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Copyright Corner

Copyright and libraries: Section 108 of the U.S. Copyright Act and possible revisions
By Eric S. Slater, Esq., Manager, Copyright, ACS Publications Division

If the content of this month’s article doesn’t garner much attention, surely the title will—especially those first three words. There are many different directions one could take with that title (not to mention several ways leading to potential trouble). My approach is to focus on the library exemptions described in Section 108 of the U.S. Copyright Act and to summarize possible revisions thereof. I do not intend to opine on the topic or the specific issues at hand but merely highlight the key issues, because the U.S. Copyright Office, with the aid of a special Section 108 Study Group, looks to possibly amend Section 108, “specifically in light of the changes produced by the widespread use of digital technologies” (see detailed information at www.loc.gov/section108).

Sections 107 –122 of the U.S. Copyright Act describe the limitations on (or the scope of) exclusive rights, that in some instances, users may make copies of copyrighted works without the explicit permission of copyright owners and with a general protection from liability. Among these sections is Section 108 “Limitations on Exclusive Rights: Reproduction by Libraries and Archives.” In a nutshell, Section 108 permits libraries to make copies of some copyrighted materials in certain limited situations. For a brief description of Section 108, see p 12 in The New & Updated Copyright Primer: A Survival Guide to the Copyrights and Permissions Process (New York: Association of American Publishers, 2000; available for ordering from www.publishers.org/about/primer.cfm).

Section 108 covers two types of exceptions in copying for library users, and copying for the library’s collection. For excellent explanations of these concepts, see www.aaupnet.org/aboutup/issues/Campus_Copyright.pdf. The full text of Section 108 is at www.law.cornell.edu/uscode/html/uscode17/usc_sec_17_00000108----000-.html or www.copyright.gov/title17/chapter01.pdf. I also suggest the easy-to-read Reproduction of Copyrighted Works by Educators and Librarians (www.copyright.gov/circs/circ21.pdf)

Section 108 sets forth the right of libraries or archives to make for a user or patron “single copies” of an article or other contribution to a copyrighted collection or periodical, or a copy of small portions of works; the caveat is that any copy made is for the library patron’s personal use for study or research. Also, in certain limited situations, a library has the right to make a copy of an entire work for a user or patron. These limited situations include when the library determines that a copy cannot be obtained at a fair price, the copy becomes the property of the user, and the copy will be used for private study, scholarship, or research. Bear in mind here that this case should not be confused with “fair use,” described in Section 107 of the Copyright Act. Fair use does not allow users to photocopy entire works under every circumstance but only when the situations set forth in Section 108 apply. Also, the provisions in Section 108 do not preclude libraries from participating in interlibrary loan arrangements.

Section 108 permits libraries and archives to make copies for their own collections under certain circumstances: three copies of unpublished works for preservation purposes and three copies of published works if needed to replace deteriorated, damaged, lost, or stolen copies or if the existing format in which the work is stored has become obsolete. Copies may be digital but cannot be made publicly available outside the library premises. The Section 108 Study Group is looking at this digital limitation, among other things. (Again, please keep in mind that I am providing only a cursory view of Section 108 here.)

The Section 108 Study Group is a select committee of copyright experts, convened by the Library of Congress and charged with updating the U.S. Copyright Act balance between the rights of creators and copyright owners and the needs of libraries and archives for today’s digital world. The group’s web page (www.loc.gov/section108/) contains a great deal of background information, and I highly recommend that readers go there to gain a full and complete understanding of the issues at hand.

The February 15, 2006, Section 108 Study Group: Exceptions for Libraries and Archives: Notice of Public Roundtables with Request for Comments was published in the Federal Register (www.copyright.gov/fedreg/2006/71fr7999.pdf). This document includes the Study Group’s specific areas of inquiry and encourages comments from the public and interested parties. Roundtables are being held in March in Los Angeles and Washington, D.C.

The Study Group’s review has focused primarily on four specific issues:

• eligibility for the Section 108 exceptions;
• amendments to the preservation and replacement exceptions in Subsections 108 (b) and 108(c), including amendments to the three-copy limit, the Subsection 108(c) triggers, the separate treatment of unpublished works, and off-site access restrictions;
• proposal for a new exception to permit the creation of preservation-only/restricted- access copies in limited circumstances (mentioned in the copying for the library’s collection paragraph above);
• and proposal for a new exception to permit capture of websites and other online content.

Space constraints preclude my going into more detail here; I highly recommend review of the Federal Register notice as well as the Section 108 Study Group information found at the U.S. Copyright Office website.

The main purpose in convening the study group is to update Section 108 to reflect recent digital uses of works, much like the enactment of Digital Millennium Copyright Act (DMCA) in 1998—in other words, to bring copyright law into the digital age. It takes time for law to catch up with technology, and this effort is another example of what is involved. With comments from the public and interested parties and the work of the Study Group, the U.S. Copyright Office and Congress should be able to shape the appropriate legislation to meet the needs of the library community and the public at large.

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