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I am wondering about copyright laws pertaining to out-of-print books. I am teaching a class this fall and wish to use a book that is now out-of-print. Should I contact the author for permission?
Many thanks,
Jess

Elizabeth asks what I make of the failure of publishers to file notices that they intend to exploit a work. I think there are a couple of things going on here. First, copyright extension was passed to protect those works that were still commercially viable. Since those works are available in the market, there is no need to file a Notice to Libraries and Archives (NLA) about them. No one really cares about out-of-print works, with or without copyright extension, and hence there is no interest in filing the notices for OP works.

Second, there is some debate about the nastily-worded first clause. A publisher might feel that if they own a copyright in a work, then it is "subject to normal commercial exploitation." After all, the business of publishers is to exploit the copyrights they own. And if a work is "subject to normal commercial exploitation," there is no need to file a notice.

Mary has some good discussion of why this is too broad an argument in her excellent essay on library digitization (at http://www.llrx.com/features/digitization3.htm#Digitize).

The law would make a lot more sense if the three conditions had been connected by an "and" rather than an "or." As the way the law is currently written, I don't see any compelling reason to file an NLA.

One final point. NLA's are pretty hidden on the Copyright Office web site. They are not included in the forms available from the Office, and as far as I can tell, the page I list in the post is not linked from any other page on the web site (except for a NewsNet issue from 1998). Even the Copyright Office seems to recognize that Section 108(h) was a sham, put into the law to as a sop to the library community to make a bad law slightly more palatable. It didn't work.

Have libraries used it? If they have, I haven't heard about it, but that may be because there have been relatively few dates to which the clause applied. Why risk anything at all just to add an extra year? We are up to five extra years now (1923 through 1928); maybe at 10 years, the risk will be worth it. And if anyone complained, I would certainly use the fact that the publishers hadn't filed an NLA as a defense.

This bolsters support for libraries who wish to use (h) to digitize materials in those last dreadful twenty years of copyright. I had checked on this a couple of years ago, when no copyright owners had filed a notice - it's good to have this update.

That is really strange and surprising. What do you make of that? Are publishers just unaware? I don't get it. And how far can libraries take this? Is this a way to get around the public domain dilemma? Ok, last question, what happens if a library digitizes the work and THEN the copyright holder files a notice? Ok, one more, do you know of libraries that have taken advantage of this aspect of 108(h)?

As always, librarylaw blog is super cool.

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