Section 108 - Limitations on exclusive rights: Reproduction by libraries and archives
Libraries are some of the largest users of copyrighted materials in the U.S. In order to accomplish their mission of providing access to information, libraries rely upon a number of exceptions to U.S. Copyright law. For example, Section 109 allows libraries to loan the items in their collections to patrons. Libraries can also rely upon Section 107, Fair Use, in order to accomplish some of their goals.
Copyright law includes one exception that is specifically designed to allow certain common copying activities by libraries and archives. Section 108 of the Copyright Act specifies a number of situations in which libraries can legally copy items in their collections under certain circumstances.
In order to rely on Section 108, a library or archive needs to meet the following criteria:
Library materials do not last forever. In order to continue to provide access to some materials, it may be necessary for the library to make copies in order to protect the original works. Sections 108(b) and 108(c) allow a library to copy unpublished or published works contained in their collection for the purposes of preservation. Under 108(b), a library can make 3 copies of an unpublished work for preservation or security reasons. Under 108(c), a library can make 3 copies for the purpose of preservation of a published work in its collection that is damaged, deteriorating, lost, stolen, or in an obsolete format. In order to use Section 108(c), the library must first determine that an unused replacement copy is not available at a fair price. The library can make digital copies under both Sections 108(b) and 108(c), but any digital copies cannot be made available to patrons outside the premises of the library.
Before copying materials under Sections 108(b) or 108(c), check out the Copyright Checklist for Libraries: Copies for Preservation or Replacement.
Libraries are often asked to provide copies of materials in their collections to patrons for the purposes of independent research and scholarship. Under Section 108(d) and 108(e), libraries can legally provide a single copy of materials to patrons under certain circumstances. 108(d) allows for the copying of a single article from a journal or of a small portion of a book as long as the copy becomes the property of the patron, the library has no knowledge that it will be used for infringement and the article contains a warning of copyright protection. Libraries can also make a single copy of an entire journal issue or book under Section 108(e). In order to do so, the library needs to follow the same steps listed above for 108(d), as well as determine that the item is not available for sale at a reasonable price.
When taking orders for copying under 108(d) and 108(e), a library needs to provide a notice of copyright protection. This notice has to follow the precise language that is set by the U.S. Copyright Office. The notice needs to be displayed at the place where in-person orders are taken, or placed directly on order forms. The language for the required warning is as follows:
A single library cannot have every item in its collection that patrons may want to use. In order to provide access to materials not owned by the library, it will often request a copy from another library through Interlibrary Loan. In some cases the lending library needs to be able to copy an item from the collection rather than sending the original. Section 108(g) allows for this type of copying under certain circumstances. For a detailed look at the rules for copying for ILL, see the University Of Texas’ Copyright Crash Course, which includes a link to the CONTU Guidelines for ILL which have been practiced by libraries for decades.
Not all copying performed in the library is done by library staff. Patrons often copy materials themselves for personal use. Libraries offer the use of equipment such as copying machines, scanners, computers and printers, all of which are considered copying devices. Section 108(f) gives libraries the ability to provide these copying devices without liability for any infringement that may be committed by the patrons. The library simply needs to place a copyright warning on the devices. Below are links to three variations of notice that a library can use.
According to 108(i), there are limits on the types of materials that can be copied under some of the subsections of 108. The rights of reproduction and distribution under 108 do not apply to a musical work, a pictorial, graphic or sculptural work or a motion picture or other audiovisual work other than an audiovisual work dealing with news, except under subsections (b) and (c). These limits also do not apply with respect to pictorial or graphic works published as illustrations, diagrams or similar adjuncts to works of which copies are reproduced or distributed in accordance with subsections (d) and (e).
There are a number of online resources that can help you further understand Section 108. Besides the links above, you can find more information at the resources below.Columbia University Libraries Copyright Advisory Office – Libraries and Copyright
This work is licensed under a Creative Commons Attribution-NonCommercial 3.0 Unported License. Information contained in the following webpages has been adapted from the Copyright Resources Center at The Ohio State University Libraries and the University of Minnesota Libraries.
This website presents information about copyright law. The LRC make every effort to assure the accuracy of this information but does not offer it as counsel or legal advice. Consult an attorney for advice concerning your specific situation.
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