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.