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Digitizing Analog Materials
When To Digitize
The TEACH Act specifically authorizes the digitization of print or other works in analog format under the following conditions:
1. You may only digitize amounts authorized to be performed or displayed under section 110(2) as amended by TEACH; and
2. There is no digital version available to the institution; or
3. The digital version that is available to the institution is technologically protected in a manner that prevents its use for section 110(2) purposes.
Neither the statute or the legislative history discuss what is meant by the term "available" in this context. What if a digital work is enormously expensive or comes with onerous licensing terms? Universities and their library and faculty cannot afford to subscribe to or purchse every available electronic resource although they may subscribe to the print. Does that mean that the work is available within the meaning of TEACH and thus cannot be digitized?
The copyright act and long experience with its library provisions may provide some reasonable guidance as we begin our interpretation and implementation of TEACH terms. Under the library provisions (17 U.S.C. 108), qualifying libraries can reproduce entire works under certain conditions if, after a reasonable search, an unused replacement cannot be found at a fair price. This has long been interpreted as a fair and reasonable price given the standard markets and outlets for obtaining the work. Such reasonable evaluations are not beyond the good faith efforts of higher education institutions. TEACH probably does not require the purchase of a digital work for any price under any terms but rather attempts to discourage the wholesale digitization of analog works in lieu of the purchase or license of digital versions. Thus, an exorbitantly expensive work or a work with draconian license terms may well be fairly characterized as "not available." On the other hand, a journal that is also available digitally, for a reasonable price and with standard license terms but which the library has not subscribed may well be "available" and, therefore, unavailable for TEACH digitization.
Remember, however, that even if TEACH does not authorize the digitization, you may still be able to avail yourself of fair use.