Library Copying for Patrons
Section 108 of the Copyright Act contains provisions that allow the library, under specific circumstances, to make a copy of a work or a portion of a work for its users and for itself. It also contains an important provision exempting the library from liability for any infringing activities that may occur on its self-service reproduction equipment.
When Can the Library Make Copies for its Users?
A. Copying less than the entire work, i.e., a single copy of an article or other contribution to a collection or periodical issue OR a small portion of any other copyrighted work if
• the copy becomes the property of the user; and
• the library has no notice that the work is being used for any purpose other than private study, scholarship, or research; and
• the library displays the prescribed copyright warning prominently at the place where copy orders are accepted and on the copy order form. §108(d)
B. Copying the entire work or a substantial portion if:
• No copy of the work can be obtained at a fair price after a reasonable investigation; and
• the copy becomes the property of the user; and
• the library has no notice that the work is being used for any purpose other than private study, scholarship, or research; and
• the library displays the prescribed copyright warning prominently at the place where copy orders are accepted and on the copy order form. §108(e)
There are two more important limitations on the library's ability to make a copy of a work for a user:
1. The above rights to copy and distribute 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..., or to pictorial or graphic works published as illustrations, diagrams, or similar adjuncts to works. §108(i)
2. The library must not be aware or have substantial reason to believe that it is engaging in the related or concerted reproduction or distribution of multiple copies of the same material whether
-Made on one occasion or over a period of time, and
-Intended for aggregate use by one or more individuals or for separate use by the individual members of a group. §108(g)
When can the library make a copy for itself?
1. Unpublished works:
A qualifying library may only make a copy of an unpublished work, currently in its collection, for purposes of preservation and security. It may also make such a copy for deposit in another qualifying library for research purposes. Up to three copies of the work can be made and they may be in digital format as long as the digital copy is not made available to the public in that format outside the premises of the library. §108(b)
2. Published works:
A qualifying library may make up to three copies of a published work solely for replacement of a work that is damaged, deteriorating, lost, stolen, or if the existing format in which the work is stored is [tip: obsolete=when device necessary to perceive the work is no longer made or commercially available] only if, after a reasonable effort, an unused replacement cannot be obtained at a fair price. If a digital copy is made, it cannot be made available to the public in that format outside the premises of the library. §108(c)
3. Last 20 years of a work's term of copyright:
§108(h) was added in 1998 when the Digital Millennium Copyright Act (DMCA) was passed as a nod to library associations who had opposed the circumvention restrictions as being overly broad and impairing fair use. This section allows a library to copy, distribute, display, or perform a work that is in its last twenty years of copyright but only if the work cannot be obtained at a fair price, it is no longer subject to commercial exploitation, and the copyright holder doesn't file a formal objection.
Is the library responsible for what users do at self-service reproducing equipment, like photocopiers?
No. Section 108(f) exempts the library from liability for copyright infringement that may occur by library patrons at unsupervised reproduction equipment, as long as the equipment displays a notice that the making of a copy may be subject to the copyright law. Note that this is not limited to photocopiers but extends to any equipment capable of reproduction, such as printers, computers, scanners, cameras, recording equipment, microfiche readers, etc. as long as the notice is placed on the machine.
