When can copies be digital? DMCA & Sec. 108

Dear Forum Members:

The Digital Millennium Copyright Act amends Section 108 of the Copyright Act, "Limitations on exclusive rights: Reproduction by libraries and archives," for the digital age. Now, 108 subsections (b) & (c) for the first time refer to digital copies ("copy or phonorecord that is reproduced in digital format"). Also, the Sonny Bono Copyright Extension Act amends Section 108 (h) with digital language ("in facsimile or digital form a copy or phonorecord").

However, revised "digital" wording is conspicuously absent from subsection (a), the main part of the statute that covers most library copying uses. Under 108 (a), then, does the term "copy" or "copy or phonorecord" refer to digital copies as well as photocopies?

The Copyright Office's Circular 1: Copyright Basics defines copies as "material objects from which a work can be read or visually perceived either directly or with the aid of a machine or device, such as books, manuscripts, sheet music, film, videotape, or microfilm" with no mention of digital media.

By contrast, the American Association of Law Libraries' Guidelines on the Fair Use of Copyrighted Works by Law Libraries specifically addresses many digital copying scenarios (2.1.2 Electronic Copies of Printed Works, 2.1.3 Printed Copies of Digital Works, & 2.1.4 Electronic Copies of Digital Works).

Do library "rights of reproduction" under Section 108 (a) clearly extend to digital works and digital machines or devices like computers, scanners, etc. (of course, assuming license agreements, if any, are observed)?

Steve Smith
Groton Public Schools Copyright Committee Groton, CT
<sb_smith[_at_]sprynet.com> Received on Fri Nov 27 1998 - 02:18:26 GMT