I. The Library Exemption - § 108
A. Background of library exemption
1. Impact of the photocopier
2. Scope of library reproduction
II. Section 108(a)
A. Enabling section
1. Written so no royalties due
2. What it takes to qualify for the exemption
B. “Not withstanding the provisions of § 106, it is not
1. “The reproduction or distribution is made without
a. Libraries in for-profit companies
b. Selling copies
2. “The collections of the library or archives are (i)
a. Libraries that easily meet this requirement
b. Can corporate libraries meet?
3. “The reproduction or distribution of the work includes
a notice of copyright that appears on the copy that is
reproduced or includes a legend stating that the work
may be protected by copyright if no such notice
appears on the work.”
a. What is notice?
1. Not ALA stamp "Notice this work may be
protected by copyright."
2. Notice = term of art in copyright law
b. Where is the notice found?
c. How to reproduce the notice?
d. If no notice, use ALA stamp
III. Section 108(b)
A. Preservation generally
1. Two subsections, § 108(b) = unpublished works,
§ 108(c) = published
2. Amended by DMCA in 1998
B. “The rights of reproduction and distribution under this
1. Formerly said "a copy in facsimile form"
2. Purposes = preservation, security or deposit
use in another library
a. Copy = currently in collection
b. Digital reproduction not used outside premises
2. If library makes a digital copy, why two1. Right of first publication
IV. Section 108(c)
A. Published works -- duplication only if first try to
B. “The right of reproduction under this section applies to
1. Purpose = replacement
2. Restriction = after the fact, not just in case
3. Reasonable effort to obtain unused copy at a fair price
a. H.R. 94-1476 defines
1. Recourse to wholesalers, retail bookstores &
2. Contacting the copyright owner or publisher, if
3. Using an authorized reproducing service.
b. What is a fair price?
1. Association of American Publishers
a. Suggested retail price, if available from
b. Prevailing retain price, if not so available.
c. Normal price charged by authorized
2. American Library Association, The Copyright
Primer for Librarians and Educators 27
(2d ed., 1995).
a. Fair price for a work in original format =
latest suggested retail price of unused
b. Fair price of reproduction = price as close
c. If the original format = multivolume &
single volumes are unavailable, it
could be argued full set price is not
fair price for single volume.
4. Replacing small portion of a work
5. Obsolete - "A
format shall be 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.”
C. Digital copy
1. Premises restriction: preservation v. access
V. Section 108(h)
A. Added by CTEA not DMCA but also 1998 (All new)
B. "During the last 20 years of any term of copyright
published work, a library or archives, including a nonprofit
educational institution that functions as such, may
reproduce, distribute, display or perform in facsimile
or digital form a copy or phonorecord of such work, or
portions thereof, for purposes of preservation,
scholarship, or research ..."
1. Author already dead 50 years
2. Three requirements before library can reproduce:
"No reproduction, distribution, display, or performance
is authorized under this subsection if…
(A) The work is subject to normal commercial
(B) A copy or phonorecord of the work can be
obtained at a reasonable price; or
(C) The copyright owner or its agent provides notice
pursuant to regulations promulgated by the
Register of Copyrights that either of the
conditions set forth in subparagraphs (A)
and (B) applies.”
See 37 C.F.R. § 201.39 (2002).
3. “The exemption provided in this subsection does not
apply to any subsequent uses by users other than
such library or archives."
4. Not as restrictive as § 108(b)-(c)
a. Not just for preservation but also for scholarship
b. No requirement that the work already be in library
c. No restriction on premises for digital copy
VI. Section 108(i)
A. “The rights of reproduction and distribution under
section 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 that no such limitation shall apply with
respect to rights granted by subsections (b) and (c), or
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).”
B. Section 108 = predominantly a text section
1. One exception is for preservation under (b)-(c).
2. E.g., damaged single videotape in tape set when
publisher refuses to sell singles
C. Section 108 Study Group
VII. Digital Libraries