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When To Digitize
The TEACH Act specifically authorizes the digitization of print or other works in analog format under the following conditions:
You may only digitize amounts authorized to be performed or displayed under TEACH (§110(2)) if
1. There is no digital version available to the institution; or
2. The digital version that is available to the institution is technologically protected in a manner that prevents its use for §110(2) purposes.
Neither the statute or the legislative history discuss what is meant by the term "available" in this context. Is a digital work "available" if it is unusually expensive or requires agreement to onerous licensing terms? Universities, particularly in the current economic climate, cannot afford to subscribe to or purchase every existing electronic resource. Does it necessarily follow that every digital work is "available" within the meaning of TEACH and, thus, the analog version cannot be digitized?
Long experience with ambiguous terms in the library provisions of the Copyright Act may provide some reasonable guidance in our interpretation of "available". For example, under the library provisions (17 U.S.C. §108), qualifying libraries can reproduce entire works under certain conditions if, after a reasonable search, an unused replacement cannot be found at a "fair" price. This has long been interpreted as a fair and reasonable price given the standard markets and outlets for obtaining the work. Such reasonable evaluations are not beyond the good faith efforts of higher education institutions. TEACH probably does not require the purchase of a digital work for any price under any terms but rather attempts to discourage the wholesale digitization of analog works in lieu of the purchase or license of digital versions. Thus, an exorbitantly expensive work or a work with draconian license terms may well be fairly characterized as "not available". On the other hand, a journal that is available digitally, for a reasonable price and with standard licensing terms, but which the library has not subscribed to may well be "available" and, therefore, unavailable for TEACH digitization.
Remember, however, that even if TEACH does not authorize the digitization, you may still be able to avail yourself of fair use.
The Analog Hole
In the years since the TEACH Act was passed many have questioned whether the second condition (above) permits circumvention of digital protection measures if the only version of the work in existence is digital and technologically protected. As you may know, the Digital Millennium Copyright Act (DMCA) prohibits the circumvention of digital protection measures. Thus, the two provisions would be in conflict.
Most copyright experts have assumed this section simply meant that if, in the case of a movie, for example, you had a VHS version and a protected DVD, TEACH and the DMCA would require/allow only the digitization of the VHS version. But what happens when the day comes, as it surely will, when there is no longer a VHS or "analog" version of the work?
Enter the concept of the "analog hole". The fact is that humans cannot perceive digital media until it is converted to analog format. Only machines perceive the digital format; our senses cannot. Therefore, when you put a dvd into a machine loaded with the necessary and, presumably, lawfully acquired software, the digital media is converted into images and sound that you can understand. At that point, the work is in an analog format and because you have converted it with lawfully acquired software, you have not violated the DMCA.
Once in analog format, the work is unprotected and can be recaptured back into a digital work. The software and know-how is readily available and even built-in to some types of computers (often only clips, but TEACH only allows reasonable portions of performances (audio-visual works) anyway).
This situation is very disturbing to the entertainment industry already fighting pirated versions of their works. They have, and continue to, press Congress for legislation to plug the analog hole.
Additional information on the analog hole: