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·         Up to three copies of an unpublished work owned by the library for deposit in another library or for preservation.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