AAP Position on Copyright and Scanning

[David Farber <farber () central cis upenn edu>]

Date: Sun, 28 Aug 1994 21:30:07 -0500
From: shaynes () research westlaw com (Steve Haynes)




Dave -


You had previously inquired of copyright implications of your net
distributions.  You will find this interesting, perhaps
informative, of the view of scanning at least from the
perspective of the Association of American Publishers.  It would
appear AAP claims no copyright on this Position Paper, so you
can repost it if you wish!


Steve Haynes


                    An AAP Position Paper on Scanning


Background:


     Technology provides many means to change printed text into
digital form.  This conversion can be done by OCR (Optical
Character Recognition) where the text is ultimately converted
into a manipulable file of characters; or it can be done by
merely depicting the page image in electronic form.  The digital
form of the printed page, whether in characters or page images,
can be fixed in integrated computer storage (hard drive or main
frame), but it can also be stored on other, more portable
electronic media (floppy disk, digital recording devices), or in
temporary forms such as random access memory.  This conversion of
print to digital form, regardless of storage medium, is commonly
referred to as "scanning."  Scanning is clearly an act of
copying, or "reproduction" as that term is used within the
meaning of section 106(1) of the Copyright Act.




General Principles:


     Reproduction is an exclusive right of the copyright holder;
therefore, scanning, a form of reproduction, generally requires
the permission of the copyright holder.  Since the copyright law
already addresses reproduction, no new right is necessary to deal
with scanning.


     The Copyright Law imposes certain limitations on all of the
exclusive rights enumerated in Section 106, but none is a
universal, unqualified or absolute exemption.  Each depends on
specific conditions -- for instance, exemptions relating to
library copying depend, among other things, on the library being
open to the public, the absence of concerted or systematic
copying, and other criteria.  Fair use requires a detailed
examination of at least the four factors noted in the statute.


     In the digital environment, as in other contexts, the
criteria for each exemption must be viewed in light of the
specific attributes of digital reproduction and the effect of the
particular use.  Scanning -- the making of digital "versions" of
conventional text -- is characterized by attributes which make it
particularly susceptible to infringing use.






Distribution and Proliferation


     A primary attribute of digital versions is the ease and
speed with which they can be multiplied and distributed or
transmitted, over networks or otherwise, to great numbers of
recipients.  In addition, this broad dissemination can be
difficult to detect.  It is clear that digital reproduction is a
necessary act in the process of digital distribution of scanned
printed works and cannot be ignored or dismissed as a mere
preliminary, technical or minor act.


Display


     A digital work can be displayed electronically at many
locations.  These locations can be terminals located in the same
room or physical structure as the computer storage device, or at
remote locations in different buildings or at different sites.
This attribute of digitally stored materials calls into play the
additional exclusive right of public display and may divert
revenues from conventional and new markets for the scanned
material.


Manipulation


     A digital version can be easily manipulated in a computer:
content can be deleted, distorted or modified; identifying
materials, information,  and copyright ownership indicia can be
separated from the page or removed.  Manipulation can occur with
both page images and digitized text.  Distribution of the
manipulated version compromises the reliability of the underlying
work, does a disservice to the reader, and damages creators and
copyright owners.


Fidelity and Format


     In the absence of manipulation (and after correction of
errors from initial conversion), digital transmissions and
reproductions of scanned works are the equivalent of the
original, and there are no degradations among subsequent
generations of copies and distributions.  Further, scanned text
may be readily printed out in highly polished and reformatted
presentations, indistinguishable from high quality typeset
presentations, thus competing directly with the originals,
without diminution of quality, content, or appearance.


     For these reasons, copyright owners are greatly concerned
about the conversion of a document into digital form, since the
impact of this practice differs from and goes beyond even the
existing damage from unauthorized photocopying.






The Fair Use Doctrine and Scanning


     Section 107 of the Copyright Act provides that certain uses
of copyrighted works without the permission of the copyright
holder are fair, and makes clear that other uses are not.  It
already provides for consideration of the attributes of digital
works and uses, as they may or may not be present in any
particular case; no modification of Section 107 is necessary.
However, use of scanning technology may, by its very nature,
attributes and consequences (summarized above), result in
widespread infringement of copyrighted materials.  Therefore,
these uses must be watched closely to assure that copyright is
observed and its protections maintained.


     There are certain specific activities using scanning
technology that we believe may commonly be infringing (not fair
use), if undertaken without permission, due to volume, effect,
size and/or scope of amount copied.  These include, but are not
limited to, the following scenarios:


      * The coordination of photocopying and distribution of
copyrighted works among libraries has already resulted in lost
subscription revenue and lost royalty income (royalties that
would be paid for authorized copying).  Unauthorized scanning
can easily increase such losses.


      * A recipient of one copy of a scanned journal article may
redistribute it to multiple users.  This is another use of
scanning technology that is normally infringing, and is
facilitated by the original researcher's ability easily to re-
post the electronic or digital version.  The very ease of this
process allows it to be done without thought or pause for
permission, and without regard for the effect of the use on the
potential market for, or value of, the underlying copyrighted
work.


      * Scanning technology allows the creation of digital
collections and services that function in a very different manner
from a print-based reserve room.  Campus terminal locations could
become sites for a variety of potentially infringing uses in a
digital environment.  Such uses include scanning copyrighted
materials without authorization from copyright owners in order to
store the materials in digital form for printing on-demand by
patrons who visit the library, or for viewing or printing on-
demand at remote locations by students and faculty simultaneously
and sequentially.




The use of terms such as "resource sharing," "collaborative
research," and "electronic reserve rooms" are misnomers.  We are
talking about electronically facilitated activities which in the
absence of permission are often infringements.


Conclusion:


     The AAP recognizes that there are acceptable uses of
scanning technology.  We are concerned, however, that many of the
activities for which scanning is now being used are not among
them, but are instead infringements.  The very attributes of
simplicity, rapidity, fidelity, and breadth of distribution and
display that attract users to scanning are hallmarks of its
potential to devastate the creative works that are the subject of
the scanning.  They are also indicators that scanning of
copyrighted works, if undertaken without permission, is usually
illegal.  For this reason, individuals and organizations using
scanning technology are urged to exercise caution to ensure
respect for the copyright law, and to educate themselves and
their patrons, students, faculty and other users.