There are no provisions in the Copyright Act that generally allow a school to migrate its collection of commercially produced cassettes into CD format. In some limited circumstances, however, a school may be able to do so.

For example, if a copy of the recording isn’t commercially available, the library provisions in the Act would allow you to make a replacement copy in CD format, but only if a particular cassette had been lost, stolen, or damaged, or if it had deteriorated. Note that you can’t copy just in case one of these things might happen, and that the check for commercial availability would require you to look at whether it is available commercially in any format, not just as a CD.

Secondly, you may be able to copy a cassette to a different format under the “special case”/”flexible dealing” provision in the Act (section 200AB). This may only apply, however, if you can identify that all of the following apply:

• the recording is needed for a particular course or for a specific borrower;

• there is some particular need to have the recording as a CD (for example, because the classroom or the borrower doesnt’ have a tape player, but does have a CD-player); and

• you can’t buy a copy in the format you need.

In our view, you’re more likely to come securely within the scope of the “special case”/”flexible dealing” provision if you keep the copy you’ve made in the new format for as short a time as possible.