Re: Interlibrary loan for digital objects

On Fri, 3 Apr 1998, Steven Melamut <melamut[_at_]ils.unc.edu> wrote:
>
> With the advent of CCC, Carl Uncover and all of the other services
> offering licensed copies, I think you might be pressing the envelope.
> I think the court in MSD made it clear that license income was a valid
> consideration in the Fair Use balancing examination.

Dear Steve:

As sometimes happens with these things, I'm starting to get lost in the complexity. Is my summary below fair?

1. Title 17 expressly grants a library the right to copy for preservation purposes, providing it cannot find at reasonable cost a second copy in perfect condition. This would include a digitized image of the work.
2. The library may lend its preservation copy, providing it does not make subsequent, permanent copies to do so. Such copying would be subject to the fair use tests. All other parties making copies of the preservation copy would be required to apply fair use tests, and, if such tests indicate the use is not fair, to seek a licence to the work.
3. Open access to a preservation copy, allowing more than one simultaneous user is in effect publishing the work and, of course, an infringement without a licence.

This being so, how does the availabily of licence weigh against the fair use of a library making a copy available, one access at a time, to a preservation digital image, providing that:

1. A copy is not available on the market in non-degradable form
2. Or is not available at a reasonable cost?

A bewildered, newly minted, Electronic Resources Librarian,

Bob Smith

   | Rev. Robert E. Smith           | Email: bob_smith[_at_]ctsfw.edu    |
   | Electronic Resources Librarian | Phone: (219) 452-2123         |
   | Concordia Theo. Seminary       | Ft. Wayne, Indiana            | 
   |                     http://www.ctsfw.edu/                      |