# The Librarian's Copyright Companion/Chapter 5

Chapter Five
The Library Exemption (Section 108)
In addition to fair use, libraries and archives have certain rights to use copyrighted works without permission under section 108 of the Copyright Act. As we discussed in Chapter One, copyright law balances the rights of creators and users of information, with the ultimate goal of disseminating and promoting knowledge. Because libraries and archives play a special role in this goal, section 108 gives them certain privileges not afforded to other users.
Section 108 is in some ways a flawed and outdated piece of legislation. Some of its provisions are unclear, and changes in technology have added to the confusion. In 2004, the Copyright Office and the Library of Congress convened a study group to suggest ways of improving section 108. The study group released its report in March 2008, in which it recommended substantial changes to the section, but Congress has taken no action to implement the recommendations.
Section 108 has several subsections which address various library activities. We’ll discuss each in turn, starting with subsection (a), which sets forth some general requirements that apply to exempted copying by libraries and archives. Other subsections set forth further rights and restrictions that vary depending on the purpose of the copying and the material being copied.
5.1. Section 108(a) The Library Exemption
A library or employee acting within the scope of employment:
* One copy
* No direct or indirect commercial advantage
* Open or available collection
* Personal access or interlibrary loan
* Copyright notice
** from the copy reproduced, or
** legend
Qualifying for the Exemption (Section 108(a))
Nowhere in the Copyright Act are the key terms library or archives defined. Some institutions are unquestionably libraries or archives under the everyday meaning of those terms. But for other entities, such as archives that exist only online, the application of section 108 is unclear.
Section 108(a) does make it clear that not every instance of copying by libraries qualifies for the 108 exemption. To qualify for the library exemption:
* the library or archives’ collection must be open to the public or to researchers;
* copying or distribution must be made without any purpose of direct or indirect commercial advantage; and
* the copy must include a notice of copyright.
Each of these requirements merits discussion.
Open or Available Collection
Here’s the language from 108(a):
The exemption is not limited to “public” libraries. Permitting visitors to use the collection, or participating in interlibrary loan arrangements under which a library makes its collection available to others, will meet the “open or available” requirement. This means that libraries whose doors are not wide open, such as corporations and law firms, many governmental and trade association libraries, and private college and university libraries, may qualify for the section 108 exemptions.
No Direct or Indirect Commercial Advantage—As Applied to Libraries in the For-Profit Sector
Again, here’s the language from 108(a):
… the reproduction or distribution must be made without any purpose of direct or indirect commercial advantage.
The Senate and House committees considering the proposed legislation had different interpretations of this requirement. The Senate Judiciary Committee wrote that this clause prohibited libraries in the for-profit sector from providing copies to their employees unless the copying qualified as a fair use or the organization received permission. The House Judiciary Committee had a different opinion. It wrote that “the ‘advantage’ referred to in this clause must attach to the immediate commercial motivation behind the reproduction or distribution itself, rather than to the ultimate profit-making motivation of the enterprise in which the library is located.” Unlike the Senate, the House believed that libraries in the for-profit sector could qualify for the library exemption when making copies for company employees. It wrote
The House Judiciary Committee’s interpretation was supported by the Conference Committee, which was composed of members of both the House and the Senate. The Conference Committee concluded
Another point of interpretation involves the meaning of “indirect commercial advantage,” as used in section 108(a)(1), in the case of libraries or archival collection within industrial, profit-making, or proprietary institutions. As long as the library or archives meets the criteria in section 108(a) and the other requirements of the section, including the prohibitions against multiple and systematic copying in subsection (g), the conferees consider that isolated, spontaneous making of single photocopies by a library or archives in a for-profit organization without any commercial motivation, or participation by such a library or archives in interlibrary arrangements, would come within the scope of section 108.
The Bottom Line: Libraries affiliated with for-profit organizations may qualify for the library exemption. But all libraries—those in for- and non-profit institutions—must avoid the section 108(g) prohibitions against multiple and systematic copying, discussed below.
​No Direct or Indirect Commercial Advantage—As Applied to Fee-Based Document Delivery The direct or indirect commercial advantage prohibition means that a library loses section 108 protection if it profits from its document delivery service. The first step, then, is comparing how much it costs your library to make a copy with how much you charge. You may go beyond the obvious costs of paper and toner, and include all direct and indirect costs, such as equipment, supplies, and personnel.
An Association of Research Libraries (ARL) study from the late 1990s may help you determine if you are within this mandate. In its report, the ARL noted that it cost research libraries, on average, $18.35 to borrow an item, and $9.48 to lend an item (the average cost for all libraries was $12.02 to borrow and $7.25 to lend). Costs obviously vary from one library to the next, and presumably are higher today.
We can hear some librarians saying, “We’re not making money on document delivery; the revenue we receive just enables us to enhance our collection.” Stop! If your document delivery activities enable you to “enhance your collection,” you are either making money from document delivery (which you cannot do), or you are not counting all of your expenses (which indeed may be the case).
There is no definitive answer as to how much you may charge, but for some guidance, we offer these university library document delivery hypotheticals.
Example 1 Freedonia State College has a base document delivery transaction charge of $5.00, plus $.25 per page.
    Comment: Freedonia State, then, charges $7.50 for a 10-page article, and $10.00 for a 20-page article. We doubt that the college is making any money from its document delivery services.
The University of Freedonia charges $5.00 plus $.50 per page.
    Comment: If UF has determined that it costs $10 to supply a 10-page article and $15 to supply a 20-page article, it does not violate the “direct or indirect advantage” prohibition.
Example 3 The library at the Freedonia School of Medicine charges non-profit institutions $10 per article, and for-profit institutions $20.
Comment: Again, if this merely recovers actual costs, the pricing structure is fine. The library may choose to subsidize document delivery to the non-profit sector, but it cannot profit from its services to the for-profit sector.
Example 4 The University of Freedonia Law Library has a minimum copying charge of $15 for individuals and non-profit institutions, and $20 for businesses. To that it adds a $.50 per-page photocopying charge. For business requests it also adds a $1 per-minute labor fee, with a minimum labor charge of $15.00. In other words, a ten-page article costs a business at least $40.00.
    Comment: The law library’s charges certainly appear to be beyond what is permitted under section 108. This does not mean that the library cannot provide document delivery services. It may, but it must pay royalties. The library would be wise to register with the Copyright Clearance Center and pay royalty fees to the CCC.
Example 5
Comment: This certainly looks and smells like a business, even though it operates out of a state-supported university. It is appropriate for FIT-DOC to pay royalties and belong to the CCC.
Notice of Copyright
5.2. Section 401(b) Notice of Copyright
Notice Requirements
* © or Copyright or COPR.
* Date of first publication
* Name of copyright owner
* Stamp:
“This Material Is Subject to the United States Copyright Law; Further Reproduction in Violation of That Law Is Prohibited.”
The third and final requirement imposed by subsection (a) is the copyright notice requirement:
…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.
First, understand that you may not always be able to find a formal copyright notice. The United States joined the Berne Convention in 1989, and works first published on or after March 1 of that year do not need the notice to be copyrighted. If a work qualifies for protection, it is copyrighted when it is created, whether or not it has the formal notice.
When you copy journal articles and the article itself includes a copyright notice, include it. If you are lucky, the copyright notice will appear on the first page of the article, either right after the author’s name or perhaps as a footnote. Unfortunately, many journal publishers do not include a ​copyright notice with each specific article, but instead only a general notice at the beginning of the issue, or elsewhere.
Finding the notice may not be easy. The U.S. Copyright Office lists ten places where a copyright notice may appear in a book, and an additional three places for periodical issues. Looking for the copyright notice is like being At the Circus. Make a diligent search for the formal notice, but do not make yourself crazy trying to find it.
If you cannot readily locate the formal copyright notice, stamp the article: “This Material Is Subject to the U.S. Copyright Law; Further Reproduction in Violation of That Law Is Prohibited.” In fact, you should use the stamp every time your library makes a copy under the section 108 exemption. Here is what you should do:
* Prepare this notice in large (13-point) type;
* Put a box around it so it looks like this:
This Material Is Subject to the U.S. Copyright Law; Further Reproduction in Violation of That Law Is Prohibited
* Send this to a stamp company and ask them to make you a stamp (in fact, make an extra stamp);
* Purchase a red ink pad and extra red ink;
* Whenever you make a copy—even when you do include the formal copyright notice—stamp the copy in the upper right hand corner.
What about chapters from books? Whenever you copy a book chapter, look for the formal notice. It usually appears on the verso of the title page (although as you read above, Copyright Office regulations permit an Easter egg-like hunt). You should include the copyright notice with the copy you are making. Also include the title page from the book, as it indicates where the chapter came from.
If a book consists of a variety of chapters written by different authors, it is a collective work, and each author may have copyright in his or her own chapter. The Copyright Office notes that a single notice applicable to the entire collective work indicates copyright protection for all of the ​contributions, regardless of who owns copyright in each separate contribution. Therefore, treat all books the same: When you copy a chapter, also copy the title page and the general copyright notice. And use the red stamp, too.
As for journals, although the publisher typically has copyright in each issue as a collective work, the authors have copyright in their articles unless they signed those rights away. Although many publishers do in fact require authors to transfer copyright to them, do not assume that the publisher of a journal holds copyright in the articles.
What about digital information? If you want to make a paper copy of a document that you find on a computer, look for the copyright notice on the screen, just as you would if the article was in print. If you find the notice, copy it, too. And use the red stamp.
If you electronically forward the digital article to someone, in your introductory e-mail message include the “This Material Is Subject to the U.S. Copyright Law; Further Reproduction in Violation of That Law Is Prohibited” notice. It will be easy to include this notice on a generic “Here is the article you requested” e-mail message that you send to everyone who requests copies.
The Bottom Lines on section 108(a):
* The copying or distribution must be done with no purpose of direct or indirect commercial advantage. You may not profit, but you may recoup your costs. These may include costs of staff time, equipment, supplies, and delivery.
* The library collection must be open to the public or available to researchers in a specialized field. Your library qualifies if it offers in-person access to the collection, or if you make your collection available through interlibrary lending. A library need not be open to the general public to fulfill this requirement.
* Include a notice of copyright on all copies provided, or a legend that the work may be protected. You will not always be able to find the statutory notice on the work copied. Whether you find the formal notice or not, use the “This Material Is Subject to the U.S. Copyright Law; Further Reproduction in Violation of That Law Is Prohibited” stamp (red, 13-point typeface, upper-right-hand corner of the first page of each document copied). Stamp … Stamp … Stamp … ​Copying Unpublished Works (Section 108(b))
5.3. Section 108(b) Copying Entire Unpublished Works
* Three copies
* For preservation and security, or for deposit for research use in another § 108(a) library
If
* The work is owned by the library asked to make the copy, and
* The digital version is used internally
Section 108(b) permits a library to reproduce an unpublished work for the purpose of preservation and security, or for deposit for research use in another library, if the library making the reproduction owns a copy of the work. The three copies may be in any format, including digital. But a Congressional committee expressed concern that “uncontrolled public access to the copies or phonorecords in digital formats could substantially harm the interests of the copyright owner by facilitating immediate, flawless and widespread reproduction and distribution of additional copies or phonorecords of the work.” To address this concern, Congress included some restrictions regarding further distribution of digital copies and where digital copies may be accessed.
Under section 108(b)(2), copies reproduced in digital format may not be “otherwise distributed in that format,” nor “made available to the public in that format outside the premises of the library or archives.” The provision prohibiting further distribution in digital format might seem to preclude a library that owns an unpublished work from sending a digital copy to another library for research purposes. The legislative history, however, indicates otherwise. The Senate Judiciary Committee wrote that
It seems pretty clear that a library that owns a copy of an unpublished work may make an analog or a digital copy “for deposit for research use in another library.”
The language mandating that digital copies may be used only within the library premises seems less ambiguous. A library that has made or received a digital copy of an unpublished work under 108(b) apparently may not make it available in that format to the public outside the premises. A library patron may use a digital copy onsite, but the library should not send a digital copy to an individual, nor permit access to a digital version outside the walls of the library.
If a library receives a copy of an unpublished work under 108(b), may a researcher copy the work? The answer depends on the results of a section 107 analysis. Whether a use is a “fair use” depends on the facts, so the answer is a definite “maybe.” There probably is less room to copy an entire unpublished work than there is to copy a published work, but section 107 itself says that “the fact that a work is unpublished shall not itself bar a finding of fair use if such a finding is made upon consideration of all the ​above factors.” And in some cases, a library may copy an entire unpublished work for a patron under section 108(e), which is discussed later in this chapter.
The Bottom Line: A library may copy an unpublished work it already owns for preservation and security. The library may make up to three digital copies of the work, but the digital copies may only be used on-site. A library that owns an unpublished work may send a digital copy to another section 108 library. A library that receives a digital copy under 108(b) for research use similarly must limit access to the digital copy to within the library’s walls.
Replacing Lost, Stolen, Damaged, or Deteriorating Copies of Published Works (Section 108(c))
5.4. Section 108(c) Copying Entire Published Works
* Three copies
* To replace a damaged, deteriorating, lost or stolen copy, or
* Obsolete format
If
* Unused replacement unobtainable at a fair price
* Digital version is used internally
Section 108(c) permits a library, under some circumstances, to replace a lost, stolen, damaged, or deteriorating copy of a published work by copying, if after reasonable efforts it determines that an unused replacement cannot be obtained at a fair price. As with section 108(b), the copy can be ​in any format, including digital, but digital copies may be used only within the library premises.
Before a library may make a copy under section 108(c) it must have made a reasonable effort to acquire an unused replacement copy, and must not have been able to find such a copy at a fair price. The legislative history notes that a reasonable effort varies according to the circumstances, but that a library should contact commonly-known trade sources such as dealers and jobbers, and generally the publisher or other copyright owner. You do not need to contact used book dealers; you must only determine that you cannot get an unused copy at a fair price.
What is a fair price? In 1983, the Register of Copyrights wrote that a fair price for a book or periodical is that which is charged by a publisher, a dealer specializing in remainders, or a jobber or dealer in bulk issues of periodicals, but not if the only unused copies are available at high prices from rare or antique dealers. The Register’s statement makes more sense for books than for journals when you consider the following scenarios.
Example 1. The Case of the Missing Issue You are ready to bind the six issues from a scholarly journal, and discover that the July/August issue is missing. The subscription price was $40 for six issues, or about $7.00 per issue.
    Comment. If the publisher or jobber charges $10 to $15 to replace the July/August issue, the price seems fair. If it costs $20 or more to replace one issue, you might conclude that it is not. (Of course if you consider what it costs two libraries to request, reproduce, receive, and do the bookkeeping for an ILL request, it makes sense to just buy the issue.)
Example 2. The Case of the Missing Article Someone cut out one article from the same journal. Each of the six issues has eight to ten articles. In other words, you “lost” about 2% of the volume.
    Comment: If it will cost $15 to $20 to replace the issue in which the article appeared, or $10 just for a reprint of the article, you may conclude that the price is not fair and ask another library to copy the article for you under section 108(c).
Example 3. Sound Recordings Your library has a collection of 78 r.p.m. blues records from artists like John Lee Hooker and Elmore James, but only one ancient record player.
    Comment: Under section 108(c), if you cannot acquire at a reasonable price a record player that plays 78s, you can copy the records onto a different format. This does not end the inquiry, however. If you can buy the recordings in a different format—if they are available on CD, for example—then you should do so and not make a copy.
Example 4. Videos Your library has some old videos in Betamax format and you no longer have Betamax equipment.
    Comment: If you cannot purchase Betamax equipment at a reasonable price, you can copy the videos onto a different format unless, as in Example 2, you can purchase a video in a “current” format such as DVD.
The Bottom Line: If at a reasonable price a library can buy the equipment that enables it to play its old format “stuff,” or if it can buy the old “stuff” in a current format, it should. If the library cannot do either, then it may make a copy under 108(c). ​Articles or Excerpts for Users (Section 108(d))
5.5 Section 108(d) Articles and Excerpts
* Single copy
* Becomes user’s property
* No notice of impermissible purpose
* Warning of copyright
** where orders are accepted
** on order form
Most section 108 copying by libraries takes place under subsection (d). Section 108(d) permits a library to make a single copy of an article, or of another contribution to a collection or periodical issue such as a book chapter, for a patron. It also permits library-to-library copying to fill a patron’s request—what we call interlibrary loan, or perhaps more appropriately, document delivery. Section 108(d) has four conditions.
First, you can only make one copy. What if the requestor asks for two copies, one to read and mark up, and one for her files? Follow Nancy Reagan’s advice, and just say no.
Second, the copy must become the property of the user. You may not add it to the library’s collection. Say, for example, that African explorer Jeffrey T. Spaulding is hired to teach courses at your university. Professor Spaulding asks a reference librarian for an article from the Ghana Journal of Science, and also one from JASSA: Journal of Applied Science in Southern Africa, neither of which the library owns. The reference librarian asks the ILL librarian to get copies of the two articles from another library. The professor really likes one of the articles. He gives it back to the reference librarian and asks her to add it to the library’s collection. Just say no.
​Third, the library must have no notice that the use will be for a purpose other than private study, scholarship, or research. Congress did not explain what this means, but it is reasonable to conclude that a library may do for a library patron what that person could do for him or herself as a fair use. You may decide—wisely, we think—that your library will not make copies for fee-based information brokers. Information brokers do not request copies for “private study, scholarship, or research.” To the contrary, they are in the business of supplying copies to others. Even if the information broker says “We will pay royalties,” it is your library that is making the copy. If you feel more comfortable not offering document delivery services to fee-based information brokers—and that is how we feel—just say no.
The final condition under 108(d) requires the library to display prominently at the place orders are accepted, and include on its order forms, a warning of copyright as prescribed by the Register of Copyrights. Here is what you have to do: (1) Copy the warning below and tape it near the door of the office where people request copies; (2) include the warning on the form people fill out when they ask for copies; and (3) for electronic ILL requests, include the warning on your electronic ILL form.
Section 108(d) Warning Copyright Restrictions
The copyright law of the United States (Title 17, United States Code) governs the making of photocopies or other reproduction 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 specified 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.
          Source: 37 C.F.R. § 201.14
Because there are many copyright pitfalls when it comes to ILL and document delivery, we’ve prepared some guidelines to help you navigate this difficult terrain. But first, let’s discuss what publishers and the courts have to say.
The publishing industry has weighed in on document delivery and ILL. As one would expect, they take a restrictive view of these practices. The Association of American Publishers has written that the activities of “fee-based and technology-enhanced copying and distribution services of libraries … are indistinguishable in purpose and effect from those of commercial document delivery suppliers.” We don’t agree. Nothing in section 108 bars a library from charging fees to recover the cost of document delivery and interlibrary loan. Section 108 merely excludes commercial activity. A commercial document delivery supplier is indeed distinguishable from a library engaged in nonprofit, fee-based interlibrary loan and document delivery services.
The AAP’s statement seems modest compared to the document delivery guidelines released in 2011 by the International Association of Scientific, Technical & Medical Publishers (STM). STM advises limiting ILL and document delivery to print documents, and only to on-site patrons. STM characterizes this proposal as a “good compromise” between libraries and publishers; we would characterize it as overreaching on the part of STM. Section 108 clearly allows ILL and document delivery, and STM’s acknowledgement of this fact does not amount to a compromise. Although section 108 was originally drafted in the pre-digital era, it doesn’t bar the electronic delivery of documents.
​Electronic delivery makes publishers nervous because it can facilitate additional copying by the patron (which could be infringing), but if publishers want to eliminate electronic document delivery and ILL under section 108, they’ll have to convince Congress to amend the law. In the meantime, if your library has obtained an article through ILL and you want to e-mail it to a patron, we say go ahead. Just remember the other restrictions we’ve mentioned.
While publishers wage a propaganda war against ILL, their friend the Copyright Clearance Center has introduced a fee-based service, called Get It Now, to compete with traditional ILL. Libraries that need articles from journals they don’t subscribe to can pay a fee to the CCC, in return for which the CCC will supply the library with PDFs of the requested articles. The CCC’s service is licensed by publishers, who in return receive a portion of the fees.
Although we have no quarrel with libraries that wish to use this service, we are concerned that a licensing model such as this may come to replace traditional ILL, the result being a dilution of users’ rights and more expense for libraries and patrons. The danger can be seen in an article from Information Today lauding the Get It Now service; in fine print at the end of the issue, Information Today advises libraries to contact the CCC for permission if they need to make copies of the article for ILL. This is nonsense. Libraries might choose to use Get It Now because of its convenience, but they don’t need the CCC’s permission to fill an ILL request.
Of course, what the courts say is more important than publishers’ guidelines. Unfortunately, we have only one appellate court decision—an old one at that—that involves library document delivery. In Williams & Wilkins Co. v. United States, the U.S. Supreme Court upheld, by a four-to-four vote, a U.S. Court of Claims decision holding that large scale copying by the National Library of Medicine and the National Institute of Health was a fair use. Although the NIH copied only for their own staff, about 12% of NLM’s requests came from private or commercial organizations, drug companies in particular.
​How William & Wilkins would be decided today is anyone’s guess. At the time Williams & Wilkins was decided in 1975, section 108 had not yet been enacted and libraries could rely only on the fair use defense to avoid liability for unauthorized copying. To some extent, section 108 reflects preexisting case law on fair use, including William & Wilkins, but it was intended to go beyond fair use in some respects. On the other hand, you should also consider what the appellate court in Texaco wrote about the advent of licensing since the Williams & Wilkins decision:
Whatever the situation may have been previously, before the development of a market for institutional users to obtain licenses to photocopy articles [citing Williams & Wilkins] … it is now appropriate to consider the loss of licensing revenues in evaluating “the effect of the use upon the potential market for or value of” journal articles. It is especially appropriate to do so with respect to copying of articles from Catalysis, a publication as to which a photocopying license is now available. We do not decide how the fair use balance would be resolved if a photocopying license for Catalysis articles were not currently available.
The dissenting judge in Texaco had a different opinion. Referring (as did the majority) to Williams & Wilkins, he wrote that he disagreed with the majority that “a reasonable and customary use becomes unfair when the copyright holder develops a way to exact an additional price for the same product,” and that what Dr. Chickering (the Texaco scientist) did was a customary fact of copyright life that should be considered a fair use. We happen to agree with Judge Jacobs. That a publisher or the CCC makes it easy for you to pay royalties does not abrogate fair use, section 108, or other user rights.
Nearly forty years after it was decided, what remains instructive about Williams & Wilkins are the NIH’s and NLM’s policies and practices. NIH made only single copies of articles, and generally would copy only forty or fifty pages, although longer articles would be copied with permission of a high level supervisor. As a general rule they copied only a single article from a journal issue. Exceptions were routinely made, but NIH would not copy more than half of an issue.
​NLM would make only single copies of articles, and would not copy an entire issue. Nor would they copy articles from 104 journals that were included on a “widely available” list. NLM would not honor what it considered an excessive number of requests from an individual or an institution: not more than twenty requests from an individual or thirty from an institution, within a month. NLM would copy no more than one article from a single issue, or three from a volume. Generally, they would not copy more than fifty pages.
With NIH’s and NLM’s policies in hand, as well guidelines from other librarians and publishers, here are our guidelines for when you can provide document delivery without paying royalties or obtaining permission. If they seem too liberal or conservative to you, adjust them to suit your taste. And remember that if the library is paying royalties, none of these guidelines are necessary.
Document Delivery Guidelines
* The library will not make more than one copy of an item at a time.
* The library will not make multiple copies of an item for the same user (including the institution with which the user 1s affiliated) whether made simultaneously or over a period of time.
* The library will not copy more than one article from a periodical issue for the same user.
* The library will include with the copy it makes, if readily available, the “notice of copyright” from the work copied. The library will include on every copy it makes the following notice: “This Material Is Subject to the United States Copyright Law; Further Reproduction in Violation of That Law Is Prohibited.”
* The library will not fill a request if it knows that the requestor plans to sell the copy. ​
* If the library first photocopies materials for subsequent faxing or scanning, it will destroy the photocopy after the transmission is complete.
* If the library downloads or scans a document to transmit it to a requestor, it will delete its electronic copy after the transmission is complete.
* The library will not honor an excessive number of requests from an individual or an institution for articles from the same journal title. The CONTU Guidelines, which we discuss later in this chapter, may provide some guidance as to when requests are excessive.
* Requests from other libraries include an attestation that the request complies with the Copyright Act or the CONTU Guidelines. The library will not provide copies if it knows that the request exceeds fair use or the section 108 exemption.
Out-of-Print and Unavailable Works (Section 108(e))
5.6. Section 108(e) Copying Entire Works for Patrons
From the collection of a library where the user makes the request or from another library if:
* New or used copy is unobtainable at a fair price
* Becomes the user’s property
* No notice of impermissible purpose
* Warning of copyright
Section 108(e) permits in some situations the copying of an entire work—a complete book, a substantial part of a book, or a journal issue—for a library patron if the library cannot obtain either a new or used copy at a fair price, and if the library meets the other requirements of subsection (d) discussed above (the copy becomes the property of the user; the library has no notice that the copy will be used for a purpose other than private study, scholarship, or research; and the library displays the copyright warning).
Like section 108(c), subsection (e) requires that the library make a reasonable effort to find a copy at a fair price. But the “unavailable copy” requirement for 108(e) is stricter than it is under 108(c). Under 108(c), Library A may ask Library B to make a copy of a damaged, deteriorating, lost, or stolen work if Library A cannot find a new copy at a fair price. ​Under 108(e), however, Library A must be unable to find either a new or used copy. The library, therefore, must contact both new and used dealers.
Example 1 Ronald Kornblow, a professor of hotel management, finds out that the International Journal of Hospitality Management recently published a symposium issue devoted to managing hotels in Islamic countries. He asks the library to photocopy every article from that issue for him.
    Comment: You cannot do this under 108(e). You could, of course, tell the professor that he may keep the library’s issue, and then order another issue for the library. The professor will love you, he will love the library, and he will support you when the library wants something really important, like $100,000 to replace its fraying carpeting. If you cannot afford to purchase another issue, check out the issue to the professor and give him plenty of time to read it.
Example 2 Professor Spaulding wants to read a book published in 1983 on architectural ruins in North Africa. You borrow the book from another library, and when it needs to be returned the professor tells you it is the best book he ever read on that topic and he wants to purchase a copy. Unfortunately, the book is out of print. You contact numerous new and used book dealers, but none have the book, nor can they locate one.
    Comment: Under these circumstances, you may copy the entire book for the professor under 108(e).
Example 3 Same fact pattern as Example 2, except that an electronic version of the book is available for purchase from Google Books.
    Comment: It doesn’t matter whether the copy available for purchase is print or electronic. If it’s available, the library can’t copy it. Professor Spaulding will have to buy a copy from Google Books.
A library is not liable for infringing activities done on library-owned reproducing equipment that is not “supervised.” Joe Student checks out a book from the Reserve Desk. He begins reading it, and decides to copy the entire book. We will assume that Joe’s actions are infringing. The library is not liable as a contributory infringer if (1) Joe’s copying is unsupervised, and (2) there is a notice on the machine that says:
Warning: The Making of a Copy May Be Subject to the United States Copyright Law (Title 17 United States Code)
Your equipment does not come with this warning, so you must create a label yourself. Make it prominent—use large, bolded typeface—and tape it to the machine, close to the “copy” button. Put a label on every copier in the building, even machines in staff-only areas.
Should you affix warning notices to library computers as well? Section 108(1)(1) doesn’t refer explicitly to computers, only to “reproducing equipment”, a term that is not defined in the Copynght Act. An argument could be made that computers are “reproducing equipment” because they cam be used to make digital copies, but in the absence of a statutory definition, words are assumed to have their common meanings. We don’t think that “reproducing equipment” refers to computers in everyday English, so we don’t think that Section 108(f)(1) applies to computers. There’s no harm in affixing copyright warnings to your library computers, but it’s probably not worth the effort. Moreover, as we explained in Chapter Three, we don’t think a library would incur any liability simply for letting patrons use library-owned computers.
Under section 108, a library is absolved from liability only for “unsupervised use of reproducing equipment located on its premises.” If the equipment is available for walk-up use and the library merely adds toner or ​paper, replaces cartridges, and fixes paper jams, the copying is not supervised. Copying is supervised when library staff (or the library’s agents if the library outsources copying services) make the copies, or when the equipment is under such close supervision that the library can control what patrons actually copy. The most obvious examples are copy centers in university or corporate libraries that make copies for students and employees. If the copying 1s infringing, then the library can be liable.
Do the same rules apply in both for- and non-profit organizations? The legislative history to the Copyright Act says that “a library in a profit-making organization could not evade these obligations by installing reproducing equipment on its premises for unsupervised use by the organization’s staff.” In other words, if an employee in a for-profit organization infringes copyright, both the employee and the institution can be held liable because businesses and corporations are assumed to have control over the actions of their employees.
The person who makes unauthorized copies on an unsupervised walk-up machine could be liable for infringement, of course. Section 108(f)(2) provides that a person who uses unsupervised equipment to make copies that exceed fair use is not excused from liability for infringement. Furthermore, a person who requests that the library make a copy for him or her under 108(d) is not excused from liability for infringement if the copying exceeds fair use.
Contracts, Licenses, and Fair Use (Section 108(f)(4))
Tiny subsection (f)(4) of section 108 has a lot of oomph, just like Maria Callas or Leontyne Price performing a Night at the Opera. Here is what it says:
Nothing in this section [108] in any way affects the right of fair use as provided by section 107, or any contractual obligations assumed at any time by the library or archives when it obtained a copy or phonorecord of a work in its collections.
Nothing in section 108 impairs the applicability of the fair use doctrine to a wide variety of situations involving photocopying or other reproduction by a library of copyrighted material in its collections, where the user requests the reproduction for legitimate scholarly or research purposes.
You should be wary of contrary messages from the publishing industry. Soon after passage of the Copyright Act, the Association of American Publishers and the Authors League of America asserted that libraries could copy materials only under section 108. The then Register of Copyrights also had a restrictive, although somewhat different, interpretation of the relationship between sections 107 and 108. The Register wrote that library photocopying beyond section 108 may be permitted as a fair use, but only if the copying would be a fair use absent section 108, and then, only if the library first accounted for any section 108 copying that already took place.
The AAP/Authors’ League and the Register were wrong. Section 108(f)(4) cannot be clearer: “Nothing in this section in any way affects the right of fair use as provided by section 107.” The legislative history is equally clear. Library copying and distribution may be permitted under section 107 even if it does not come within the section 108 exemption.
But there is another side of subsection (f)(4): Section 108 rights do not affect any contractual obligations assumed by a library when it obtained a copy of a work. In plain English, this means that by signing a license a library may agree to give up specific rights provided for in the Act, such as fair use and the section 108 exemption. Licenses and contracts are addressed in greater detail in Chapter Seven. For now, just remember this: you may contract away your rights. Review carefully all license agreements, and do not sign what you do not understand.
​The Section 108(g) Provisos
5.7. Section 108(g)
Section 108 rights do not apply to:
* Related or concerted reproduction
** Multiple copies
** Same material
* Systematic reproduction
** Single or multiple copies
** Same or different material
Related or Concerted Copying or Distribution (Section 108(g)(1))
Fasten your seatbelts, secure your tray tables, and place your seats in an upright position. If you think that libraries can do most anything under section 108, you are wrong. Section 108(g)(1) and (2) govern section 108. No Monkey Business is allowed. There are two parts to subsection (g), and we begin with the first part.
Section 108(g)(1) prohibits related or concerted copying or distribution of multiple copies of the same material, whether at one time or over a period of time, either for aggregate use by one or more individuals or for separate use by individual members of a group. Congress did not define what “related or concerted” means, so we will use some examples.
Example 1 Mary N. Librarian reads an article on insurance bad faith—when an insurance company places its own interests above those of its insured clients and unreasonably denies a claim. Mary thinks the article might interest several people: professors if she works in a law school, attorneys if she is in a law firm, or agents if she works for an insurance company.
Example 2 Mary is on a listserv and receives an e-mail message about the insurance bad faith article. The message has a link to the article, which the author posted on the Web.
    Comment: Mary should not download the article and send digital copies to professors, attorneys, or insurance agents. She should instead send an e-mail message that includes the link to the article.
Example 3 Mary presents continuing education workshops for several different library and education associations each year. She wants to give every attendee a packet of materials that includes several copyrighted articles.
    Comment: This looks and smells like related copying and distribution of multiple copies of the same material at one time (for a specific workshop) and over a period of time (the different workshops). It is precisely what subsection (g)(1) proscribes, and Mary needs to get permission from the copyright owners.
Systematic Copying or Distribution (Section 108(g)(2))
Section 108(g)(2) is a bit different from (g)(1). Subsection (g)(1) addresses related and concerted copying of the same copyrighted work. Subsection (g)(2) paints with a broader brush. It prohibits the systematic making of multiple copies, and in some cases even single copies, of articles or short excerpts from the same publication. Here is the precise language.
Subsection (g)(2) addresses copying for library users, and also copying between libraries. It expressly permits library-to-library copying, but there are limits. The big question: When is library copying systematic? A long, long time ago, the Register of Copyrights wrote that
[t]he fundamental concern with respect to (g)(2) has been and continues to be the lack of statutory precision or common consensus about what copying is (and is not) ‘systematic.’ The meaning of that term has been vigorously debated since before the enactment of the statute, but not even the rudiments of agreement have emerged.
The Register did offer this helpful advice: “the extent to which library photocopying services are large-scale operations, with full time photocopying staff, advertisements soliciting patronage, and consistently substantial output, bear directly on the extent to which such services are ‘systematic.’” The typical library (if one exists) photocopies or scans documents—mostly journal articles—for other libraries, and occasionally for the commercial sector. Other libraries offer extensive document delivery services that may operate as a separate division within their institution (typically a university library), with their own budget and staff. The latter arrangement is closer to what the Register of Copyrights warned about and may not fall under the section 108 exemption or qualify as a fair use. Libraries that do engage in “systematic” copying or distribution need to get permission or pay royalties.
The Senate Judiciary Committee offered specific examples of what it considered systematic copying. Do not take these as gospel; the Senate Committee was more conservative than the House Committee with regard to library copying. That said, here are the Senate Committee’s examples, and our comments.
​Senate Example 1 A library with a collection of journals in biology informs other libraries with similar collections that it will maintain and build its own collection and will make copies of articles from these journals available to them and their patrons on request. Accordingly, the other libraries discontinue or refrain from purchasing subscriptions to these journals and fulfill their patrons’ requests for articles by obtaining photocopies from the source library.
    Comment: The real test is one of degree: How many copies are being requested by the libraries that cancel their subscriptions? Each library certainly may request copies within the CONTU Guidelines, which we will get to shortly. Also remember that the first sale doctrine allows a library to freely lend its material to other libraries, regardless of section 108 limitations, as it isn’t making any copies. Nowadays, it’s more likely that the library will get the journal electronically via a license agreement. In this case, the license will control. You will want to review carefully its terms, especially those dealing with lending and document delivery.
Senate Example 2 A research center employing a number of scientists and technicians subscribes to one or two copies of needed periodicals. By reproducing photocopies of articles the center is able to make the materials in these periodicals available to its staff in the same manner which otherwise would require multiple subscriptions.
    Comment: This sounds like Texaco, except here the library makes the copies rather than the scientist. If the library makes so many copies that copying does, indeed, substitute for additional subscriptions—if but for the copying the library would need additional subscriptions—then the copying is systematic and violates 108(g)(2).
    Reactive is better than proactive. A library that actively promotes its copying services is engaging in risky business. If your library sends out weekly or monthly tables of contents from recently published journals to professors or lawyers, you would be wise not to advertise that the library will photocopy articles upon request. A library that becomes a copying factory will run afoul of the related or concerted copying prohibitions of 108(g)(1), and perhaps the systematic copying proscribed by 108(g)(2). Remember that section 108(g) begins with these words: “The rights of reproduction and distribution under this section extend to the isolated and unrelated reproduction or distribution of a single copy or phonorecord of ​the same material on separate occasions.” For digital content, check your license. If all staff are “authorized users,” everyone can access the content without intervention by the library.
Senate Example 3 Several branches of a library system agree that one branch will subscribe to particular journals in lieu of each branch purchasing its own subscriptions. The one subscribing branch will copy articles for users in any branch.
    Comment: This differs from the first example in that it involves a single library system that decides to reduce its number of subscriptions to the same title. Should transactions between libraries within a single library system be considered “interlibrary” transactions? We think the answer is yes. If the central library sends lots of copies to its branches—so many that the single subscription substitutes for subscriptions the branches really should have—the copying is systematic. As in Senate Example 1, consider lending the issue rather than making copies.
    Subscriptions to most periodicals subscribed to by city and county public libraries are not expensive. Do not be penny-wise and pound-foolish. Money saved by cancelling a subscription to a $50 magazine will be quickly eaten up by photocopying or shuttle costs. If a title is used frequently in each branch of a library system, you should have multiple subscriptions. You will make your users happy, and probably will save money in the long run.
    As for digital journals, the licensing agreement may make the content available to one library, to several libraries, or to all libraries in the system. Similarly, the content may be available to some, or all, of the library system’s users. Don’t plan on using section 108 or any other aspect of copyright law to get around the license agreement, because the license agreement overrides regular copyright rules. Whatever agreement you sign is what you will live by, so negotiate for broad access rights.
5.8. Section 108(g)(2) The CONTU Guidelines
* Journal published within last five years
* Maximum of five articles from same title in one year
* Exceptions:
** issue is missing
** journal is on order
* Attestation by requesting library
* Maintain three years of “borrowing” records
After writing that section 108 struck the appropriate balance between the rights of creators and the needs of users, the Senate Judiciary Committee continued:
However, neither a statute nor legislative history can specify precisely which library photocopying practices constitute the making of “single copies” as distinguished from “systematic reproduction.” Isolated single spontaneous requests must be distinguished from “systematic reproduction.” The photocopying needs of such operations as multi-county regional systems must be met. The committee therefore recommends that representatives of authors, book and periodical publishers and other owners of copyrighted material meet with the library community to formulate photocopying guidelines to assist library patrons and employees.
The House Judiciary Committee’s Report, submitted nine months after the Senate Report, noted the “storm of controversy” provoked by the addition of subsection (g)(2) proscribing the “systematic reproduction or distribution of single or multiple copies or phonorecords,” and that 108(g)(2) was then amended to include the proviso “that nothing in this clause prevents a library or archives from participating in interlibrary arrangements that do not have, as their purpose or effect, that the library or archives receiving such copies or phonorecords for distribution does so in such aggregate quantities as to substitute for a subscription to or purchase ​of such work.” The Committee wrote that the National Commission on New Technological Uses of Copyrighted Works (CONTU) offered to help develop “more or less specific guidelines establishing criteria to govern various situations.” The CONTU Guidelines, which were included in the House Committee Report, follow.
Guidelines for the Proviso of Subsection 108(g)(2)
(a) with respect to any given periodical (as opposed to any given issue of a periodical), filled requests of a library or archives (a “requesting entity”) within any calendar year for a total of six or more copies of an article or articles published in such periodical within five years prior to the date of the request. These guidelines specifically shall not apply, directly or indirectly, to any request of a requesting entity for a copy or copies of an article or articles published in any issue of a periodical, the publication date of which is more than five years prior to the date when the request is made. These guidelines do not define the meaning, with respect to such a request, of “… such aggregate quantities as to substitute for a subscription to [such periodical].”
(b) With respect to any other material described in subsection 108(d), (including fiction and poetry), filled requests of a requesting entity within any calendar year for a total of six or more copies or phonorecords of or from any given work (including a collective work) during the entire period when such material shall be protected by copyright.
2. In the event that a requesting entity—
(a) shall have in force or shall have entered an order for a subscription to a periodical, or
(b) has within its collection, or shall have entered an order for, a copy of phonorecord of any other copyrighted work, materials from either category of which it desires to obtain by copy from another library or archives (the “supplying entity”), because the material to be copied is not reasonably available for use by the requesting entity itself, then the fulfillment of such request shall be treated as though the requesting entity made such copy from its own collection. A library or archives may request a copy or phonorecord from a supplying entity only under those ​circumstances where the requesting entity would have been able, under the other provisos of section 108, to supply such copy from materials in its own collection.
3. No request for a copy or phonorecord of any materials to which these guidelines apply may be fulfilled by the supplying entity unless such request is accompanied by a representation by the requesting entity that the request was made in conformity with these guidelines.
4. The requesting entity shall maintain records of all requests made by it for copies or phonorecords of any materials to which these guidelines apply and shall maintain records of the fulfillment of such requests, which records shall be retained until the end of the third complete calendar year after the end of the calendar year in which the respective request shall have been made.
5. As part of the review provided for in subsection 108(i), these guidelines shall be reviewed not later than five years from the effective date of this bill.
The CONTU drafters apparently had grand illusions of being in Congress. Let’s use plain English, and some examples and comments, to explain what the Guidelines really say.
* The Guidelines apply only to journal articles published within the last five years.
* In any one year, the Guidelines expressly permit a library to request from another library copies of five articles from the same journal title. Some call this the “Rule of 5” or “Suggestion of 5.”
Example 1 You work in a college library. Professor Spaulding, a visiting professor for one semester, needs articles from several journals your library does not own. Are you absolutely limited to requesting from other libraries no more than five copies from each title?
    Comment: No. Here is what the Conference Committee wrote about the Guidelines:
       The conference committee understands that the guidelines are not intended as, and cannot be considered, explicit rules or directions governing any and all cases, now or in the future. It is recognized that their purpose is to provide guidance in the most commonly encountered interlibrary photocopying situations, that they are not intended to be limiting or determinate in themselves or with respect to other situations, and that they deal with an evolving situation that ​will undoubtedly require their continuous reevaluation and adjustment. With these qualifications, the conference committee agrees that the guidelines are a reasonable interpretation of the proviso of section 108(8)(2) in the most common situations to which they apply today.
Example 2 The requestor is an attorney who is working on a quick turnaround, one-time project.
    Comment: Same answer as above.
   * You do not need to count requests if your library subscribes to the journal and the issue you need happens to be unavailable.
   * You do not need to count requests if your library has entered an order for a subscription to the journal.
   * The requesting library must attest that the request conforms to the guidelines.
Example 3 The requesting library confirms that the request complies with another provision of the Act, such as section 108(c)—to replace a damaged or lost copy.
    Comment: This is fine. The American Library Association’s Interlibrary Loan Request Form, and both the WorldCat and ILLiad electronic ILL protocols, require that the requesting library indicate that the request complies with either the 108(g)(2) Guidelines (CCG) or other provisions of the copyright law (CCL).
The requesting library does not include any attestation.
    Comment: Just say no.
   * The requesting library should keep records of its document delivery requests for three full calendar years, plus the current year.
Example 5 Your interlibrary loan clerk read the USA Patriot Act and is concerned about privacy. She wants to discard all borrowing records more than three months old.
    Comment: The ALA notes that ILL transactions are confidential library records, but that including a user’s name on an ILL request does not violate their Interlibrary Loan Code. To monitor requests, we suggest that libraries record (1) the date of the request; (2) the title and author of the article; and (3) the title of the journal, its volume number, and the publication date. Three full calendar years plus the current year means just that: Keep records for the entire time period.
    The Patriot Act treats library records, including borrowing transactions, as business records that must be disclosed to law enforcement officials who present a subpoena or search warrant from a duly authorized court as part of a criminal investigation. After an ILL transaction has been completed, libraries may want to delete from their records the name of the person who requested the item.
    In the end, there is no exact answer as to how much copying is permitted under section 108. Even non-profit academic libraries that arguably have “gold club” status cannot make copies for faculty or students, or use document delivery, in quantities such that the copying substitutes for needed subscriptions or purchases. Because section 108 really is a fair use—like provision that permits a library to, in effect, act as an agent for the person who needs a copy, the answer to the question “How much may I copy?” depends on the facts.
    So here you are, in the gray zone. What is the bottom line when your library receives a request from a library patron—a teacher, a judge, a corporate CEO, whomever—and are unsure whether the use is permitted under section 108 or as a fair use? If you thought about this a lot and still think it is a close call, you may recall that the primary purpose of copyright is not to reward copyright owners but instead to enhance knowledge and promote the creation of other works. Just say yes.
5.9. Section 108(h) Preservation and Term Extension
May copy, distribute, display, or perform the work during last twenty years of term for preservation, scholarship, or research
* The work is not exploited commercially
* A copy is unobtainable at a fair price
* No owner notification
The Sonny Bono Copyright Term Extension Act added twenty years to the copyright term. Congress tried to appease the library and academic communities with a tiny bone: During the last twenty years of copyright of a published work, a library or archives, or a non-profit educational institution that functions as a library or archives, may copy, distribute, display, or perform a work—in either facsimile or digital form—for preservation, scholarship, or research if (a) the work is not subject to normal commercial exploitation, and (b) a copy cannot be obtained at a reasonable price. The library may not take advantage of the exemption if the copyright owner notifies the Copyright Office that either (a) or (b) apply.
The “normal commercial exploitation” language appears to mean that the copyright owner has decided there is no commercial value in the work. If the copyright owner makes the work available on the Web for a fee—either as part of a database or as a stand-alone product—or if the library can purchase reprints, the work is being commercially exploited and the exemption does not apply. And even if the work is not being commercially exploited, the exemption only applies if the library cannot acquire a copy at a reasonable price.
The Bottom Line: This exemption is not worth the paper it was printed on, nor the bits and bytes it takes up in the digital world. Works that have ​value will be commercially exploited. And in any event, by the time a work is in the last twenty years of its term, it is pretty darn old.
Non-Print Works (Music, Pictures, Graphs, and Sculptural Works) (Section 108(i))
5.10. Section 108(i) Non-Print Works
Except for subsections (b) and (c), Section 108 does not apply to:
* Musical works
* Pictorial, graphic or sculptural works, or
* Motion pictures or other AV works other than news
But
Section 108 is designed primarily for print works and sound recordings. Most of the library exemption does not apply to the following: (1) musical works, (2) pictorial works, (3) graphical works, (4) sculptural works, (5) motion pictures, and (6) audiovisual works that do not deal with the news.
Section 108(i), however, provides that each of these six types of works may be reproduced or distributed under certain circumstances. First, section 108(b), which permits the copying of an unpublished work for purposes of preservation, security, or for deposit for research use in another library, applies to works in these non-print formats. Second, section 108(c) also applies to these types of works, thereby permitting the copying of a published work in these formats to replace a damaged, deteriorating, lost, or stolen copy if the library cannot obtain an unused replacement copy at a fair price. Third, section 108(c) also permits the making of a copy if the ​format in which the work is stored is obsolete and you cannot acquire an unused replacement of the work at a fair price.
Articles and book chapters often are accompanied by illustrations, diagrams, graphs and charts. You may include illustrations, diagrams, etc., when you copy an article or book excerpt under section 108(d) or (e).
Section 108 and Fair Use (Reprise) (Section 108(f)(4))
Section 108, as you have seen, has its limitations. But remember that fair use may still apply. Section 108(f) reads “[n]othing in this section … in any way affects the right of fair use as provided by section 107… .” This is reinforced by the House Judiciary Committee:
Nothing in section 108 impairs the applicability of the fair use doctrine to a wide variety of situations involving photocopying or other reproduction by a library of copyrighted material in its collections, where the user requests the reproduction for legitimate scholarly or research purposes.
* ↑ Section 108 Study Group Report, available at http://www.section108.gov/docs/Sec108StudyGroupReport.pdf.
* ↑ 17 U.S.C. § 108(a)(2) (2006).
* ↑ Id. § 108(a)(1).
* ↑ S. Rep. No. 94-473, at 67.
* ↑ H.R. Rep. No. 94-1476, at 75.
* ↑ Id. at 75.
* ↑ H.R. Rep. No. 94-1733 (Conf.), at 73–74 (1976), reprinted in 1976 U.S.C.C.A.N. at 5810. If you’re tempted to use the Texaco case for further guidance on section 108, remember that Texaco was decided under fair use and not under section 108.
* ↑ Association of Research Libraries, Interlibrary Loan and Document Delivery (ILL/DD) Performance Measures Study, Executive Summar LL/DD Performance Measures Study (May 1998), available at http://www.arl.org/bm~doc/illdds.pdf.
* ↑ 17 U.S.C. § 108(a)(3) (2006).
* ↑ 17 U.S.C. §§ 401–405 (2006).
* ↑ 37 C.F.R. § 201.20 (2011).
* ↑ U.S. Copyright Office, Circular 3: Copyright Notice (rev’d Aug. 2011).
* ↑ S. Rep. No. 105-190, at 61 (1998).
* ↑ Id.
* ↑ The Section 108 Study Group recommended that libraries should be permitted to make digital copies available outside the library if the original unpublished work was also digital. Section 108 Study Group Report 61, available at http://www.section108.gov/docs/Sec108StudyGroupReport.pdf.
* ↑ In 1983, David Ladd, Register of Copyrights, citing the Senate Judiciary Committee’s report (S. Rep. No. 94-473, at 106), wrote that “there is no fair use copying [of unpublished works] permitted beyond that authorized by 108(b).” U.S. Copyright Office, Report of the Register of Copyrights: Library Reproduction of Copyrighted Works (17 U.S.C. § 108) 106 (1983) [hereinafter Register’s Report]. However, one of the premier treatises on copyright law includes this passage: “The scope of the fair use doctrine is considerably narrower with respect to unpublished works that are held confidential by their copyright owners. Note that ‘confidential’ differs subtly from ‘unpublished.’ If the author does not seek confidentiality, fair use is not necessarily precluded even as to an unpublished work.” Melville B. Nimmer & David Nimmer, Nimmer on Copyright § 13.05[A][2][b] (2011). Nimmer continues “The amendment thus reaffirms the holding in the Nation case—in particular, that the unpublished nature of a work … is a ‘key, though not necessarily determining factor tending to negate a determination of fair use’ …” Id.
* ↑ Section 107 was amended in 1992 to address the problem users had copying from unpublished works after the Salinger decision, discussed earlier. Pub. L. No. 102-492, 106 Stat. 3145 (Oct. 24, 1992).
* ↑ H.R. Rep. No. 94-1476, at 75–76; S. Rep. No. 94-473, at 68.
* ↑ Register’s Report, supra note 16, at 107–08.
* ↑ See http://www.reaganfoundation.org/her-causes.aspx.
* ↑ “At last we are to meet him, the famous Captain Spaulding. From climates hot and scalding, the Captain has arrived … .” “Hooray for Captain Spaulding”, from the film Animal Crackers (music and lyrics by Bert Kalmar & Harry Ruby (1936)).
* ↑ Association of American Publishers, Statement of the Association of American Publishers on Document Delivery (Apr. 1994).
* ↑ 17 U.S.C. § 108(a)(1).
* ↑ International Association of Scientific, Technical & Medical Publishers, Statement on Document Delivery 2 (May 31, 2011), available at http://www.stm-assoc.org/industry-news/stm-statement-on-document-delivery/.
* ↑ See http://www.copyright.com/content/cc3/en/toolbar/productsAndSolutions/getitnow.html.
* ↑ Barbara Brynko, Armstrong: The Voice of Copyright, Information Today, Oct. 2011, at 1.
* ↑ 487 F.2d 1345 (Ct. Cl. 1973) (aff’d by an equally divided Court, 420 U.S. 376 (1975)).
* ↑ S. Rep. 94-973, at 67 (1975).
* ↑ Texaco, 60 F.3d 913, 931.
* ↑ Id. at 934 (Jacobs, J., dissenting).
* ↑ Williams & Wilkins, 487 F.2d at 1348.
* ↑ Id. at 1348–49.
* ↑ The American Association of Law Libraries’ (AALL) Guidelines on the Fair Use of Copyrighted Works by Law Libraries (rev’d 2001) is reproduced in Appendix J. The AALL’s Model Law Firm Copyright Policy (rev’d 2001) is reproduced in Appendix K.
* ↑ In addition to the AAP’s statement and STM’s guidelines, we also considered Copyright Clearance Center, Interlibrary Loan: Copyright Guidelines and Best Practices (March 2011).
* ↑ Guidelines adapted from James S. Heller, The Impact of Recent Litigation on Interlibrary Loan and Document Delivery, 88 L. Libr. J. 158, 176–77 (1996).
* ↑ From A Night in Casablanca (Loma Vista Productions 1946).
* ↑ 17 U.S.C. § 108(f)(1) (2006).
* ↑ See Johnson v. U.S., 130 S. Ct. 1265, 1270 (2010); Norman J. Singer & J.D. Shandie, 2A Statutes and Statutory Construction § 47:7 (7th ed. 2007).
* ↑ H.R. Rep. No. 94-1476, at 75.
* ↑ 17 U.S.C. § 108(f)(2) (2006).
* ↑ H.R. Rep. No. 94-1476, at 78–79.
* ↑ Association of American Publishers & The Authors League of America, Photocopying by Academic, Public and Nonprofit Research Libraries 4, 16 (1978).
* ↑ Register’s Office, supra note 16, at 98–99.
* ↑ 17 U.S.C. § 108(g)(2) (2006).
* ↑ Register’s Report, supra note 16, at 130.
* ↑ Id. at 140.
* ↑ S. Rep. No. 94-473, at 70.
* ↑ Id. at 70–71.
* ↑ H.R. Rep. No. 94-1476, at 77–78.
* ↑ Id. at 78.
* ↑ Id. at 68–70.
* ↑ H.R. Rep. No. 94-1733 (Conf.), at 71–72 (1976).
* ↑ The ALA reminds requesting libraries that they are responsible for complying with section 108(g)(2) and the CONTU Guidelines. American Library Association, Interlibrary Loan Code for the United States, Explanatory Supplement § 4.8 (May 2008) [hereinafter ALA Interlibrary Loan Code]. The ALA’s interlibrary loan request form is available at http://www.ala.org.
* ↑ Pub. L. No. 107-56, 115 Stat. 272 (2001).
* ↑ ALA Interlibrary Loan Code, supra note 53, § 4.2.
* ↑ 17 U.S.C. § 108(h)(1)–(3) (2006).
* ↑ Id. § 108(i). A “musical work” is different from a “sound recording.” The musical work is the composition; the sound recording is what we hear by playing a disk, tape, phonorecord, etc.
* ↑ H.R. Rep. No. 94-1476, at 78–79.