Re: [ARSCLIST] Libraries, circulation copies and fair use

["Farrington, Jim" <jfarrington@xxxxxxxxxxxxxxxxx>]

Libraries can legally circulate almost anything they want. The exception
would be personal archives for which a contract was drawn up that
specifically excludes items from even being shown, but I'm assuming you
are asking about commercial items bought for the collections. Whether
they choose to circulate items--books, recordings, videos, periodicals,
computer programs, artwork, video games, or any other physical thing--or
not is entirely at the discretion of that library, regardless of its
size or primary clientele. I guess I should also say that I am talking
about original items, not surrogates (the scenarios mentioned below
strike me as being extremely questionable, legally--section 108 of Title
17 covers library exceptions to U.S. copyright laws, whereas section 107
covers individuals).

Jim Farrington
Head of Public Services
Sibley Music Library
Eastman School of Music
27 Gibbs St.
Rochester, NY  14604
585-274-1304    585-274-1380 (f)

-----Original Message-----
From: Association for Recorded Sound Discussion List
[mailto:ARSCLIST@xxxxxxx] On Behalf Of Tom Fine
Sent: Tuesday, January 08, 2008 8:45 AM
To: ARSCLIST@xxxxxxxxxxxxxxxx
Subject: [ARSCLIST] Libraries, circulation copies and fair use

Hi All:

I'm hoping we have some library-policy experts here that can point me to
some answers.

Can a library -- not a big institution or university, just a local
community library -- circulate 
single copies of out-of-print CD's and DVD's they have in their
collections? I did a quick Google 
and couldn't find a definitive answer. I thought Stanford had a
simple-to-understand "yes and no" 
guide to fair for libraries use but I couldn't find it this morning. If
I recall that web page, 
which I read some time ago, it is fair use to take out of circulation
and circulate a single copy of 
an item that is either non-replaceable or replaceable at great cost (ie
out of print).

Further, what about circulating single copies of ALL CD and DVD media
given the proven fragile 
nature of the media? My local library head tells me that she gets DVD
failure reports after 10 or 
fewer circulations in some cases, and most older CD's in the library
system are badly scratched and 
sometimes gouged. Books on CD are bigger problems because some
publishers do limited dupe runs onto 
CDR media and that wears out quickly from typical in-car handling.
Audiobook publishers vary on 
replacement policies, the library lady told me. Some do it for the cost
of postage if you send back 
the damaged disc. Some charge as much as $20 per disc. The librarian
told me that local libraries 
are in a big bind with all of this because printed books are just not
their bread and butter 
anymore. DVD's are a huge circulation item, as are kids' computer
software and games. Music CD's are 
a somewhat popular circulation item. But the big one is audiobooks, she
said.

When I was a kid, if I went to the local library and wanted to borrow a
kiddie-sound thing that was 
on a cassette, the library would run off a copy and circulate the copy
with me. When I brought the 
tape back, they'd put it in a pile to be re-copied with something else
and re-circulated. The 
librarian explained to me that the albums were expensive to replace and
kids had a habit of mangling 
cassette tapes. I'm not sure how strict they were about only having one
copy in circulation but I 
think that requirement may have been tightened up with a law made after
I was a kid. I grew up in a 
town that had plenty of lawyers living in it, so I doubt this procedure
was patently illegal back 
then.

Has the ARSC published any articles previously that bring some clarity
to all of this fair-use 
thing? I think it would be a very helpful resource, one version for
local libraries and small 
circulating collections, one version for big institutions like
university libraries and one version 
of individual collectors (ie do we pose any risk of arrest if we choose
to back up our personal 
collections to hard drive? -- there seem to be many different opinions
on this, from the 
ultra-paranoid to the "what me worry".

-- Tom Fine