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Copyright and Fair Use

An overview of copyright, focusing on re-using other people's works in academic contexts

Section 108: Copyright Exceptions for Libraries and Archives

Title 17, section 108 of the U.S. Code permits libraries and archives to use copyrighted material in specific ways without permission from the copyright holder.  This does not replace fair use, which is codified in section 107. Librarians, archivists, and library users can rely on fair use just like everyone else.  In fact, in many cases fair use may apply when section 108 does not.   Section 108 permits libraries and archives to:

  • Make one copy of an item held by a library for interlibrary loan;
  • Make up to three copies of a damaged, deteriorated, lost, or stolen work for the purpose of replacement. This only applies if a replacement copy is not available at a fair price;
  • Make up to three copies of an unpublished work held by the library for the purpose of preservation.  If the copy is digital, it cannot be circulated outside the library;
  • Reproduce, distribute, display, or perform a published  work that is in its last 20 years of copyright for the purposes of preservation, research, or scholarship if the work is not available at a fair price or subject to commercial exploitation;
  • Make one copy of an entire work for a user or library who requests it if the work isn't available at a fair price.

The following restrictions must be observed when appealing to this exception:

  • It applies only to libraries and archives open to the public, or to unaffiliated researchers in a specialized field (OSU Libraries meets this exception);
  • Copies cannot be made for commercial purposes;
  • The copying cannot be systematic (e.g., to replace subscriptions);
  • All copies made under this exception must include a notice stating that the materials may be protected under copyright.

The current version of section 108 was updated with the passage of the Digital Millennial Copyright Act in 1998

Section 108 Spinner

screenshot of section 108 spinner

The Section 108 Spinner from the ALA Office of Information Technology Policy provides a novel way to review the exceptions for your particular situation.

FAQs about Libraries & Copyright

Q. How does copyright relate to digitizing content in libraries?

Q. How does copyright apply to interlibrary loan?

Q, How does copyright apply to course reserves?

 
 
 

 

 

Q. How does copyright relate to digitizing content in libraries?
A. You may occasionally encounter the idea that libraries should "just digitize everything in the library and put it online!"  Alas, this would constitute infringement if the works are protected by copyright and permission was not obtained.  Materials in the public domain may be digitized without permission or restrictions.  Two recent landmark cases related to mass digitization are Authors Guild v. HathiTrust and Authors Guild v. Google.  While the defendants (who digitized copyrighted works) did emerge victorious, it's important to note that they weren't making entire copyrighted works freely available for anyone to read online.  Their uses (creating a searchable database; providing access to the print-disabled), were held to be transformative by the courts, an important in fair use considerations.  Libraries may be able to digitize portions of their collections for specific purposes based on a fair use analysis.

 

 

Q. How does copyright apply to interlibrary loan?

A. Interlibrary loan is permitted under section 108 of the Copyright Act.  Both the lending and the borrowing libraries have specific responsibilities they must fulfill. The Copyright Act lacks guidance on, for example, how many articles from a library may request from one journal in one year.  Copyright holders and libraries tried to agree on these details when drafting the CONTU Guidelines.  Full agreement was never reached, and the CONTU guidelines don't carry the force of law.

 

 

Q, How does copyright apply to course reserves?

A. Lending of physical books held by the library is permitted under the first sale doctrine.  In other instances, such as making copies of articles and checking them out to students, libraries may rely on fair use to justify course reserves.  A recent landmark case related to electronic reserves is Cambridge v. Pattonin which a group of publishers sued Georgia State University for their liberal e-reserves policy.  The courts held GSU to be the prevailing party, finding fair use in the majority of alleged infringements.

 

 

Q. What if an individual or library requests an entire work for private study or scholarship? 

A. It may be appropriate to copy an entire work when requested for private study or scholarship (if it is out of print or can't be obtained at a fair price).  Use this checklist from the Copyright Advisory Office at Columbia to help you determine if a request meets all the requirements.

 

 

Q. Is the library responsible for patrons making photocopies in the library?  Are librarians the "copyright police"?

A. Libraries and their employees are not liable for users making copies in excess of fair use as long as the library displays a notice warning users that content may be protected by copyright.  The text of the copyright notice can be found on p. 20 of Circular 21 from the Copyright Office.

 

 

 

Q. How does copyright apply to library lending? What is the "first sale doctrine" and how does it apply to libraries? Why are the rules for lending e-books different than print books? How does copyright relate to used book sales?

A. The first sale doctrine (section 109[a]) of the Copyright Act) allows owners of a legal copy of a tangible (physical) work to resell, rent, lend, or give away that copy without the copyright owner's permission.  This explicitly permits libraries to lend books from their collections.  It also allows owners of a physical book to resell that book, creating the used book market. 

Purchasers of e-books do not have the same unrestricted rights as purchasers of physical books.  The first sale doctrine came into effect before the digital age.  Congress, courts, and the Copyright Office have been hesitant to extend the first sale doctrine to digital content. Additionally, libraries often license rather than purchase e-books, which is another reason first sale doctrine would not allow them the same freedom as lending physical books.