Copyright Law & Public Libraries

What is the name of your state?What is the name of your state? Ohio
Can Libraries legally copy Audio CD's to loan out to patrons, keeping the original as a master?
My experience has been that CD's become unusable in a very short time from misuse and improper handling. As a taxpayer and avid library patron, I would like to see some way to alleviate this very large loss.

Can Libraries legally copy Audio CD's to loan out to patrons, keeping the original as a master?

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Good question. The answer is "probably not."

The reason I say "probably" is because this is clearly not allowed under a precise reading of the copyright laws; however, there may be some areas that have been carved out in judicial opions that could potentially allow this activity -- you would have to have someone search the caselaw to find out for sure.

In any event, this is illegal under 17 USC 108:

Sec. 108. - Limitations on exclusive rights: Reproduction by libraries and archives

(a)

Except as otherwise provided in this title and notwithstanding the provisions of section 106, it is not an infringement of copyright for a library or archives, or any of its employees acting within the scope of their employment, to reproduce no more than one copy or phonorecord of a work, except as provided in subsections (b) and (c), or to distribute such copy or phonorecord, under the conditions specified by this section, if -

(1)

the reproduction or distribution is made without any purpose of direct or indirect commercial advantage;

(2)

the collections of the library or archives are

(i)

open to the public, or

(ii)

available not only to researchers affiliated with the library or archives or with the institution of which it is a part, but also to other persons doing research in a specialized field; and

(3)

the reproduction or distribution of the work includes a notice of copyright that appears on the copy or phonorecord that is reproduced under the provisions of this section, or includes a legend stating that the work may be protected by copyright if no such notice can be found on the copy or phonorecord that is reproduced under the provisions of this section.

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That would appear to allow it. But...

(i)

The rights of reproduction and distribution under this section do not apply to a musical work, a pictorial, graphic or sculptural work, or a motion picture or other audiovisual work other than an audiovisual work dealing with news, except that no such limitation shall apply with respect to rights granted by subsections (b) and (c), or with respect to pictorial or graphic works published as illustrations, diagrams, or similar adjuncts to works of which copies are reproduced or distributed in accordance with subsections (d) and (e)

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So, the exceptions above do not apply to "musical works" so your audio CD's wouldn't be able to be copied under this section.

However, like I said above, you might want to have someone do a caselaw search to find out if there are any exceptions in the case law (I don't know of any offhand, but maybe). If you read this statute in it's entirety (you can do so here: http://www4.law.cornell.edu/uscode/17/108.html) you will find that libraries cannot even make archival copies if a reasonably-priced replacement is available; however, under Vault v. Quaid and Diamond v. RIAA (and later under the Audio Home Recording Act, 17 USC 1008), such an archival copy would be allowed. So, it may be worthwhile to see if there is an exception under caselaw somewhere.

But, upon a plain reading of the statute, it would not be allowed.

You could also check with these guys too see if they know for sure: http://www.lib.jmu.edu/Org/MLA/

Copyright Laws and Public Libraries

I should have clarified in my message that I was talking about "Spoken Word Audio CD's".

I should have clarified in my message that I was talking about "Spoken Word Audio CD's".

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Probably not a relevant distinction. Unless the "spoken word" material is newsworthy (a recording of a speech or the like) or in the public domain (like reciting from 'Hamlet' or something), the CD would almost certainly be registered as a "musical work." "Musical Work" doesn't denote anything "musical" -- rather, it is the copyright office's catch-all for audio works that are "nondramatic" (meaning, they don't go along with a play or opera or ballet or the like) and not part of an "audiovisual" work (a movie). If you go and search the copyright office website, www.copyright.gov, and you find that a particular CD doesn't have an underlying copyright on the musical work*, then it may very well fall under the exceptions in 17 USC 108.

The purpose of the exceptions in 17 USC 108 isn't to save the libraries money -- rather, it is to make sure that truely irreplaceable (or very expensive to replace) materials are not lost or irretreviably damages because of copyright laws -- the exceptions are not for mere convenience.

*CD's (or "phonorecords" in copyright parlance) generally have 2 copyrights associated with them -- 1 for the "musical work" and 1 for the "sound recording." A Beatles CD, for example, might have a copyright in Paul McCartney's name, because he wrote the song in question -- that would be the copyright on the underlying "musical work" -- and the record company would own or co-own the copyright on the "recording" of the song -- the sound recording.

If Jessica Simpson later covers that same song, then Sir Paul will STILL ownthe copyright to the underlying musical work (and Ms. Simpson will need a license to cover it), but the copyright on the sound recording in this case would be owned by Jessica's record company.

The point is -- 17 USC 108 makes a blanket exception for making copies without violating the copyright for the "sound recording," but the exceptions do not extend to the copyright in the "musical work."