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Copyright: Libraries

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:

  • The reproduction or distribution is made without any purpose of direct or indirect commercial advantage;
  • The collections of the library or archives are (i) open to the public, or (ii) available not only to researchers affiliated with the library or archives or with the institution of which it is a part, but also to other persons doing research in a specialized field; and
  • The reproduction or distribution of the work includes a notice of copyright that appears on the copy or phonorecord that is reproduced under the provisions of this section, or includes a legend stating that the work may be protected by copyright if no such notice can be found on the copy or phonorecord that is reproduced under the provisions of this section.

Section 108 spells out parameters for the following legal activities:

Preservation—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 Sections 108(b) and 108(c) allow a library to copy unpublished or published works contained in their collection for the purposes of preservation. Under 108(b), a library can make 3 copies of an unpublished work for preservation or security reasons.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.

Private study— 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:

  • “Notice Warning Concerning Copyright Restrictions

    The copyright law of the United States (title 17, United States Code) governs the making of photocopies or other reproductions of copyrighted material.

    Under certain conditions specified in the law, libraries and archives are authorized to furnish a photocopy or other reproduction. One of these specific conditions is that the photocopy or reproduction is not to be “used for any purpose other than private study, scholarship, or research.” If a user makes a request for, or later uses, a photocopy or reproduction for purposes in excess of “fair use,” that user may be liable for copyright infringement.

    This institution reserves the right to refuse to accept a copying order if, in its judgment, fulfillment of the order would involve violation of copyright law.”

The notice also needs to be designed and displayed according to specific requirements set by the U.S. Copyright Office. The following is the defined formed and manner of use for both a warning displayed at the place where orders are taken and for a warning printed on order forms:

  • A Display Warning of Copyright shall be printed on heavy paper or other durable material in type at least 18 points in size, and shall be displayed prominently, in such manner and location as to be clearly visible, legible, and comprehensible to a casual observer within the immediate vicinity of the place where orders are accepted.
  • An Order Warning of Copyright shall be printed within a box located prominently on the order form itself, either on the front side of the form or immediately adjacent to the space calling for the name or signature of the person using the form. The notice shall be printed in type size no smaller than that used predominantly throughout the form, and in no case shall the type size be smaller than 8 points. The notice shall be printed in such manner as to be clearly legible, comprehensible, and readily apparent to a casual reader of the form.
  • To help with understanding and complying with Sections 108(d) and 108(e) when fulfilling a patrons request for a copy of a work in the library’s collection, check out the Copyright Checklist for Libraries: Providing Copies for Private Study.

Interlibrary Loan (ILL)—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.
Unsupervised copying—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.

Know Your CopyRights Copyright Notice for Unsupervised Copying from OSU Libraries

Columbia University: Unsupervised Copying Equipment

Copyright Notice for Unsupervised Copying from South Central Library System


Limits on materials that can be copied
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).


Resources
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.

U.S. Copyright Office’s Reproduction of Copyrighted Works by Educators and Librarians

Columbia University Libraries Copyright Advisory Office – Libraries and Copyright


 

88x31 Copyright: Libraries
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 web site presents information about copyright law. The LRC make every effort to assure the accuracy of this information but do not offer it as counsel or legal advice. Consult an attorney for advice concerning your specific situation.