I was recently reviewing our Media Library’s preservation policy and was able to reminisce about some concepts currently discussed in section 108 of the United States Copyright Act.

The first portion of section 108(c) allows libraries to make up to three copies of published works or phonorecords for the purposes of replacement if such work is damaged, deteriorating, lost, or stolen. Based on subsequent confusion of this phraseology, the section 108 Study Group recommended amending this statute to allow for the copying of “fragile” materials as well. The Study Group wanted to add the term “fragile” because it is not always apparent when a work is legally considered damaged or deteriorating. Further, by the time a work is damaged or deteriorating, it may be too late to copy such a material without completely damaging it due to its fragile state. The Study Group also recommended amending section 108 to allow for the copying of materials before detectable deterioration is apparent. Although, currently, Congress has not amended this statute in any way, so these are all simply recommendations.

Section 108 also does not offer a detailed explanation of what is “deteriorating or damaged.” However, many libraries including the New York University Libraries adhere to the following principles: to determine what is damaged, or deteriorating, analyze whether an audio-visual item displays visible and/or quantifiable deterioration of the tape or video signal that impairs viewing. For example, if an audio-visual item exhibits noticeable visual dropout, noticeable audio dropout, noticeable repeated disruptions in the video RF signal, color loss or alteration, or other perceivable degradation or distortion of the content; the item may be considered damaged or deteriorating. Many libraries have adopted similar guidelines to help adhere to current 108(c) language.

The later phraseology of section 108 states that an item may also be copied by a library if the existing format in which the work is stored has become obsolete. However, what makes an existing format "obsolete?" A Digital Millennium Copyright Act Report notes that obsolete items are no longer manufactured or not reasonably available in the commercial marketplace. So, if an item cannot be located in a second-hand store, in general, it is not “reasonably available,” and therefore considered obsolete.

Some items that may be considered obsolete consist of: Betamax videotape, S-VHS, LaserDisc, MiniDisc, 8mm videotape… Some items considered currently available consist of VHS, compact audiocassette, Blu-Ray, DVD, LP… For a more exhaustive list of items considered “reasonable available” and not available see the New York University Libraries Video At Risk: Strategies for Preserving Commercial Video Collections in Libraries report.

Currently, it can be tricky to determine what is damaged, deteriorating, or obsolete. However, crafting a policy that guides a library in dealing with these issues, and consistently adhering to said policy can provide assurance and legal protection for the present and future.