Re: use of electronic materials

Mary Writes:

> 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.
> Fair use may apply, but nothing in the law specifically contemplates
> this situation. And as this discussion evolves, I think we will
> find that the law allows us to do many things with the book, that
> it doesn't allow with the electronic version because of performance
> and display rights.

This assumes that a court would construe the word display as defined in Sec. 101 to cover the case where I look at an electronic book on my home computer. A court could easily say that "display" was not intended to reach that action.

And as you correctly point out a court stuck in unnecessary literalism could handle the case under fair use.

> 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 an unpublished book, I may even make a copy for deposit in another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?

Once again a court could easily say that the legislative history was not written with this situation in mind. In short, the Congress did not contemplate archiving machine readable books. Since the section essentially deals with cases of no commercial advantage a court could easily use the existing statute to permit the archiving provided that all the other criteria of Sec. 108 are satisfied.

> I have a lot more examples, but for clarity of discussion, lets
> start with these.

  Don Berman --  

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