DRAFT

Proposed Guidelines on Fair Use for the 
Preservation of Library Materials

Prepared for the Use of the Conference on Fair Use of the
Working Group on Intellectual Property of the
Information Infrastructure Task Force

January 19, 1995

Drafted by:

Robert L. Oakley, Director of the Law Library, Georgetown University
Page Miller, Executive Director, National Coordinating 
Committee for the Promotion of History


I.  Preservation in analog formats.

	A.  For purposes of preservation, libraries may make up 
to three copies in facsimile form of a protected work so long as the 
other conditions of sections 108(b) or (c) of the Act are met.  
Facsimile form includes reproduction in analog forms, such as paper or 
microfilm, regardless of the intermediate technology used to create the 
facsimile.

II.  Preservation in digital formats.

	A.  The following guidelines for the use of digital techniques
to preserve and retain library materials apply to protected works that
are more than 10 years old and out of print.  "Out of print" means that
the original work is not available in the marketplace in the original
form of the work, in a microfilm copy, or in a digital image format. 
Works available from a copyright owner or their licensee through a
program for publication on demand are not covered by these guidelines. 

	B.  Libraries may make such digital copies of a work as may be
reasonably necessary for preservation for the purposes and under the
conditions established by sections 108(b) or (c) of the Act. 
"Reasonably necessary" includes those copies needed for regular backup
and maintenance of the digital record.  This section does not include a
right of distribution, whether by means of a copy or by means of
transmission, which is covered by section D, below. 

	C.  Libraries may "refresh" works in digital form, so long as
the library does not thereby retain and use more copies than it
originally acquired.  Refreshing includes both making an exact
replication of the original as well as transferring the digital work to
newer storage media, or updating the electronic storage format for use
by newer operating systems or newer retrieval software. 

Note: it has been suggested that this provision may be more applicable
to large and expensive databases than it is to individual works.  Is
this idea more acceptable when there has been a high level of investment
by the library in the database?

	D.  Libraries may distribute copies of works preserved in
digital or facsimile form in accordance with and subject to the
limitations of the other provisions of section 107 or 108 of the Act. 
If the work is readily available in the marketplace in an original,
facsimile, or digital image format, the library should avoid
distributing the work beyond its own service community in such aggregate
quantities as may substitute for a purchase. 

III.  The following activities appear to go beyond fair use:

	A.  Libraries should seek permission before including works
preserved under section 108 (b) or (c) or these guidelines in a
compilation which is offered for sale or other general distribution. 
.