A Brief History of Library Copyright related to Reproduction and Distribution
The Copyright Act of 1976 included a section on libraries for the first time. This was the “photocopy era” and it was deemed important to codify appropriate practices with respect to copying. Section 108 of the act provided an exception to the exclusive rights of the copyright holder for libraries and archives for specified copying activities under certain conditions. But the pace of technological advance quickly poked holes in the dike that Section 108 had been designed to plug.
Soon after the act was signed into law, libraries began to automate their collections and to use FAX technology for inter-library loan. As scanning technology improved, libraries began to make digital preservation copies, and relied on them for backups. In addition, many scanning projects resulted in an avalanche of digital image collections being put online. As the Internet developed, many collections of Academic reserves were converted to e-reserves. Clearly, amendments were required to address the changing technologies and practices of libraries and archives.
The Digital Millennium Copyright Act of 1998 attempted (unsuccessfully) to improve how section 108 functioned in the new digital environment. Digital copying was permitted for preservation purposes, but such draconian limits were placed on the use of digital copies that the new provisions were not helpful to libraries. In late 2004, the Copyright Office of the Library of Congress convened a broadly representative Study Group to consider how Section 108 might be improved. After meeting for three years, the group could not reach agreement on the major issues, and simply issued a report.
Subsection 108 (h) was added to the Act by the Copyright Term Extension Act. Under this provision, libraries, archives, and nonprofit educational institutions may reproduce, distribute, display or perform a copy of a work for purposes of preservation, scholarship or research during the last 20 years of a published work’s term. To be eligible for this exemption, the library must make sure that a copy of the work cannot be obtained at a reasonable price.
Section 108 not only provides an exception for libraries and archives for preservation of copyrighted works but also permits them to make copies for users under certain conditions. Subsection 108 (d) states that at the request of a patron, a library may make a copy of no more than one article from a periodical issue, one chapter from a book or other collective work. The copy must become the property of the user.
Interlibrary loan (ILL) is also permitted under section 108. Subsection 108(g)(2) states that “…nothing in this clause prevents a library or archives from participating in interlibrary arrangements that do not have as their purpose of effect receipt of copies in such aggregate quantities as to substitute for a subscription to or purchase of a work.” The CONTU interlibrary loan guidelines specify that each year a borrowing library may make five requests from a periodical title going back over the most recent five years (60 months). If the library either owns the title but it is missing from its collection, or if the title is on order, the library does not count that ILL copy in its suggestion of five. If the work is not a periodical, the library may make five requests per year for the entire life of the copyright. The borrowing library must maintain records for three calendar years. The lending library’s responsibility is to require a certification that the request conforms to the guidelines.
Copyright Guidelines for e-Reserves developed by major Universities
Cornell’s further guidelines for in-library and electronic course reserves, which offer more concrete rules and guidance.
Use this handy tool to determine your rights under Section 108.
Section 108 Spinner by the American Library Association
Albanese, Andrew R. Down with E-reserves— Library Journal, 10/1/2007
American Library Association. (2005, December 30). Fair use and electronic reserves (ALA best practices).
Rosedale, J. (n. d.). Copyright information and policies. Electronic Reserves Clearinghouse. Retrieved August 21, 2009