Library Copyright Exceptions
How Can the Library Do What It Does?
It is anticipated that this portion of our copyright web resource will be viewed primarily, if not entirely, by librarians. Those who are new to copyright should first gain a basic understanding of copyright by visiting the Copyright Basics Tutorial and the Using Copyrighted Works Tutorial.
The sections of the Copyright Act relied upon by the university library in carrying out the many facets of its service mission are few, but vital:
• Section 109: The First Sale Doctrine
• Section 108: The Library Provisions
These provisions are not mutually exclusive. That is, if the proposed activity does not meet the requirements of any of the subsections of §108, the library is free to turn to §107, fair use, and determine whether that analysis will support the desired result.
The first sale doctrine began in 1908 with a court case and was subsequently codified as §109 of the 1976 Copyright Act. It states that the owner of a lawfully made copy of a work, or someone authorized by the owner of such a work may sell or otherwise dispose of it without the permission of the copyright holder. This means, for example, if you buy a lawfully made book (or someone gives it to you), you can dispose of that book any way you wish - sell it, lend it, give it away, throw it away, burn it, whatever! (You just can't copy the entire work). Now you can have a place that lends books (library?), a used-book store, and a book as a present. It means that the author (or copyright holder's) right to proceeds ends with the first sale of the book. The more interesting question is will first sale survive the e-book or e-journal? These works aren't typically "owned"; they are "licensed" and many of the license agreements go out of their way to make sure that you are aware that you do not own the work, you are simply licensed to use it. Similarly, if a book is downloaded to an e-book device, is it tethered to that device, that is, allowed only to reside on that single machine? Or can you transfer the book off your device when you are done with it and give it to your friend to read on their own device. Easy and common in the print world to give books you are finished with to someone else to read. But what now?
Section 108 of the Copyright Act contains special provisions or exceptions to the copyright holder's exclusive set of rights designed to allow a qualifying library to reproduce copyrighted materials for itself, other libraries and its patrons if certain specific conditions are met. In order to qualify for the 108 exceptions, a library must:
• Be open to the public or open, not only to affiliated researchers, but also to other researchers in a specialized field;
• Any reproductions or distribution of reproductions made under 108 must be made without any purpose of direct or indirect commercial advantage; and
• Any reproductions made must include a notice of copyright, if one can be found. If no notice of copyright can be found on the work, the library should include a statement that the work reproduced may be protected by copyright.
Libraries who meet all of these conditions may then avail themselves of the §108 exceptions. Keep in mind, however, that fair use is always an option for libraries whose activities do not fall within any of the §108 provisions.
