by Paul Hellyer
In this third installment of VALL’s copyright column, we’ll
take a look at Section
108 of the Copyright Act, which covers copying by libraries and archives.
This section made its first appearance in 1976, the last year the Copyright Act
was completely overhauled. Section 108 expressly allows libraries to make
copies of protected works without the owners’ permission under certain
circumstances. Here’s a quick summary of what a library may copy (check the
code section for more details):
·
Up to three copies of an unpublished work owned
by the library for deposit in another library or for preservation. (Section
108(b)).
·
Up to three copies of a published work to
replace copies that are damaged, deteriorating, lost or stolen, or that are in
an obsolete format, if authorized new copies can’t be obtained at a fair price.
(Section 108(c)).
·
One copy of an article or book excerpt for a
patron, including through interlibrary loan, provided that the library has no
notice that the use will be for anything other than private study, scholarship
or research. (Section 108(d)).
·
One copy of an entire work (such as a book or
journal issue) for a patron, provided that a new or used copy can’t be obtained
at a fair price and the library has no notice that the use will be for anything
other than private study, scholarship or research. (Section 108(e)).
Libraries were already engaging in these activities prior to
the 1976 Act, but were doing it under the fair use doctrine. There’s a long
history supporting these practices, including the 1973 U.S. Court of Claims case
Williams & Wilkins Co. v. United States,[1]
which the U.S. Supreme Court affirmed without an opinion.[2]
Section 108 was intended to clarify matters, not bring about any major changes
in the status quo. It was never clear that Section 108 created any new rights
that libraries would not have had under general fair use principles.
It’s important to note that Section 108 doesn’t extinguish
libraries’ fair use rights—Section 108(f)(4) expressly reserves library’s fair
use rights. So you don’t need to fit all your activities within Section 108 to
stay within the law—you may also engage in copying that fits within the fair
use section (Section 107). We saw a good example of that in my
last copyright column on the HathiTrust case, where a library got away with
copying and distribution that clearly had nothing to do with Section 108.
So if Section 108 was designed to clarify the law for us, has
it succeeded? Increasingly, the answer seems to be no. Section 108 was never a
model of clarity—from the start, it had to be supplemented with nonstatutory
guidelines.[3] Over
time, as we’ve moved into the digital age, Section 108 is looking even murkier.
Several years ago, a distinguished group of librarians and copyright experts,
convened by the U.S. Copyright Office and the Library of Congress, issued a very
thorough report on how to update Section 108 for the 21st century,[4]
but in Congress, the report fell on deaf ears.
Another issue is that Section 108 has never attracted much
litigation. That’s a mixed blessing. While it’s a good thing that publishers
haven’t been aggressive in suing libraries over the boundaries of Section 108,
it also means we don’t have much guidance from the courts on what Section 108
means. In West’s annotated U.S. Code, Section 108 has a single note of
decision—a 1990 district court opinion that’s of little relevance to libraries.
KeyCite reports that 36 cases have cited Section 108 since its creation,
compared to over 1,300 cases that cite Section 107.
Let’s delve into some of the questions surrounding Section
108.
What counts as a library
or archives in the digital age? Section 108 is limited to libraries or
archives, but Congress didn’t define those terms for us. Maybe there wasn’t
much need for definitions in 1976, but now we have some so-called archives whose
collections exist only online. Does something like the Internet Archive (home of the Wayback
Machine) qualify for Section 108 protection? It’s a question with no definitive
answer. All we can say with certainty is that Section 108 doesn’t offer much
that an online archive could make use of. As a practical matter, online
archives are better served by the general fair use doctrine.
Can libraries within
for-profit institutions participate in Section 108? Section 108 is limited
to copying made without any purpose of direct or indirect commercial advantage,[5]
but that restriction is directed at the copying itself, not the overall nature
of the parent institution. There’s nothing in the statutory text that excludes
libraries in for-profit institutions.[6]
There is a requirement that the collections of the library be open to the
public or available to researchers outside the parent institution, but a
library could meet this requirement by making its collections available through
interlibrary loan.
Can libraries make
digital copies and deliver them electronically under Section 108? When
Section 108 was first enacted, libraries were making copies through photocopying
and microfilming. When digital copies appeared on the scene, publishers became
alarmed, and it’s easy to see why. A digital copy facilitates further copying
by users, who can easily forward copies via email or post them on the web. In
1998, Congress amended subsections (b) and (c) (covering copies for
preservation and replacement) to expressly allow for digital copies, with the
proviso that libraries are not permitted to distribute these digital copies
outside the premises of the library. Subsection (d), which covers copies for
patrons including ILL, was not affected by this change.[7]
So the key question now is whether libraries may fill ILL requests by making
digital copies and delivering them electronically. We know that many libraries
are already doing so. Subsection (d) never specified what method of copying is
permitted, and because a copy is a copy for purposes of copyright law, it would
seem that digital copies would be permitted. The problem, as pointed out in the
Section 108 Study Group Report, is that subsection (d) specifies only one copy, and making and delivering a
digital copy involves creating more than one copy--at least one on the sender’s
computer and one on the recipient’s computer.[8]
Until there is further clarification from the courts or Congress, the best
solution seems to be a compromise—if you have to make more than one copy, make
sure you treat the extra copies as temporary and delete them. Even if this
doesn’t fit neatly into subsection (d), remember that you always have fair use
as a fallback position.
Can libraries use
subscription databases for Section 108 purposes? As more and more of our
content migrates from print and microfilm sources to subscription databases, we
find that Section 108 is bumping up against our license agreements. Can a
library fill an ILL request using content from a subscription database? As a
default rule, the answer seems to be yes, but subscription databases always
come with license agreements that change the default rules. If you try to use
your subscription databases for Section 108 purposes, you might be inviting a breach
of contract claim. Congress could step in here to say that Section 108
overrides license agreements, but don’t hold your breath.
What fees may
libraries charge when making copies under Section 108? Section 108 doesn’t
apply to any copying done for direct or indirect commercial advantage, but
there’s no further guidance in the text of the section about charging fees. If
we limit fees to cover direct expenses such as postage, paper and toner,
libraries should be in the clear. But when fees go beyond this, we fall into a
gray area. Covering some overhead costs for equipment and personnel seems
reasonable, but there are no clear boundaries as to what counts as “overhead.”
Spending part of your ILL revenue on your acquisitions budget would be an
example of something that’s out of bounds, even if you’re at a non-profit
institution. Remember that it doesn’t matter whether the parent institution is
for-profit or non-profit, but rather whether the copying itself is for “direct
or indirect commercial advantage.” Being part of a non-profit institution
doesn’t give you carte blanche to charge whatever fees you like.
As a reminder, if you have questions about copyright law
that you would like to see addressed in this column, please send them to me at phellyer@wm.edu.
[1]
487 F.2d 1345.
[2]
420 U.S. 376 (1975).
[3] Final
Report of the National Commission on New Technological Uses Of Copyrighted
Works (1979), more commonly known as the CONTU Guidelines.
[4] Section 108 Study Group Report (2008), available at http://www.section108.gov/docs/Sec108StudyGroupReport.pdf
[5] 17
U.S.C. § 108(a)(1).
[6]
See also H.R. Rep. No. 94-1733 (Conf.), at 73-74 (1976).
[7] Pub.L.
105-304, Title IV, § 404, Oct. 28, 1998, 112 Stat. 2889.
[8] Section 108 Study Group Report, supra note 4, at 100.
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