Libraries and Copyright
There are many legitimate and beneficial purposes for libraries or archives to reproduce copyrighted works without permission of the copyright holder. Subject to certain provisions and limitations, the provisions of section 108 are intended to ensure that nonprofit libraries are protected from certain types of copying liability.
Libraries within the BYU community qualify for the provisions afforded by section 108 because they (1) are open to the public (2) make reproductions for patrons on a nonprofit basis and (3) include notices of copyright with reproduction. If no copyright notice can be found for the work, a statement indicating that the work may be protected by copyright is sufficient, such as, NOTICE: This material may be protected by copyright law (Title 17 U.S. Code).
Section 108 does not permit the making of unlimited copies of a copyrighted work. Instead, with limited exceptions, only “the isolated and unrelated reproduction or distribution of a single copy of the same material on separate occasions” is permitted. Copying by a library or archive is not permitted when the library or archive (1) is “aware” of “related or concerted reproduction or distribution of multiple copies of the same material” or (2) “engages in the systematic reproduction or distribution of single or multiple copies” or of articles or small excerpts of a copyrighted work.
The quantity limitations described in Section 108 (a) of “no more than one copy of a work” are different for the purpose of preservation of unpublished works and for replacement of unobtainable published works. For those purposes, a library or archive is permitted to make a maximum of three copies of a copyrighted work, subject to the other conditions set forth in sections 108(b) and (c).
Works Subject to Library or Archival Copying
Generally, the copying rights provided to libraries and archives under section 108 do not extend to musical, pictorial, graphic, or sculptural works, or to motion pictures or other audiovisual works (except audiovisual works “dealing with the news”). This limitation on section 108 privileges does not apply to copying done to preserve and secure unpublished works or to replace published works, as permitted by sections 108(b) and (c). Such copying is permissible, provided the criteria of those provisions are satisfied, regardless of the form of the copyrighted work.
Similarly, section 108(i) permits copying of illustrations, diagrams, or other “pictorial or graphic works published as . . . adjuncts” to articles or other works that a library is permitted to reproduce upon user request in accordance with sections 108(d) and (e).
Preservation and Security of Unpublished Works
Under section 108(b), a library or archive may make three copies of an unpublished work in its collection “solely for purposes of preservation and security” or “for deposit for research use in another library” if that other library meets the open-collection requirement of section 108(a)(2). A copy that is made in digital format may not be distributed or made available to the public outside the premises of the library or archive.
Replacement of Unobtainable Published Works
Section 108(c) permits a library or archive to make up to three copies of a published work “solely for the purpose of replacement of a copy that is damaged, deteriorating, lost, or stolen, or if the existing format in which the work is stored has become obsolete.” A format is considered obsolete if “the machine or device necessary to render perceptible a work stored in that format is no longer manufactured or is no longer reasonably available in the commercial marketplace.”
Copying for replacement purposes is permissible only if the library or archive has, “after a reasonable effort, determined that an unused replacement cannot be obtained at a fair price.” Although the statute does not explicitly define what constitutes a “reasonable effort” in this regard, this provision is intended to require seeking commonly-known trade sources such as the publisher or other copyright owner or an authorized reproducing service.
Any copy made for these purposes in digital format is not to be distributed or made available to the public outside the premises of the library or archive.
Reproduction of Copyrighted Works at Request of Users
Suppose a researcher desires a copy, for his or her own personal use, of a single scholarly article published in an obscure periodical from a university collection. Is that researcher required to purchase a copy of the periodical or to obtain a license from the copyright holder to reproduce the article? Because there is a practical need for students and researchers to maintain personal copies of such materials, section 108(d) permits a library or archive to copy, at the request of a user, “no more than one article or other contribution to a copyrighted collection or periodical issue, or … a small part of any other copyright work,” if two conditions are satisfied:
- The copy becomes the property of the user, and the library or archives have had no notice that the copy would be used for any purpose other than private study, scholarship, or research; and
- The library or archives display prominently, at the place where orders are accepted, and include on their order forms a warning of copyright in accordance with requirements from the Register of Copyrights.
Reproduction of Entire Copyrighted Works at Request of Users
Another situation frequently faced by patrons is the need for books or other publications that are no longer in print or for manuscripts, letters, and other archival materials that are maintained only in libraries or otherwise are not publicly available. Under section 108(e), a library or archive may copy entire works in response to a user request if it has no notice of non-scholarly use and displays a copyright warning. The library or archive also must have “first determined, on the basis of a reasonable investigation, that a copy of the copyrighted work cannot be obtained at a fair price.”
Unsupervised Copying by Library Users
As long as all reproducing equipment located on library or archive premises displays “a notice that the making of a copy may be subject to the copyright law,” section 108 does not impose liability on either the library or archive or its employees for unsupervised use of that equipment by library users. Nonetheless, section 108 does not clear the user of infringement if the user’s copying exceeds that permitted as fair use under section 107.
Broadcast News Programs
Section 108(f) (3) was intended to protect operations that make copies of news broadcasts available to the public for scholarly research. It states that the provisions of section 108 do not “limit the reproduction and distribution by lending of a limited number of copies and excerpts by a library or archives of an audiovisual news program,” subject to the basic requirements of section 108(a).
Effect of Section 108 on Other Rights and Obligations
The Copyright Act specifically recognizes that there may be some overlap between the “safe harbor” for certain library and archival copying under section 108 and the general limitations on the exclusive rights of copyright embodied in the fair use doctrine, as set forth in section 107. Specifically, section 108(f) (4) provides that nothing in section 108 “in any way affects the right of fair use as provided by section 107.”
Section 108 also does not affect any contractual obligations entered into by a library or archive “when it obtained a copy of a work in its collections.” It is common, for example, for owners of materials such as personal letters and original manuscripts to provide them to a library subject to certain limitations on when or how the materials may be made available for public access, copying or distribution. Sections 107 and 108 would not override any such contractual agreement or grant library users any right of access to such materials that would conflict with the library’s contractual obligation to the copyright owner.
Another area affecting the rights of the copyright owners in the library environment is the acquisition and licensing of digital products, such as databases, e-journals, digital media, and so on. Here again, the provisions of section 108 or any other sections of the copyright law would not, in most cases, override the terms and conditions of the contracts or license agreements governing those products. Library personnel are encouraged to become familiar with the specific conditions and limitations of the license agreements accompanying digital products acquired by the library.
The Copyright Law for Libraries and Archives
Library Copyright Resources
Applying Fair Use in Reserves Systems, Association of Research Libraries, Washington, DC
CONTU Guidelines on Interlibrary Loan, Coalition for Networked Information
Reproduction of Copyrighted Works by Educators and Librarians, U.S. Copyright Office
Analysis of Section 108 by Kenneth Crews (prepared in 2001)
Section 108 “Spinner” Tool from the American Library Association
The Section 108 Study Group convened for three years, and in its 2008 report proposed a variety of changes to the statute. No congressional action has occurred on these proposals, look for any new developments.
VIDEO AT RISK: Strategies for Preserving Commercial Video Collections in Research Libraries
Well-intentioned Practice for Putting Digitized Collections of Unpublished Materials Online, OCLC
Information and checklists for applying copyright in the Library
From the Copyright Advisory Office, Dr. Kenneth D. Crews, Columbia University