We have a request from a patron from another state for scans or photocopies of music scores that we own and that are still under copyright. They are rare and only a few libraries have them across the country. The patron does not intend to perform the music, only to study the scores. Is it fair use to copy or scan them for the patron who is writing a doctoral thesis?
Short answer: The proposed copying would not be a permitted, duplication or Fair Use without some additional steps consistent with the four Fair Use factors.
Long answer: This is a great question, as it marries the practical consideration of access with the scary question of a liability for infringement. To answer it, there are a few initial points of priority….
First, it is critical to note that Section 108 (a) of the Copyright Act, which would normally allow for one copy of a work to be provided to fulfill this request, expressly excludes musical works (see Section 108 (i)).
Second: Because of the Section 108 (a) exclusion, it is important to distinguish: while the patron may have a Fair Use defense if they duplicate the work for the purposes of scholarship, the library, in simply making the copy to provide easier access to a remote patron, might not.
Third, as plaintiffs can sue “innocent infringers,” careful steps should be taken to ensure the library could not be viewed as a part of the chain of infringement, if the patron ends up not having a valid Fair Use defense for any copy or derivative work they generate.
Fourth, while this scenario does not state the original copy requires archiving, it sounds as if you have a rare and precious copy, so we’ll draw a bit from the law, case law and guidance covering the protection of deteriorating/rare documents.
And now…how do you enable the proposed access, but keep the library safe? By ensuring 108(c) and the “Fair Use” factors are on your side, whether you send them a scanned copy, or loan a physical copy.
Digital copy
Informed by the latest case law and guidance, the following steps could help claim Fair Use for providing the proposed copy digitally:
Step 1: As the Code of Best Practices for Fair Use in Academic and Research Libraries (www.arl.org/focus-areas/copyright-ip/fair-use/code-of-best-practices) puts it: “Providing [digital] access to published works that are available in unused copies on the commercial market at reasonable prices should be undertaken only with careful consideration, if at all.” It is essential to verify that the works, or a licensed copy, are not commercially available. This is essential for 108(c), too.
Step 2: It is best if the transformation of format is not an ad hoc effort, but rather is part of an effort to promote a special resource of your library. Making the digital copy a part of “special collection”—for instance, of rare music scores—will give you a stronger Fair Use defense.
Step 3: Again from the Code: “The Fair Use case will be stronger when the availability of the material is appropriately publicized to scholars in the field and other persons likely to be especially interested.” In other words, once you have the collection digitized, don’t let it be just that ad hoc project—promote it.
Step 4: Use appropriate technological controls (digital watermarks, etc.) to restrict the access, limit duplication, and ensure proper attribution of materials in the collection. That way, any eventual copying or derivative work generated by the patron is separate and distinct from the access provided by the library.
Step 5: As with any digital collection, make sure the library has an easily found way for people to register privacy or intellectual property concerns related to digital collections.
Physical copy
What if you just want to provide them with a physical copy? Following Section 108(c)’s rules for duplicating deteriorating copies, you can generate a copy for preservation purposes, loaning it to them with the expectation that it will be returned. Just take care that the work is not commercially available, and that the original copy is not available while the preservation copy is out on loan.
[NOTE: 108(c) bars a digital copy made on this basis from leaving your institution.]
Overall
The bar on Section 108 (a) applying to musical works makes this a bit more challenging than the usual duplication request, but with some care, access can be provided.
Further, if the patron wants to make a copy of what your library loans them (either digitally, or in hard copy), if their use is as you describe, they may have their own Fair Use defense. This will mean both the library and the patron can stand on separate, but solid, copyright ground.