Section 108 & recorded music

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  • This is one that crossed my desk recently ... a patron requested that the library make a copy (in this case a copy to audio CD) of a 1953 musical recording on LP. The work appears to be out of print. Let's assume the work is under copyright.

    Does section 108 prohibit the library from making a copy of a musical recording and giving it to the patron? Note that this is a published work, and the copy would not be for preservation purposes, but would become the property of the patron. Who, incidentally, would like to use it in a conference presentation for a music ed association.

    My reading of subsection i of 108 says that musical works cannot be replicated by the library. Correct to deny this request?
  • Section 108(i) starts with a pretty categorical sounding "no" and then moves on to quite a significant set of exceptions; a very typical statutory structure, really.

    The exception that comes closest to allowing what your patron wants to do is the one that says the "no" in 108(i) does not apply to subsection c of 108.

    Fitting your request into 108(c) however, would be a real stretch. The copy would have to be as a replacement for a work that is in an obsolete format. You would have to determine that no unused version in a more current format is available for purchase. And you could not make the copy available outside of the library's premises in digital format. That latter rule might mean negotiating with the faculty member; would she accept an audio cassette, for instance?

    To me the really interesting question is when and if a vinyl LP should be considered an obsolete format -- a consideration that makes me feel very old indeed. Are turntables still manufactured and/or "reasonable available in the commercial marketplace?" I simply do not know.

    So it is probably correct to deny this request; it would require a great deal of compromise and a little bit of sophistry to fit it into 108(c). But the question itself raises an interesting question about LPs and obsolences.
  • Vinyl is not an obsolete format. There are still outlets which sell recordings in this format and turntables are still available. I checked Best Buy and they carry three different models including one that even plays at 78 rpm!

    My opinion concurs with both of you in denying the request.
  • I question whether vinyl cannot be considered an 'obsolete' format. Turntables are still available, but recordings are no longer made of any type on vinyl and turntables are not something that an average library or user would have, or would buy if the one they had broke. Would a library be expected to buy a turntable to play one item? Like most things in copyright, 'obsolete' is open to interpretation.
  • Actually, section 108(c) contains a fairly clear definition of "obsolete," focused on the equipment necessary to "render perceptible a work" and employing the language I quoted above about manufacture or reasonable commercial availability. So if MKardick is correct that turntables are still available for sale from Best Buys, she is also correct, I think, that we can not consider LPs obsolete -- yet!

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