Copies for Users

The Copyright Act contains a series of exceptions to the section 106 exclusive rights of the copyright holder. One of these exceptions, section 108, applies specifically to libraries and archives. This section permits libraries that satisfy certain criteria to make copies for the library itself (covered in chapter 11, "Preservation and Archiving"), and for users. Libraries also have general fair use rights, as do users themselves. Fair use requires courts to analyze the copying, evaluate it on the basis of the four fair use factors, and weigh these factors to determine whether a particular use is a fair use. The four fair use factors are (1) purpose and character of the use, (2) nature of the copyrighted work, (3) amount and substantiality of the portion used in comparison to the copyrighted work as a whole, and (4) market effect.

Section 108(a) of the Copyright Act applies to all of the copying activity detailed in the remainder of that section. In order to qualify for the exception, libraries and archives must meet three criteria: (1) the copying a library does must not have a direct or indirect commercial advantage, (2) the library must be open either to the public or to researchers conducting research in a specialized field, and (3) each copy reproduced must contain a notice of copyright.

Libraries are permitted to make a single copy of one article from a periodical issue, chapter of a book, and so forth, to satisfy a user request under section 108(d). But the copy must become the property of the user, the library must give the user a warning of copyright, and the library must have no notice that the reproduction provided will be used for other than fair use purposes. Section 108(g)(1) relates to the copying in section 108(d) and limits the copying so that it is neither concerted nor systematic.

Section 108(e) expands the copying that libraries may do for users under section 108(d). Section 108(e) applies to a single copy of a substantial portion of a work, or even an entire work, upon the request of a user. The same three requirements from section 108(d) apply to 108(e), but 108(e) has the additional requirement that the library must first make a reasonable effort to obtain a copy of the work at a fair price.

Copying for users includes multiple copying for the classroom in academic and school libraries (e.g., preparing course packs, providing copies requested by distance education students, copying handouts for meetings, and so forth). Users also may reproduce their own copies under fair use. When a user makes copies, whether by photocopying or by using a digital camera or scanner, the user is liable, but the library is not if it posts a notice on equipment that advises users that making a copy may be subject to the copyright law.

Section 108 of the Copyright Act is primarily an exception for the reproduction of text. Section 108(i) excludes from library copying musical works, pictorial, graphic, and sculptural works, and audiovisual works other than those pertaining to the news. For preservation and replacement, however, this exclusion does not apply, and nonprint works may be preserved and replaced under the conditions detailed in sections 108(b), (c), and (h); this is covered in chapter 11, "Preservation and Archiving." The section 108(i) exclusion is for photographs and graphic works that are part of a textual work reproduced under sections 108(d) and (e).

When making copies for users, does it make a difference if the library is part of a for-profit entity?

This is not absolutely clear in the statute. Certainly, the answer is easier if the library is in a nonprofit organization. The question of whether a library in the for-profit sector copies for commercial advantage has never been litigated. In American Geophysical Union v. Texaco, Inc., 37 F.3d 881 (2d Cir. 1994), the courts, especially the district court, seemed to say there is a commercial advantage, although the Texaco case was a section 107 fair use and not a section 108 library exceptions case. The librarian should consult corporate counsel to assist the library in making the decision about whether and how Texaco applies to the particular corporation.

 
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