>Mary Brandt Jensen writes:
>> Trotter Hardy asked for examples where the 76 act treats printed
>> material different than electronic materials or where performance
>> and display are required with electronic materials to reach the
>> functional equivalent of what we can do with print. Lets start
>> with these two.
>>
>> 1. an electronic version of a manual.
>>
>> If I had a paper copy of that manual, I could read it at home, in
>> my office, in the library, in an airport terminal or at a meeting.
>> There is no need to display or perform the manual. But if it is
>> electronic, I have to display it on my screen to read it. And if
>> I am located in a public place (as defined by the copyright law), that
>> is a public display which must be authorized by the copyright law.
>Well, a technical reading of the act might lead to this
>conclusion. I would predict, however, that a court would NOT
>define the use of a laptop to read a book in an airport
>terminal to be a "public display." Surely the act contemplates
>other members of the public seeing--or at least being intended
>to see--the work in question.
I hope it does and I wish I could be sure. That was the position that libraries took in the early years concerning the performance of an audiovisual work or a sound recording in a closed listening room with only one or a very small number of people present. But many attorneys took a different point of view and over the years the line of cases on public performances of audiovisual works, especially the most recent ones including On Command Video, don't bear this out. They take a pretty technical view that it is the character of the place, not who is actually watching that matters.
>>
>> 2. preservation
>> If I have a book in my library that is damaged or deteriorating, I
>> may make a copy of it to preserve it under section 108. If it is
>> an unpublished book, I may even make a copy for deposit in another
>> library before deterioration starts. There is provision for preservation.
>> But the statute
>> specifically says that I must make the copy in facsimile form and
>> the legislative history says that means it cannot be a machine
>> readable form. So how can I make a preservation copy of an electronic
>> work, especially one that is not a computer program?
>The same rationale (deterioration) doesn't apply to electronic
>copies. Congress seems in any event to have provided
If the deterioration rationale does not apply to electronic copies, why then did CONTU recommend a backup right for software? The report indicates that it was specifically because of the fragile nature of electronic storage. Electronic copies do not deteriorate *if and only if* they are constantly refreshed by recopying (which happens to be technically reproduction). The U.S. government has released a number of reports on the fragility of electronic media. If I remember correctly the current life expectancy of CDs is about 20 years and that of magnetic media substantially less without refreshment copying. (I wish I could find the notebook with the early versions of that 40 page article. All these statistics are in the footnotes, but the publisher said it was too long so they are not in the final version.) There is a similar problem with videotape and film. In short, paper (for which we do have preservation rights) turns out to be far less fragile than electronic media for which we don't have preservation rights.
>explicitly for this situation, so it is not really a problem
>that has arisen because of new technology.
I disagree. In the long run machine readable technology is more stable but only because of the capability to make perfect copies, copies which are not necessarily permitted by the copyright act.
Mary Brandt Jensen CNICOPY[_at_]CHARLIE.USD.EDU Professor of Law (605) 677 6363 University of South Dakota (605) 677 6357 faxSchool of Law
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