Microfilming a Current Newspaper? WNYLRC’s Lawyer Comments

WNYLRC’s Ask the Lawyer allows you to email your question to our lawyer for professional, legal help. Every so often, we’ll be posting questions received (with no identifying information from the sender) and our lawyer’s response, for everyone to learn from. Check out this fascinating analysis of copyright with regard to current newspapers.

Member Question

Our local newspaper of record used to microfilm itself (using a third party vendor) for their own use in their private archives. I’m not sure what terms they had with the microfilm vendor, but it was relatively inexpensive for the public library to purchase a copy from the microfilming company for daily use. The newspaper has come under new ownership and longer microfilms itself. My first question is whether I understand 17 U.S.C. §108 correctly. Does paragraph A give libraries the right to make 1 analog copy of pretty much anything they own? Or, in this case, to microfilm the newspapers we have on hand? And does paragraph C give us the right to make up to 3 more microfilm copies, for preservation purposes? It would be our position that newsprint is always deteriorating (we have no climate control storage space to preserve a long run; people steal issues and cut out articles) and after “a reasonable effort” there will be nowhere else from where we can buy a pristine back run “at a fair price”…. Must we enter negotiations with the publisher to secure the right?

WNYLRC Attorney’s Response

A community library’s role in archiving and creating access to local news is critical, but changing technology, uncertainly of ownership, and costs can make the legal aspects of the process uncertain. The member’s questions, set out below, are on the forefront of this issue: how do libraries position themselves to preserve and provide access to published local news?

Section 108 of the Copyright Code was created to balance the rights of copyright owners with the access and preservation of their works, including newspapers. It allows for the copying of sections, whole works—and in some cases, the creation of multiple copies of whole works—by libraries and archives. The first question from our member sets the stage for this issue:

Does Section 108, sub-section (a) give libraries the right to make 1 analog copy of pretty much anything they own?

The answer is to this opening question is: No…Section 108’s application is broad, but it might not apply to your whole collection. The final paragraph (sub-section “i”) of the law contains some big exceptions: musical works, pictorial, graphic, or sculptural works, or films/AV works (excluding news). So, while there are certainly limitations to these limitations (mostly for ADA access, as provided for in other parts fo the law), sub-section (i) means that not “all” parts of a collection may be fully copied.

That being said, exclusive of the exceptions in sub-section (i), under Section 108 (a), ONE copy can be made, so long as the library is open to the public, the copy is not made for commercial gain, and the copyright to the work is attributed—along with a notice that the copy was made per section 108. This is a critical protection for libraries, library staff, and patrons. However, the duplication it allows is balanced with the rights of copyright holders…and a careful read shows it was also drafted by congress to support certain actions in the “market place” (i.e. commercial archiving). This takes us to the next 2 questions.

[Can we] microfilm the newspapers we have on hand?

Answer: Yes. The creation of one copy of a published newspaper falls squarely under sub-section (a).

And does sub-section (c) give us the right to make up to 3 more (microfilm) copies, for preservation purposes?

Sub-section (c) is the section that allows for multiple copies to be made under certain circumstances. Applying the criteria of the sub-section, I regret to say the answer to this is “no.”

Rights under sub-section (c) only apply if the original (or copy of the original) is “damaged, deteriorating, lost, or stolen…”—or if they are embodied on an obsolete format, and that after a reasonable effort, an unused replacement can’t be purchased [a format is “obsolete” “if the machine or device necessary to render perceptible a work stored in that format is no longer manufactured or is no longer reasonably available in the commercial marketplace.”]. This formula is not a good fit with a recently published work.

However, in raising the question, the member raised an interesting and practical argument: It would be our position that newsprint is always deteriorating (we have no climate control storage space to preserve a long run; people steal issues and cut out articles, etc.) and “after a reasonable effort” there will be nowhere else from where we can buy a pristine back run “at a fair price” (ie. for less than the price of striking another microfilm).

For a question like this, it is best to go straight to the source: the Library of Congress circulars. The Circular on section 108 can be found at https://www.copyright.gov/circs/circ21.pdf

In relevant part, it states:

Subsection (c) authorizes the reproduction of a published work duplicated in facsimile form solely for the purpose of replacement of a copy or phonorecord that is damaged, deteriorating, lost or stolen, if the library or archives has, after a reasonable effort, determined that an unused replacement cannot be obtained at a fair price. The scope and nature of a reasonable investigation to determine that an unused replacement cannot be obtained will vary according to the circumstances of a particular situation. It will always require recourse to commonly-known trade sources in the United States, and in the normal situation also to the publisher or other copyright owner (if such owner can be located at the address listed in the copyright registration), or an authorized reproducing service.

As can be seen, the delicate nature of newspapers and library capacity issues non-withstanding, proceeding under sub-section (c) without certainly that there is no commercial alternative does not meet the sub-sections’ requirements. The law is clear: the copies can be made only after the good-faith determination that no commercial alternative exists.

It is cumbersome, but saving a copy of the paper, and then establishing, on a routine basis, that back copies, digital archives, and third-party microfilm versions of the newspaper are not commercially available, meet sub-section (c)’s commercial determination requirements. This is an essential element of the law and cannot be left out, or there will be no infringement defense under sub-section (c).

The final question brings this all home: We really just want to start microfilming 2 copies of the paper…. Can we? Or must we enter negotiations with the publisher to secure the right?

Neither sub-section (a) nor (c) require permission from the copyright holder, so libraries do not need to ask the new owner before using the 108 exceptions as set forth above. However, as the question implies, a library seeking to go beyond what is authorized by the law would need to work with the rights holder. Hopefully, the publisher can see the value in allowing the two copies to be created, and will agree to an irrevocable license to the library, for the benefit of its patrons.

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