There are a couple of provisions in the Copyright Act that may permit you to do this.

First, there is a specific library/archives provision that states that, where a tape has been damaged or has deteriorated, you can make a replacement copy if copies (in any format) are not commercially available.

However, whether or not you can make a CD copy of a tape under the “special case” provision in either of the following situations will depend on a closer analysis of why you want the material on the relevant tape on CD:

• the tape you have is damaged or has deteriorated, and replacement tapes are commercially available, but not CDs; and

• the tape you have is not damaged and has not deteriorated, and CDs are not commercially available.

For example, you may be able to format-shift the copies in cases where a borrower or your library does not have a tape player. In our view, however, you should be wary of relying on the “special case” provision to format shift “just in case” someone wants to borrow items in your collection, and you cannot apply the provision without considering on a tape-by-tape basis whether the provision is available to you.