for text-based materials. As e-reserves systems evolve and mature, many have now come to include digitized images and slides as well as audio and audio-visual materials. These additional materials require thoughtful analysis of their own legal considerations for reserves use and possibly their own policy with respect to copyright.
1. Primary Characteristics of Current Text E-Reserves Policies
The most comprehensive e-reserves policies generally share the following major characteristics:
• A position statement in support of fair use
• Required ownership of the original item by the library or the faculty member
• Choice of material lies solely with the faculty member
• A statement on amounts and kinds of materials accepted
• Limitations on who can access the materials
• A statement describing the disposition of materials after the end of class
2. Primary Decision Points
The pivotal, non-technical decision points for e-reserves policy developers are the following:
• Will the e-reserves materials be limited to students enrolled in the actual class or will the e-reserves system parallel the print reserves system and allow access by any authenticated university user?
• Will fair use be asserted beyond the first use of the materials, i.e., does fair use encompass the right to use the materials more than once?
• Whose responsibility is it to assess the copyright status of the materials – the faculty member or the library?
C. Legal Approaches
As always, the legal basis for posting materials on e-reserves is either with the permission of the copyright holder or under the fair use provisions of §107. Specifically, e-reserves is not conducted pursuant to the library provisions of 17 U.S.C.§108 or the performance and display provisions of 17 U.S.C.§110. Because of this, librarians and their counsel are cautioned not to import §108 or §110 requirements or conditions into a fair use e-reserves policy. For example, it is important not to confound the access, notice, and downstream controls requirements of §108 and §108/110(2) into a fair use e-reserves policy. Similarly, the conditions for converting analog material into digital format found in §110(2) are not required for library e-reserves. Such blurring of sections inappropriately confuses the fair use analysis resulting in unnecessary burdens on institutions.
1. E-reserves and Fair Use
Most university library e-reserves policies contain a statement approving the exercise of fair use in connection with e-reserves services similar to the following:
The Library Reserves Copyright Policy supports and advances the Constitutional principle that the fundamental purpose of copyright is to promote the progress of science and the useful arts through the broad dissemination of information in a manner consistent with current copyright law. The library course reserves system serves to provide valuable readings and other materials that support the instructional requirements of specific courses. Essential to effective fulfillment of the library’s foundational role in the university setting is the confident and lawful exercise of legitimate use rights as set forth in the fair use provision, Section 107 of the United States Copyright Act of 1976.
Section 107 Fair Use:
For institutions of higher education, the cardinal portion of the Copyright Act is Section 107 of the Copyright Act, the fair use provision. This section sets forth the factors that must be evaluated in determining whether a particular use, without prior permission, is a fair and, therefore, permitted use. The legitimate and lawful application of fair use rights provides the necessary and Constitutionally envisioned balance between the rights of the copyright holder versus societal and educational interests in the dissemination of information.
Section 107 is as follows:
Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified in that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include:
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.
All collections of the library -- regardless of physical format -- are purchased by the university for the nonprofit, educational use of students and faculty. All library materials are acquired with the understanding that there will be multiple uses of a limited number of copies. The library frequently pays a premium institutional subscription price for journals, which is many times the individual subscription price, for the privilege of supporting multiple academic users.
Electronic Reserves is an extension of traditional library services and will be provided in a manner that respects fair use rights, the rights of copyright holders, and current copyright law. The electronic copying and scanning of copyright protected works for library reserve service and distance learning are unsettled areas of the law which may be addressed by courts and/or legislation. The library will continually monitor legal developments that may affect the fair use analysis of Electronic Reserves services to ensure that library services are in compliance with the letter and spirit of the U.S. copyright law.
A number of universities additionally maintain that fair use only applies the first time particular material is used on e-reserves and that all subsequent e-reserves uses – regardless of the nature of the material or the amount used – require the permission of the copyright holder. This type of policy substitutes a uniform, inflexible “rule” in place of the statutory traditional fair use analysis. That is, rather than evaluate materials submitted for placement on e-reserves on an individual basis applying the fair use factors in a reasonable, responsible, good-faith fashion, these libraries abandon fair use and commit to the significant task of identifying, locating, contacting, and negotiating with copyright holders for dozens of works.
There is nothing in the statutory language of §107 that explicitly states that fair use is limited to one use. The presumed rationale for this practice is that subsequent use somehow, even with different students and perhaps even with a different course and a different pedagogical purpose, negatively affects the fourth fair use factor: the effect on the market or potential market for the work. Furthermore, there is considerable debate as to the appropriate market to consider in the fair use analysis. That is, is the relevant market for purposes of the fair use analysis the market for the actual work or is it the permissions/royalty market? Is the inquiry whether or not the copyright holder “lost” the sale of the book or a journal subscription or whether a permission fee was “lost”? Those favoring the latter view sometimes argue that fair use exists just to remedy those market failures attributable to excessively high transactions costs associated with obtaining permissions (that is, when it is impossible or prohibitively expensive to obtain permission). Additionally, supporters of the only-one-use-position point to the nearly 30-year old Guidelines for Classroom Copying in Not-For-Profit Educational Institutions as the origin of the “no subsequent use can be fair” position even though those guidelines do not have the force of law, were not intended for library reserves, and were meant as a general indication of the minimum or “floor,” as opposed to the maximum or “ceiling,” of fair use. There is certainly no indication in the statute or in case law that repeat use, in and of itself, should automatically and under all circumstances, negate all the other fair use factors.
It is well-established and quite clear that copyright must serve the public purpose of encouraging learning and the dissemination of knowledge. Copyright law exists “To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.” Access to and dissemination of knowledge for teaching and scholarly purposes is synonymous with the “promotion of the progress of science and the useful arts.”
The responsible exercise of fair use within the higher education setting furthers this constitutional purpose because access to and dissemination of information and knowledge is foundational to the university mission. Indeed, §107 specifically cites as examples of possible fair use, “teaching (including multiple copies for classroom use), scholarship, and research.” Fair use seeks to permit those uses that have significant external benefits that are spread across society as a whole. In addition to teaching, scholarship, and research, such benefits include criticism, comment, and news reporting. These benefits cannot always be internalized or factored into a bargained-for exchange, such as occurs within a permissions/licensing situation. The difficulty in achieving these benefits represents a form of market failure not solved by a permissions system but rather by the exercise of fair use rights. The mere existence of a permissions system to create a legally relevant market which can then be harmed by the failure to pay the fees demanded and its concomitant overemphasis on money minimizes the importance of fair use in furthering the public purpose goal of copyright. Allowing “lost” permission fees to constitute the market harm envisioned by the fourth fair use factor and, further, then allowing that factor to dominate the fair use analysis is inherently circular and logically vulnerable. Such an analysis has at its premise precisely the legal conclusion at issue: i.e., that the use at issue is not a fair use and, therefore, the copyright owner is entitled to charge permission fees. If fair use is only permitted when market failure due to high transaction costs exists, then permission systems will effectively destroy fair use. Such an outlook will erode the public interests aspects of fair use and the societal benefits it seeks to promote such as access to works, dissemination of information, and promotion of learning.
D. Future of Text E-Reserves
Even if no re-evaluation is done or changes made to existing e-reserves policies – whether because they are working well or not – there are at least two developments that may alleviate some of the e-reserves questions from the library’s point of view, although perhaps not from the university as a whole.
The first development is the increasing ability of libraries to “point” or link to the desired e-reserves materials within an already licensed electronic resource like an e-journal or e-database. Before this option can reach its full potential, several conditions must exist.
First, the license for the electronic resource (the e-journal or electronic database) must not prohibit e-reserves uses. In the early years of licensing electronic materials for libraries, it was not uncommon to see specific license terms prohibiting e-reserves. Of course, it defies logic why a tiny subset (an article) of a resource that is licensed for use by all authorized university users (faculty, staff, and students - a group that often encompasses tens of thousands of users) would be denied to a tiny subset of the authorized users (the students in a particular class) or why such a use would require additional permission and/or fees. Fortunately, prohibitive e-reserves clauses are less prevalent and/or can be negotiated out with greater success.
Second, in order to point (link) directly to a particular article, there must be a way to establish a stable url for the article. The ability to do this can vary from resource to resource.
Finally, effective and efficient communication needs to exist between the license negotiator and the e-reserves staff. Unless there is a good way for the e-reserves staff to quickly determine whether a particular work is available through a previously licensed resource, they will not be able to avail themselves of this option.
The second development that may alleviate some questions regarding e-reserves system from the library’s point of view is that faculty are beginning to move away from using e-reserves toward inclusion of materials that pertain to their class within their own class website utilizing courseware applications such as WebCT or Blackboard. Because the materials would then be located within the cocoon of the course website, the copyright issues/decisions move from the library to the individual faculty member. [The recent Technology, Education, and Copyright Harmonization (TEACH) Act amendments to the performance and display exemptions of 110(2) will probably not apply to the usual text course materials at issue (journal articles and portions of longer works) because TEACH only authorizes (under many other conditions) the display of works in amounts comparable to those ordinarily displayed in a live classroom setting. Faculty members typically do not “display” entire journal articles or book chapters during the course of a live classroom session.] From the institution’s point of view, such a transfer of decision-making emphasizes the importance of providing copyright information resources and education to the university community as a whole.
III. Digital Image Collections
Universities and their libraries, as well as museums, are now moving beyond the text-only e-reserves model to providing online digital images, collections and/or digital images e-reserves. In addition to specific course support, some schools (usually art, art history, and architecture) and/or their libraries are digitizing portions of their non-digital slide collections for various educational purposes, including placing them online for nonprofit educational uses beyond the university. Copyright issues surrounding such use of images are obviously front and center. Similar questions/issues arise in the context of digitizing special collections materials in the libraries and colleges or for museums presenting online exhibits of their collection. If there is any doubt whether these issues are or will be visiting your neighborhood soon, an informal survey of the AAU institutions looking for all kinds of online image collections reveals a huge amount of images already available online. Sites supporting instructional efforts include:
1. Indiana University’s Digital Images Delivered Online (DIDO)
“The Indiana University Department of the History of ArtDIDO Image Bank is dedicated to the storage of low resolution (72 dpi) images from the Fine Arts Slide Librarycollection of over 320,000 images. Encompassing the full breadth of art historical periods and media, the Image Bank contains some 28,000 images from our collection.”
2. University of Oregon Libraries Image Reserve
“IMAGE RESERVE is a service of the University of Oregon Libraries, in cooperation with departments and programs at the University of Oregon. These images are offered for the benefit of students enrolled in credit courses in which the study or review of images (including but not necessarily limited to those posted here) is required for the successful completion of the course. Images shown at this site will be removed at the end of the term in which the course is offered.”
3. University of Michigan
Media Union Library Visual Resources Collection
4. University of Pennsylvania Library Online Image Collections
“This collection is open to the entire Web for searching and viewing the thumbnail images. The large version of the images is restricted to the Penn domain.”
5. Columbia University
“The Art Image Collection and Art Humanities Image Reserve Collection are available for viewing for current Columbia faculty, staff and students only.”
For public viewing of digitized image collections and unrelated to specific instructional activities (i.e., functioning as online exhibits or public resources), see:
1. University of Arizona Library's World Wide Web Exhibits
“The University of Arizona Library has developed one of the largest collections of community-based World Wide Web exhibits in the country. Under the headings of Images of the Southwest and Through Our Parents' Eyes: Tucson's Diverse Community, valuable Library collections have been extended to K-12 and college students in Tucson, Arizona, the United States, and the world via the Internet.”
2. CIDC: Cornell Institute for Digital Collections
“In an effort to responsibly, and legally, present the images, larger image files are only presented on works where copyright is not in question. Under "fair use" guidelines, only thumbnail images are available for works in copyright. When selecting an image to view in the "Image Workspace," a red X or broken icon will appear when the image is in copyright.”
3. Berkeley’s Slide & Photograph Image Retrieval Online (SPIRO)
“SPIRO contains surrogate images of photographs and drawings from approximately 2,000 books, 200 periodical titles, and 100 postcards, posters, and calendars. SPIRO also contains surrogate representations of slides from 25 slide vendors and 220 donors. Digital images in SPIRO are surrogate representations of real photographs, slides, and drawings. U.S. government images and images published prior to 1921 are most likely in the public domain, and may be available for use without further permission. All other digital images in SPIRO probably represent copyrighted works and should not be downloaded or otherwise used without permission of the copyright holder.”
4. Library of University of California Images (LUCI)
“LUCI is an inter-campus digital image databank intended for educational use.”
“Copyright notice: The images in this database were taken by UC faculty and staff at sites where photography was permitted. To the best of our knowledge, the copyright of these images belongs to the individual photographer. Access to thumbnail images is available to all, while high-resolution images are restricted to those with UC issued passwords.”
5. Duke’s Rare Book, Manuscript, and Special Collections Library Scriptorium
B. Copyright Issues for Digital Image Reserves/Collections
University counsel who are consulted on these projects will find an almost overwhelming amount and variety of images being considered for digitization. Generally, the images will fall into one or more of the following categories:
• Images in the public domain
• Images where the university is the copyright holder either because they fall within the work for hire under the copyright act or copyright has been transferred in writing to the university
• Images taken and donated by the copyright holder like a faculty member (with or without a transfer of the copyright itself)
• Purchased slide or image collections
• Copystand photography ( generally considered to be slides or images copied from or scanned out of a published work, usually by faculty, usually without permission, and often without note of the source work)
In addition to these factors, analysis of any particular work will also need to take into consideration the status of the underlying work being displayed in the image. Is the underlying work in the public domain or also copyrighted? Does the image represent an architectural work, and, if so, was it viewed from a publicly accessible location?
If the slides/images being considered for digitization are part of a purchased collection, are there any license terms that apply? Is the collection available from the vendor in a digitized format?
What is the planned use of the image? Is it for class support only? Is the digital image going to be displayed in a face-to-face classroom setting? (the digitization of the instructor’s single copy under fair use combined with the display exemptions for face-to-face classroom settings found in 110(1) should permit this use.) Or will the display be transmitted in an online setting? If so, it can be incorporated into the online portion of the course pursuant to the Technology, Education, and Copyright Harmonization (TEACH) Act amendments to §110(2), if all the TEACH Act prerequisites are present. In particular, note that to qualify for the TEACH Act exemption, the course website should be accessible only to students registered in the course and the image must be reasonably technologically protected to prevent retention and further dissemination by the student after logging out of the online class session.)
If the TEACH Act requirements cannot be met, can the image be displayed in an online course setting pursuant to fair use? Or online as part of an digital exhibit? Or online as part of a searchable online index of the physical collection in the library or museum? A fair use analysis would be in order and may be strengthened in favor of fair use depending on the size of the image proposed. A recent court decision in Kelly v. Arriba, 336 F.3d 811 (2003) indicates that thumbnail size images are likely to be considered a fair use.
C. Visual Resources Association Guidelines
The Visual Resources Association (VRA) has issued Image Collection Guidelines: The Acquisition and Use of Images in Non-Profit Educational Visual Resources Collections. These guidelines have been referenced and/or adopted by a number of higher education institutions engaged in digital image projects. They represent a reasoned, good-faith approach to digitizing and use of digital images and, best of all, present a workable approach. In particular, with respect to the problematic category of copystand works, these guidelines suggest:
Images created by copystand photography and scanning from published materials for inclusion in the permanent archive are subject to the following considerations:
1. a) images of suitable quality are not readily available at a reasonable cost and in a reasonable time from any of the options listed above
2. b) images will not be shared between or among other educational institutions if such use is prohibited by the terms of their acquisition.
3. c) images will be used for comment, criticism, review, analysis, discussion, or other similar purpose associated with instruction or scholarship
4. d) images will be used for purposes that are both nonprofit and educational.
5. If these conditions can be met, it is likely that making images and digital files from published materials will be within "fair use" as outlined in the Copyright Act of 1976.
Additionally, the VRA has developed a very nice online site/application for use in assessing copyright questions for copystand visual image collections called the Copy Photograph Computator. It provides a “decision making process dealing specifically with images obtained through copy photography or scanning from printed sources, whether the output is intended to produce analog slides for classroom display, or to produce digital image files for a variety of purposes.”
In sum, universities will find, it they haven’t already, that the need for digital images to support instructional activities will be inescapable. Such uses as online instructional digital image collections, searchable online indexes to in-house images, and online museum exhibits will all present unique copyright questions. Purchasing or licensing images may be one option but will not address many of the other scenarios. A well-conceived, comprehensive, and internally consistent approach is required.
IV. Digital Audio Reserves
It should come as no great surprise that university music faculty are very interested in migrating their traditional audio reserves materials into an electronic audio reserves. The benefits to the students are significant and include the opportunity to listen to musical selections at any time, any place, and at their own pace. No longer will they have to fit a visit to the library into their already overloaded schedules and wait for an open booth, especially during peak hours or around exam time.
A. Evolution of Audio Reserves
The development of audio reserves has lagged behind text based e-reserves primarily because of technological limitations. Additional copyright issues surrounding the layers of rights involved in musical works and sound recordings are daunting and, in fact, prompted Indiana University to obtain a National Science Foundation grant several years ago to study, among other things, intellectual property issues and music reserves. Variations2, Indiana University Digital Music Library Project “aims to establish a digital music library testbed system containing music in a variety of formats, involving research and development in the areas of system architecture, metadata standards, component-based application architecture, and network services. This system will be used as a foundation for digital library research in the areas of instruction, usability, human-computer interaction, and intellectual property rights. This project will study and document the complex restrictions in the field of music, identify when works may be used with the limits of fair use or other copyright exceptions, and help specify how technology may be used to satisfy the requirements of copyright restrictions or exceptions.” (http://www.dml.indiana.edu/)
In the meantime, computer technology has advanced. In particular, there is now widespread availability of computers with greater memory capability and faster processing speeds and these are connected to high speed university computer systems and/or DSL lines into the home. But the advent of audio reserves has really evolved because of the development of compression and streaming technology. Some understanding of how these work is important in the copyright analysis. In his recent article, Distant Music: Delivering Audio Over the Internet, Richard Griscom provides a nice summary description of how large music files are compressed and streamed, enabling them to be received by most computers in a reasonable amount of time:
Compression algorithms eliminate redundant and nonessential parts of an audio signal, reducing its size considerably, even to one tenth of the original. “Even after compression, a sound file remains fairly large, which is where streaming technology comes into play. A streaming server delivers the sound file in a series of small pieces, sent over the network at a rate that allows them to arrive in the listener’s computer and sit in a small buffer until needed. After they have been played back, streaming players usually discards the file to make room for more pieces of the sound file. By maintaining this controlled stream of data, the server can deliver large sound files to the listener quickly and efficiently and eliminate the need to wait for the completion of a long download before listening can begin.”
Such advances have contributed to the rise of digital audio reserves that are accessible remotely to students enrolled in the particular class they serve. In fact, digital audio reserves/projects can be found at:
• UCLA: Digital Reserves Listening
• UC Berkeley: Digital Music Network Project
• Johns Hopkins University: Peabody Digital Audio Archive Project
• Penn State University
• University of Virginia
• UC San Diego: Digital Audio Reserve
• University of Arizona (coming fall 2003)
• University of Wisconsin-Madison:
• Columbia University: Music Course Reserves
• University of Tennessee Knoxville
• Emory University
• Bowdoin College: Audio E-Reserve Guidelines
The primary purpose of a digital audio reserves system, intended to support instruction, is to provide better and increased access to the instructional materials by students in a particular course. A secondary or interrelated purpose is the preservation of fragile materials/sound recordings. Indeed, for some digital music projects –especially those connected with specific special collections or rare materials that are deteriorating in their current format- it is a race against time to reformat these materials before they decay beyond use. Particularly in the music arena, preservation and access goals are so intertwined as to be nearly inseparable but can be artificially separated for copyright purposes.
C. Preservation Issues
Can a nonprofit educational institution’s library digitize materials for preservation purposes, under §108 (b) (preservation of unpublished material) or §108(c) (replacement of deteriorating or obsolete published works)?
Section 108 (b) allows qualifying libraries to copy an unpublished work in its collection for preservation purposes and to do so in digital format as long as any such copy or phonorecord that is reproduced in digital format is not otherwise distributed in that format and is not made available to the public in that format outside the premises of the library or archives. At risk unpublished materials could be preserved digitally and the digital copy could be listened to within the physical confines of the library. Remote access to works digitized pursuant to this section would not, however, be authorized.
Section 108(c) also allows qualifying libraries to copy a published work in its collection to replace a work that is damaged, deteriorating, lost, stolen, or 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 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.]
Again, this would restore an item to a library’s collection but it could not circulate in digital format outside the library nor be accessible remotely from outside library premises.
Thus, §108 would appear to be of some use for preservation purposes but not very helpful in terms of remotely accessible digital audio reserves projects. For that, the copyright act offers fair use, the performance exemptions in the TEACH amendments to section 110(2), or obtaining permission from the copyright holder.
D. Relevant Characteristics of Digital Audio Reserves
Audio reserves typically involve a specific, small selection of materials whose use is restricted to a small group of authorized listeners (students enrolled in a particular course). The materials are chosen for a unique educational purpose and are required for a very limited period of time.
With the above described advances in technology, libraries can now stream digital audio reserves materials to any number of authorized students at any time or day of the week. The student can listen as often or as long as it takes to discern the elements or characteristics illustrated by the selected work. For music majors, such accessibility is critically important in their heavily scheduled days of classes, practices, and performances that often do not allow them to easily physically access the music library during its hours of operation.
What is the legal support for digital audio reserves projects that involve commercial sound recordings? Only permissions or fair use. And, again, the critical decision points in the fair use analysis will center around the amount used and whether subsequent use will be allowed. As always, the resulting practice at any particular institution will depend upon its ability to tolerate the inherent uncertainty in a fair use analysis. Many university audio reserves that have discoverable policies do not specifically discuss copyright. All are password protected.
More and more institutions, however, follow theStatement on the Digital Transmission of Electronic Reservesset forth by the Music Library Association (MLA). These guidelines support the use of complete works in digital audio reserves stating that “Music educators cannot effectively teach the structure of a musical work without providing aural access to the complete work. Attempting to comprehend an entire musical composition through excerpts, or even sections, is no more effective than attempting to comprehend a novel, architectural plan, poem, or painting in the same manner. At best, only a sense of style is conveyed, not compositional structure. Additionally, educators who teach the history, culture, theory, composition, or performance of music require the flexibility to select the compositions they teach based on educational relevance and instructional objectives.”
In light of this, the MLA supports placing works on digital audio reserves under the following conditions:
* Access to such digital copies must be through library-controlled equipment and campus-restricted networks.
* Access to digital copies from outside of the campus should be limited to individuals who have been authenticated: namely, students enrolled either in a course or in formal independent study with an instructor in the institution.
* Digital copies should be made only of works that are being taught in the course or study.
* Digital copies may be made of whole movements or whole works.
* Either the institution or the course instructor should own the original that is used to make the digital file. The Library should make a good faith effort to purchase a commercially available copy of anything that is provided by the instructor.
* The library should remove access to the files at the completion of the course.
* The library may store course files for future re-use. This includes the digital copy made from an instructor's original if the library has made a good faith effort to purchase its own copy commercially.
Institutions like Miami University of Ohio have specifically adopted the MLA Guidelines:
“Regarding musical works:
The Miami University Libraries adhere to the principles set forth by the Music Library Association (MLA) regarding the provision of recordings. The MLA's position is that "dubbing or digital copying of musical works for class reserves falls within the spirit of the fair use provision of the copyright law.
The following conditions must be followed:
* Access to musical works will be limited to students enrolled inthe class for which the materials were placed on Reserve.
* Either the institution or the course instructor should own the original that is used to make the digital file.
* At the end of each course, materials will be taken off line to ensure no further access to the materials.
* The Libraries will offer streaming only. The Libraries will not offer downloading.
* The Libraries will not systematically digitize musical works. Materials will be placed on reserve for the sole purpose of educational use at the request of the instructor.”
A final option for music instructors is to incorporate music selections into an online course under the TEACH Act amendments to §110(2). This provision would allow instructors to stream performances of reasonable portions of musical works as an integral part of their course, assuming the other requirements of TEACH are met.
Providing remote online access to digital text, image, and audio materials for instructional purposes to authorized students within the context of a library’s electronic reserves system and/or within the parameters of faculty member’s online course is becoming an indispensable feature of higher education in the 21st century. Universities, in consultation with their legal counsel, need to carefully examine the necessary objectives of their online education efforts and how to achieve the best result for their constituency within the parameters of U.S. copyright law. As creators of tremendous amounts of intellectual property themselves, institutions of higher education need to find an appropriate balance between respecting the intellectual property rights of others while meeting their own educational needs through the responsible exercise of rights and exemptions established under copyright law.
 17 U.S.C. §106.
 17 U.S.C. §108(f)(1)
 See NCSU Libraries Copyright Policy on Reserves
 See legislative history of 1976 Copyright Act, House Report 94-1476
 See generally Loren, Lydia Pallas, Redefining the Market Failure Approach to Fair Use in an Era of Copyright Permission Systems, 5 J. Intell. Prop. L. 1 (1997). See also, Africa, Matthew, the Misuse of Licensing Evidence in Fair Use Analysis: New technologies, New Markets, and the Courts, 88 Calif. L. Rev. 1145 (2000).
 U.S. Constitution, Article I, Section 8.
 17 U.S.C. §107.
 See footnote 5 supra.
 17 U.S.C. §120(a)
 See TEACH Act Basic Checklist at http://library.uncc.edu/copyright/teach/teachbasicchecklist
 See 17 U.S.C. §110 (2)(b)(c)(ii)
 See http://www.vraweb.org/resources/ipr/guidelines.html
 Found at http://www.vraweb.org/resources/ipr/computator/index.html
 Griscom, Richard. "Distant Music: Delivering Audio over the Internet." Notes 59, no. 3 (2003): 521-541