Section 108(h) permits a library, archives or a nonprofit educational institution, during the last 20 years of a published work’s term, to reproduce, distribute, display or perform in either facsimile or digital form, a copy of a work for purposes of preservation, scholarship or research.In order to do this, however, the library must by reasonable investigation determine that (1) the work is not subject to normal commercial exploitation, a copy cannot be obtained at a reasonable price or (3) the copyright owner provides notice that either of the above conditions apply according to regulations promulgated by the Register of Copyrights.The exemption provided by this subsection does not apply to any subsequent uses by users other than that library.
 
 

The Copyright Office then developed rules by which owners or their agents could file notice that the published work was subject to normal commercial expectation or could be obtained at a reasonable price.[1]It also developed a form for such notices.[2]The information required on the notice includes:(1)title of the work (or, if untitled, a brief description of the work);(2)author(s) of the work; (3)type of work (for example, music, motion picture, book, photograph or sound recording); (4)edition;(5)year of first publication; (6) year the work first secured federal copyright through publication with notice or registration as an unpublished work; (7) name of the copyright holder; (8) copyright renewal registration number; (9)the person or entity identified who owns the rights; (10)the person or entity that the Copyright Office should contact concerning the Notice; and (11)the person or entity that libraries and archives may contact concerning the work's normal commercial exploitation or availability at a reasonable price.The fee for filing the notice is $50 plus $20 for each additional work.Despite the rule-making activity of the Copyright Office and the posting of forms on its website, not a single notice had been filed by April 20, 2003.

 

     Interestingly, there is little legislative history for this portion of the CTEA.For example, there is no definition of important terms such as “reasonable investigation” or “normal commercial exploitation” although reasonable investigation was defined for § 108(c) in the House Report that accompanied the Act.[3]For this subsection, however, a reasonable investigation would also likely require checking with the Copyright Office to determine whether a publisher or other copyright holder had filed notice.

 

     What works are eligible for reproduction under this section?All works copyrighted in the United States whose authors have been deceased 50 years.Thus, works from 1952 and earlier may be eligible for reproduction under § 108(h).
 

    This subsection is broader than § 108(c) which relates to the replacement of published lost, stolen, damaged, deteriorating or obsolete works,because here reproduction is not solely limited to replacement or preservation.Normally one assumes that preservation involves a work in a library’s collection, but there is no requirement that the work so reproduced under 108(h) currently be in the collection of the library, nonprofit educational institution or archives.Thus, this subsection can serve as a collection building section for scholarship and research in addition to preservation, at least for those works that meet the requirements of (h).

 

Section 108(h) was touted as applying to “orphaned” works where the publisher has disappeared and no one has an interest in further commercial exploitation.On the other hand, with the production of books on demand, even out-of-print works can be produced quickly.[4]Is this normal commercial exploitation price?Also note that § 108(c) uses the term “fair price” as opposed to “reasonable price” found in (h).Is a reasonable price different from a fair price?Or is this just the result of sloppy drafting?
 
 
 

Libraries testified in the Copyright Office rule making proceeding that if a copyright owner cannot make a copy of a work available either directly or through an agent, then the presumption should be that libraries can take advantage of the exemption.[5]“ … It would be a perversion of the exemption if a copy of a work exists only in a library, but the owner, who does not have physical copy, nevertheless declares it is subject to normal commercial exploitation or can be obtained at a reasonable price.”[6]Under § 108(c) the library’s reasonable investigation to determine whether a copy is available at a fair price applies only to unused copies, but § 108(h) is silent as to whether a library or archives must seek even a used copy prior to taking advantage of the exemption.Since the copyright owner receives royalties only on the first sale of a work, the second-hand or resale market provides no away to calculate a “reasonable price.”Library associations stated that, “Only if the owner is actually marketing a work it physically possesses, or recently placed sufficient numbers of copies into commerce, could the owner accurately declare that the statutory test has been met.”[7]
 

Another important difference between § 108(h) and the other preservation sections is that the work may be reproduced in either digital or analog format.Moreover, the subsection does not permit a library to make up to three copies, but instead “a copy.”In all likelihood, a library would be much more likely to produce a digital copy of such a work after it had satisfied the requirements of the section since the work obviously would be of sufficient importance to that library or it would not have engaged in the time-consuming reasonable investigation.The library may even put the reproduced work on the web since there is no restriction that it be used only within the premises of the library.

 

    Why have no publishers filed notice under this section?Are libraries likely to start using this section to ensure that older works are available in libraries across the country?Little is known about how this activity under this subsection will actually operate.It is unlikely there will be additional explanation or amendment of the law concerning this section unless and until it begins to be used by a significant number of libraries.