Libraries routinely rely on Section 108, the limitations on exclusive rights specifically for libraries and archives in US Copyright Law, even if librarians don’t always realize that the services they provide, such as ILL, are encompassed in Section 108. Also included in Section 108 are provisions for libraries and archives to make replacement copies of published works in their collections if the work is ‘damaged, deteriorating, lost or stolen, or if the existing format in which the work is stored has become obsolete’. What is obsolete? Well, 108 (c) defines a format as 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.’ For convenience, the text of 108 (c) is below.

For libraries with extensive VHS collections, managing those collections continues to be a challenge as some tapes are deteriorating, fewer (if any) VCRs exist in classrooms, and many faculty and students prefer digital formats. While one answer, if funding is available, is to purchase these VHS titles as DVDs, many VHS titles in library collections aren’t available in any format, which libraries discover when trying to find an unused replacement copy at a fair price.  The challenges of managing these collections is very well documented in the New York University publication Video at Risk: Strategies for Preserving Commercial Video Collections in Libraries, including addressing the question of whether VHS is an obsolete format.

VHS Cassette Tape

By Toby Hudson (Own work) [CC BY-SA 2.5 au (http://creativecommons.org/licenses/by-sa/2.5/au/deed.en)], via Wikimedia Commons

Therefore, when Fortune Magazine announced that Funai Electric will cease producing VCRs at the end of July 2016, librarians naturally wondered if this means that VHS is now an obsolete format. Since DVD/VCR players are still readily available in the marketplace, from a variety of manufacturers, the declaration that VHS is obsolete is a bit premature, but all indications are that VCRs will cease to be profitable to produce in the near future. However, obsolescence isn’t the only reason under Section 108 to create a replacement copy of a VHS tape. Works which are damaged or deteriorating also qualify.  Unlike obsolescence, determining whether a VHS tape is damaged or deteriorating is not defined in this section of US Copyright Law, and relies on the expertise of librarians to determine if a VHS tape is damaged or deteriorating.

While we may not yet be able to declare VHS tapes obsolete under the definition in Section 108 of US Copyright Law, there are many other ways for libraries to effectively manage their unique and aging VHS collections.  If you have not yet read it, I highly recommend the NYU publication Video at Risk as a guide to understanding and effectively implementing Section 108 (c) for video collections.  In addition, depending on the use of the content on the VHS tape, a good fair use argument could be made.  As one example, in the dismissal on the grounds of standing of the alleged infringement case AIME v. UCLA, the judge gave an overview of how UCLA’s streaming of video to students in a class for educational purposes could be a fair use.  Since the case was dismissed, the judge’s analysis is informative but does not set precedent.  For an overview of the case, see fellow blogger Kevin Smith’s post ‘Another fair use victory for libraries‘ from 2012.  Of course, any fair use analysis needs to take into account multiple factors, including any licenses for the content. Librarians should take advantage of all of the tools at their disposal, analyzing both Section 108, Section 107 and scope of licenses, if any, to best serve the needs of users and preserve these VHS collections.

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

(c) The right of reproduction under this section applies to three copies or phonorecords of a published work duplicated solely for the purpose of replacement of a copy or phonorecord that is damaged, deteriorating, lost, or stolen, or if the existing format in which the work is stored has become obsolete, if—
(1) the library or archives has, after a reasonable effort, determined that an unused replacement cannot be obtained at a fair price; and
(2) any such copy or phonorecord that is reproduced in digital format is not made available to the public in that format outside the premises of the library or archives in lawful possession of such copy.
For purposes of this subsection, a format shall be considered 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.

Lisa Macklin

Lisa A. Macklin is Director, Scholarly Communications Office at Emory University’s Library and Information Technology Services. As both a librarian and lawyer, Lisa spends her days navigating copyright and making the intellectual output of Emory openly accessible.

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