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.
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
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.
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.
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
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
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 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.
- 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
- 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 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
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