Our Own Section of the Copyright Act: Section 108

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·         Up to three copies of an unpublished work owned by the library for deposit in another library or for preservation.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 21^st 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.

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[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.



Down Memory Lane with Terry Long

by Suzanne Corriell

 

 

 
As E. Terry Long celebrates 40 years as an employee of the Commonwealth this October, she also celebrates 30 years with VALL. As a Librarian at the Virginia State Law Library, Terry was one of the founding members of VALL in 1984, helping it develop from a casual network of librarians who would gather over lunch into an official organization, and then into a chapter of AALL in 1998.

One of her most vivid memories of VALL was being in charge of local arrangements with the joint VALL/SEAALL meeting held in Richmond in 1995; at the time, she was serving as Vice-President/President-Elect of VALL (and de facto Chair of the Program Committee). Though she had prior experience in volunteering with the Junior League, serving on the board and chairing committees, working with local arrangements for the SEAALL meeting and conference was an incredibly intense volunteer role with a professional organization – and she had a good time! “I have a deep appreciation for the professional staff at AALL – putting on a meeting of that size is a huge undertaking. A lot goes into it.”

VALL has played a strong role in Terry’s professional development, helping her network with a variety of people; and in our profession,people are of immeasurable value. “We all benefit from knowing more about each other and helping each other out. Helping people, that’s what librarians are all about. I’m not a nurse because I can’t stand blood, but librarianship is a helping profession. Just hopefully not in a bloody situation.” 

To her, the secret to VALL’s success – in addition to inexpensive dues - is getting peopleinvolved in the organization. She suggests that small groups of members get together a few times a year in their own regions, harkening back to VALL’s roots. “VALL is a richer organization with a varied,active membership. Everyone should participate – it enriches the organization.”

 



AALL Hackathon

by Jennifer Gonzalez

 

 

For the 2014 AALL Annual Conference, I was fortunate to attend the first-ever AALL Hackathon. A Hackathon is an event where technology-focused people such as developers and designers meet to collaborate on new projects. For the AALL event, these technologists worked with subject specialists (law librarians) who have specific, in-depth knowledge in an area that is under-represented on the Internet.

At the beginning of the day, a representative from sunlight.org and the Census Bureau spoke about the importance of these types of projects and how much good they can do. Bringing together people who have the ideas (law librarians) and the people who can make it happen
(technologists) is a collaboration that can result in the creation of projects to solve problems.

Once the motivation was in place, groups were formed based on people’s interests. Some people came into the project knowing exactly what they wanted to pursue and most groups were formed around those ideas. Projects had to be identified quickly so that work could begin
immediately. Once the work began, it continued throughout the day in a very informal setting. Unfortunately, there was a shortage of technologists, so some groups of specialists adapted and made plans for what they would do once they had the resources to pursue a project. In upcoming years, this type of event might attract more people, especially if the event is held in a larger city.

At the end of the day, three judges evaluated presentations by each group and made comments before giving out the placements and grand prize. Projects addressed state materials and decisions in special education advocacy, consolidating and organizing state administrative
codes, working with the AALL inventory, improving a particular state’s search functions by creating a proxy search, and several more. The judges identified themes that were common across all of the projects. These themes included crowd-sourcing, the need for participants from all states for collaboration, accessibility, archiving, increasing functionality, open source (free, public access), the desire to inspire other projects, and adding value to legal information.

It was a fantastic experience and one I hope will become a staple in the AALL Annual Conference.



President's Message

Hello, VALL members! I hope you all had a wonderful summer. My favorite time of the year is finally arriving, and there is much going on with VALL that I’d like to share with you. 

VALL at AALL

There was a good contingent of VALL members who attended the AALL Annual Meeting in San Antonio, Texas last July. We held our summer lunch meeting at Paesano’s on the Riverwalk.

 

Also during the conference, we had a VALL chapter table on display at the Exhibit Hall.

 

 

Thanks to our Public Relations Committee for having created special VALL 30^th Anniversary buttons made to give to the exhibit hall visitors.

 

Overall it was a great showing of VALL at AALL this year (Thanks to Stephanie Miller for the pictures)!

 

Memory Book

There is still time to share your memories with the 30^th Anniversary Committee for inclusion in the VALL Memory Book. As an incentive, all members who submit a memory for the book will automatically be placed in a drawing to win a $25 gift card from Barnes & Noble. You can send your VALL memories to Jane Harrison (jharrison@hunton.com) or Sally Wambold (swambold@richmond.edu).

 

Strategic Planning & Communications Committees

There are two projects of note that are currently ongoing. The first is the work of VALL’s Strategic Planning Committee. A mission statement has already been implemented, with a proposed strategic plan to be discussed by the Executive Board. There will be more news to follow. Thanks to the planning committee, under Chair Andrew Winston, for its hard work in creating an essential strategic plan for VALL.

 

The other project involves the Communications Committee, which is currently working to strengthen its communication to its members. As you may have already seen, the association blog, VALLTalk, has already gone through some revisions, with more to come. The plan is to improve the blog and possibly combine it with the VALL Wiki to create one integrated association blog and website. Communications Committee Chair Evelyn Campbell has been working hard with a focus group to identify those areas of communication improvement. The committee would appreciate any feedback by VALL members on the changes.

 

Fall/Annual Meeting

 

I am very excited about our upcoming Fall Meeting, to be held at Hunton and Williams LLP in Richmond on Friday, October 10. We will be hosting a special visitor and speaker: AALL Vice President Keith Ann Stiverson. She will talk about the work that the AALL Executive Board has been doing this year.

 

In addition to Keith Ann, we will have two interesting talks. Sherwin Siy, from Public Knowledge (https://www.publicknowledge.org/), will discuss net neutrality and the implications for first sale and copy ownership in the digital environment. Sally Wiant, from the Washington & Lee University School of Law, will speak about 3D printing and the intellectual property issues that arise from this new medium.

 

Finally, we have two special events planned right after the meeting. First, interested attendees will tour the Virginia State Law Library (which is where I happen to work), located in the Supreme Court of Virginia, and just a short walk from Hunton & Williams. Afterward, we will have a reception for Keith Ann at The Tobacco Company, also located near Hunton & Williams. The reception will be a great opportunity to meet Keith Ann in a more social setting. If you plan to attend the meeting, I do hope that you will be able to stay after and join us at one or both of these special events.

 

The meeting program and registration form can be found here, where you can print and fill out the form. Please note that you have until Friday, October 3 to register. You can send your completed registration form (or questions about the meeting) to Programs Committee Chair Stephanie Miller (millersc@wlu.edu).

 

Well, I think that is all for now. I hope to see you all at our Annual Meeting next month. Have a great fall season!

 

 Ben Almoite

 

VLA Council Meeting Sept 12, 2014

by Terry Long

 

• Jobline is profitable which indicates more jobs are available.
• Institutional memberships have increased.
• An audit was recently conducted of VLA’s finances and no irregularities were found. An audit will be conducted every three years.
• Richmond Convention Center will be the site of the 2015 annual meeting.
• The Executive Committee has been discussing the future of the publication, Virginia Libraries.
• Though VLA is not a member of Southeastern Library Association, they are exploring ways to partner with them on programing.
• ALA has reaffirmed its stance on net neutrality.
• Registration for VLA’s annual meeting is progressing nicely.
• Speakers at this year’s annual meeting are: Dr. Michael Stephens, writer of the monthly Library Journal column “Office Hours” and assistant professor at San Jose State University’s School of Information, will speak at the opening session on Thursday. Keynote  speaker for Friday is Gene Ambaum, a co-creator of the “Unshelved” comic.
• Phil Abraham, VLA’s lobbyist, will be presented with the George Mason award at VLA’s annual meeting. This award is not always given each year;  rather , it is given when appropriate, to a librarian or an individual “distinguished for advocacy of libraries and/or informationaccess”… [In years past Phil has helped VALL with issues involving the General Assembly.]
• The Scholarship Committee is accepting baskets for their raffle at the annual meeting.
• New librarians in Richmond area will gather at Hardywood Park brewery for a social on October 2^nd.
• Association of College and Research Libraries is hosting a webinar on making effective presentations on September 23^rd. It will be archived on VLA web site.
• The next para-professional forum will be held May 17-19, 2015 at the Doubletree Hotel in Chesterfield.

 

VALL Through the Eyes of the President

by Jane Harrison

Ben Almoite, Librarian at the Virginia State Law Library in Richmond, Virginia, has already had a full professional calendar this year. He attended the American Association of Law Libraries (AALL) Leadership Academy in Oak Brook, Illinois in April – thanks to assistance from a VALL Grant; and he attended AALL’s Annual Meeting and Conference in San Antonio, Texas in July.

So how did Ben first find out about VALL? Well, he “Googled it”! In 2011, Ben was relocating to Richmond from Washington, DC, where he was a law firm reference librarian, and active in the Law Librarians’ Society of Washington D.C. Wanting to see if there was a chapter of AALL in the Richmond area, he did a quick search on Google. He was delighted to find VALL. Three years later, Ben now wears the president’s hat.

Among the things Ben is excited about this year is seeing VALL celebrate its 30^th Anniversary. “Thirty years as an association is a long time – a great achievement. I am honored to be the VALL president during this milestone year,” Ben said.

The 30^th Anniversary Committee has invited all VALL members to share their memories, which will be compiled in a “VALL Memories” book. So, what has been Ben’s most memorable moment as VALL president so far? “Definitely holding my first executive board meeting back in June. I had never ran a formal meeting before, let alone worry about putting together a meeting agenda, facilitating discussions and putting issues to a vote. For me it was certainly a memorable experience.”

Ben feels that VALL has been a huge influence in his professional development as a law librarian. “Being a member of VALL has given me the opportunity to keep in touch with trends in law librarianship, legal research and teaching. It has also allowed me to meet so many colleagues – both locally and nationally - and to use them as an occasional sounding board.”

During his tenure as VALL president, Ben wants to see an increase VALL’s visibility as a chapter. During the AALL 2014 meeting in San Antonio, VALL had a table set up in the Exhibit Hall, and the Public Relations Committee had special “30^th Anniversary” VALL buttons made, to be distributed to conference attendees. In addition, AALL Vice President Keith Ann Stiverson will be visiting and attending the Fall Meeting in Richmond in October.

He also wants VALL to continue to be an inclusive association, and encourages members from all regions of the Commonwealth to get involved with VALL. “Even though our members are widespread throughout the state, I want them to know that we are all ‘one’ through this association; and we need their involvement and participation in order for VALL to continue to be a strong organization.”

“Volunteering some time as a member of a VALL committee is a great way to get involved,” said Ben. “You can really make a difference without much of a time commitment.” “Another way to participate is following VALL in social media, where members can share news through a Community page on Facebook, and a Group page on LinkedIn.”

Finally, as to VALL’s role in the future of the legal community, Ben hopes that members will continue to write articles in the Virginia Lawyer, as well as promote VALL to other colleagues in the workplace.

“I think as long as we continue to show legal professionals who we are and what we do, through our work and contributions, VALL can remain relevant in the Virginia legal community.”

 

Seeking Your VALL Memories!

The 30th Anniversary Committee is seeking your memories of VALL for inclusion in the VALL Memory Book. if you recall, Ben Almoite talked about this in his President's Message, and this was also discussed at the fall meeting at South University.

Submit your memory to Jane Harrison at jharrison@hunton.com or Sally Wambold at swambold@richmond.edu, and your name will be placed in a drawing for a $25 Barnes & Noble gift card.

Come on VALLers, we know you've got memories you want to share!