Amelioriating the Effects of Term Extension. (Copyright Corner)
Gasaway, Laura, Information Outlook
The Copyright Term Extension Act (CTEA) contains a little-used provision that has the potential to be of tremendous benefit to libraries. The CTEA, effective October 27, 1998, extended the term of copyright from life of the author plus 50 years to life plus 70 years. It expanded the library exemption by adding a new section ([section] 108(h)) to the Copyright Act. The intent of the expansion was to ease the effects of term extension on libraries and archives. In order to meet the requirements of [section] 108(h), a library or archive must satisfy several requirements in addition to qualifying as an eligible entity under [section] 108(a).
Section 108(h) permits a library, archives, or a nonprofit educational institution, during the last 20 years of a published work's term, to reproduce, distribute, display, or perform in either facsimile or digital form, a copy of a work for purposes of preservation, scholarship, or research. In order to do this, however, the library must by reasonable investigation determine that (1) the work is not subject to normal commercial exploitation, (2) a copy cannot be obtained at a reasonable price, or (3) the copyright owner has provided notice that either of the above conditions apply according to regulations promulgated by the Register of Copyrights. The exemption provided by this subsection does not apply to any subsequent uses by users other than that library.
The Copyright Office has developed rules by which owners or their agents can file notice that the published work is subject to normal commercial expectation or can be obtained at a reasonable price. (1) The office also developed a form for such notices. (2) The information required on the form includes (1) title of the work (or, if untitled, a brief description of the work); (2) author(s) of the work; (3) type of work (for example, music, motion picture, book, photograph or sound recording); (4) edition; (5) year of first publication; (6) year the work first secured federal copyright through publication with notice or registration as an unpublished work; (7) name of the copyright holder; (8) copyright renewal registration number; (9) the person or entity identified who owns the rights; (10) the person or entity that the Copyright Office should contact concerning the notice; and (11) the person or entity that libraries and archives may contact concerning the work's normal commercial exploitation or availabilit y at a reasonable price. The fee for filing the notice is $50, plus $20 for each additional work. Despite the rule-making activity of the Copyright Office and the posting of forms on its website, not a single notice had been filed as of April 20, 2003.
Interestingly, there is little legislative history for this section of the CTEA. For example, there is no definition of important terms such as "reasonable investigation" or "normal commercial exploitation," although reasonable investigation was defined for [section] 108(c) in the House Report that accompanied the Act. (3) For this section, however, a reasonable investigation would also likely require checking with the Copyright Office to determine whether a publisher or other copyright holder had filed notice.
What works are eligible for reproduction under this section? All works copyrighted in the United States whose authors have been deceased at least 50 years. Thus, works from 1952 and earlier may be eligible for reproduction under [section] 108(h).
This subsection is broader than [section] 108(c), which relates to the replacement of published lost, stolen, damaged, deteriorating, or obsolete works, because here reproduction is not solely limited to replacement or preservation. Normally, one assumes that preservation involves a work in a library's collection, but there is no requirement that the work so reproduced under [section] 108(h) currently be in the collection of the library, nonprofit educational institution or archives. …