COPYCENSE

A. INTRODUCTION

This edition of CommuniK.™ features the fourth part of a series about copyright law exceptions that are available to libraries, schools, and archives. The article discusses Section 108 of the 1976 Copyright Act, which generally lets libraries and archives make and distribute copies of protected works for preservation and scholarly purposes.

Like Section 109, however, the continued viability of the Section 108 library exceptions is being challenged by a confluence of factors that includes license contracts, digital media, and publisher resistance. Copyright stakeholders met a decade ago to retrofit Section 108 for digital media; those negotiations ended in a stalemate. Now, the Library of Congress has convened a Section 108 Study Group in another attempt to reconcile the broad copyright exceptions libraries and archives receive with the publishing industry’s concerns about decreasing revenues.

This article analyzes the library exceptions through the prism of a common hypothetical scenario. It also discusses the librarian’s due diligence requirements under Section 108, the affect of license contracts on Section 108, and the work of the Section 108 Study Group.

Portions of this article originally appeared in the July/August 2005 edition of Online magazine. It has been updated substantively, and includes new “Resources” and “Metadata” sections.

Editor’s Note: This article was updated on Feb. 22, 2006 in two ways. First, additional articles have been added to the RESOURCES section. Second, additional information about the applicability of Section 108 to for-profit libraries has been appended to Section D1.

B. A TYPICAL LIBRARY COPYING SCENARIO

Consider this scenario. A patron asks a librarian to download a journal article from a database. The library has a valid license agreement for the database. This chain of events may look something like this:

The patron has made similar requests in the past. Although you have no clear proof, you suspect the patron has copied printouts of the article and sent copies of the printout to people outside the organization (including colleagues and clients).

You also suspect that copyright law may allow one part of this chain of events, but that the you or the library may be liable for infringement for another part of this chain. You’re unsure, however, where legality morphs into infringement.

Welcome the murky world of library copying in the digital age, governed by Section 108 of the Copyright Act.

C. SECTION 108 IN A DIGITAL AGE, PART 1

Generally speaking, Section 108 lets libraries and archives copy and distribute protected works to their patrons and other libraries. But as this article is being written, Section 108 faces a questionable future. Passed by Congress at a time where when information was created in analog and tangible formats, copyright owners and libraries have spent a decade sparring over Section 108’s boundaries in today’s wholly digital content environment.

One previous attempt to retrofit Section 108 to accommodate a digital world failed miserably. Beginning in 1994, at the Conference on Fair Use (“CONFU”), the content industry and library representative organizations tried to “negotiate guidelines for the fair use of electronic materials in a variety of nonprofit educational contexts.” By 1996, it was clear that the two sides would be unable to come to an acceptable agreement.

(More information about the CONFU process is available from the University of Texas.)

Today, the future of Section 108 remains a hotly debated topic. Recently, there have been several news reports that the Association of American Publishers, a publishing industry lobbying group, is considering whether to sue libraries over their use of electronic reserves. Additionally, the Librarian of Congress has reconvened many of the folks from the CONFU discussions to try to investigate Section 108 once more. The purpose of the Section 108 Study Group is “to conduct a reexamination of the exceptions and limitations applicable to libraries and archives under the Copyright Act, specifically in light of the changes wrought by digital media.” I will write more about this study group near the end of this article.

Given the changes swirling around Section 108, any answer to our opening hypothetical is … well, hypothetical. Still, there is a valid law currently on the books that addresses the extent to which libraries and archives can copy and distribute works without having to receive permission from the copyright owner. Let’s delve into Section 108 and figure out how it works.

C. COMPARING THE LIBRARY EXCEPTIONS WITH FIRST SALE

Since both Section 109 and Section 108 provide copyright limitations from which libraries benefit, I think a comparison is warranted. (Section 110, which I analyzed in an article earlier this month, may involve libraries indirectly, but its focus is centered more on schools than libraries.)

The first major distinction between Section 109 and Section 108 is simple: Section 109 is a copyright limitation that is eligible to almost everyone, while the copyright limitations in Section 108 can be used only by libraries and archives.

The second distinction between the two statutes is a bit more subtle. Section 109 gives libraries the ability to lend copyrighted items to the public. Specifically, Section 109 allows libraries to lend entire items to the public (i.e. an entire book, a DVD), as opposed to mere pages of that book. Further, the first sale doctrine in Section 109(a) serves as an exception only to the copyright owner’s exclusive distribution right as that right is articulated in Section 106(3). As I hope last week’s article made clear, libraries cannot use the first sale doctrine to limit any Section 106 right other than the distribution right.

Section 108, on the other hand, works a bit differently. Section 108 allows libraries and archives the ability to copy and redistribute portions of copyrighted works for archiving and interlibrary loan purposes. Said another way, Section 108 deals with portions of protected works (as opposed to whole works), and allows copying and redistribution (as opposed to distribution only).

(In certain instances, Section 108 also allows a library to copy an entire item and distribute that whole item to a patron, another library, or store that item for archival purposes.)

Now that we’ve established the basic differences between Sections 109 and 108, let’s look at the eligibility criteria for Section 108.

D. ELIGIBILITY AND PREREQUISITES

1. Libraries Only, But What Kind of Libraries?

In the previous section, we established that only libraries and archives can use Section 108 as a copyright exception. As a practical matter, neither Section 108 nor Section 101 (the definitions section for the Copyright Act ) formally define “library” or “archive.”

Further, the Copyright Act (“Act”) does not indirectly define “library” or “archive” through qualification. If you recall, Section 110 distinguishes between a “ “nonprofit educational institution” and an “accredited nonprofit educational institution,” then defines “accredited” near the end of the statute. Hence, “library” and “archive” should have their normal, everyday meaning.

What is the point of this linguistics exercise? Since the Copyright Act fails to define a library, it leaves open an important question: does a corporate library qualify as a “library” for the purposes of Section 108? Since the Act does not define “library” –– one reasonably could presume that a corporate library is eligible to use Section 108.

I raise this point because a corporate librarian who read my Online article about Section 108 challenged my opinion that corporate libraries probably were ineligible to use the Section 108 limitation. It was a reasonable challenge, and since at least some of CopyCense’s readers work in corporate libraries, I think this point is worth investigating.

(Granted, this will seem like “inside baseball” and, thus extremely boring. But given the current issues involving libraries and copyright, I urge your patience.

And to investigate, we must look to the statute. The pertinent part of Section 108(a) says the following:

[It] is not an infringement of copyright for a library or archives … to reproduce no more than one copy or phonorecord of a work … or to distribute such copy or phonorecord, under the conditions specified by this section, if —

(1) the reproduction or distribution is made without any purpose of direct or indirect commercial advantage; [and]

(2) the collections of the library or archives are (i) open to the public, or (ii) available not only to researchers affiliated with the library or archives or with the institution of which it is a part, but also to other persons doing research in a specialized field.

(Emphasis added)

I think it’s reasonable to assume that when John or Jane Doe thinks about the typical library, two thoughts immediately come to mind: (a) nonprofit, and (b) open to the public. Consistent with the John Doe sentiment, Section 108(a) offers a similar view. (Note that Section 108(a) is the only subsection of this statute to define or qualify the terms “library” or “archive.”)

There are two reasons why I think corporate libraries are excluded from Section 108 eligibility. First, corporate libraries typically are not nonprofit institutions. I don’t think anyone can reasonably argue that the copying and distribution activities that corporate libraries conduct are “without any purpose of direct or indirect commercial advantage.” The primary reason corporate libraries exist are to cull information for businesspeople, who then use that information in decisions they hope will turn a profit for the company. In my mind, that is a “direct or indirect commercial advantage.”

Further, corporate libraries are never “open to the public” or “available … to researchers affiliated with the library or archives [and] also to other persons doing research in a specialized field.” Seriously, have you tried getting into a corporate library recently? You’re lucky if security allows you to leave without a police escort.

One of the main arguments to the contrary – that corporate libraries are allowed to use the Section 108 exception – cites a Congressional report (H.R. Rep. No. 94-1476, 94th Cong., 2d Sess. 52-53 (1976)) that says “a library that makes its collection available to others by interlibrary loan (“ILL”) or otherwise meets the ‘open and available’ requirement.” (See the Guidelines on the Fair Use of Copyrighted Works by Law Libraries, published in 2001 by the American Association of Law Libraries, for more information.)

My response is twofold. First, that House of Representatives report is three decades old. I am certain that copyright-holding publishers will argue that there have been sufficient technology and commercial changes in the intervening period such that the narrow interlibrary loan exception for “open and available” does not apply.

Second, that counterargument still does not address the fact that most of a corporate library’s activities are done for “direct or indirect commercial advantage.”

Given the language of the statute and the other indicators, I still conclude that corporate libraries probably do not qualify to use the Section 108 copyright limitation. Therefore, for the remainder of this article, I will presume that “library” or “archive” refers to an nonprofit, academic, public, or government library or archive.

Update & Editor’s Note: In light of a recent correspondence with Michael K. Reddy, a colleague with whom I have worked previously on the Copyright Committee of the American Association of Law Libraries, the editors of CopyCense believe it is necessary to update this article to add some new information to the debate over whether Section 108 applies to corporate or for-profit libraries. Unfortunately, the information CopyCense found does resolve the debate conclusively.

In a footnote to a May 2002 article about the applicability of fair use (Section 107) and the library exceptions (Section 108) in the private sector, author James S. Heller quotes a portion of the legislative history to Section 108 to support the notion that for-profit and corporate libraries can use Section 108 as a copyright limitation. Heller, a former chairman of AALL’s Copyright Committee, quotes the following language from H.Rep. 94-1476, at 75 (1976)

Isolated, spontaneous making of single photocopies by a library in a for-profit organization, without any systematic effort to substitute for photocopying for subscriptions or purchases, would be covered by section 108, even though the copies are furnished to the employees of the organization for use in their work. Similarly, for-profit libraries could participate in interlibrary arrangements for exchanges of photocopies, as long as the production or distribution was not ‘systematic’. These activities, by themselves, would ordinarily not be considered ‘for direct or indirect commercial advantages’, since the ‘advantage’ referred to in this clause must attach to the immediate commercial motivation behind the reproduction or distribution, rather than to the ultimate profit-making motivation behind the enterprise in which the library is located. On the other hand, section 108 would not excuse reproduction or distribution if there were a commercial motive behind the actual making or distributing of the copies, if multiple copies were made or distributed, or if the photocopying activities were ‘systematic’ in the sense that their aim was to substitute for subscriptions or purchases.

On the other hand, Mary Minow, editor of LibraryLaw Blog wrote the following response in March 2005 to a question about whether Section 108 applies to corporate or for-profit libraries.

[T]he issue arises as to whether a for-profit library is a Section 108 library. The Copyright Office Circular 21 (.pdf, 105 KB) discusses libraries and archives in profit-making institutions. The legislative history shows that the Senate and House differed on this point.

The Conference Report says that libraries in for-profit institutions can use Section 108 for interlibrary loan and isolated, spontaneous single copying, so long as they meet the rest of Section 108’s criteria, including not making copies for commercial motivation.

The Senate Report essentially says that 108 applies only to nonprofit libraries. It says that the “without any purpose of direct or indirect commercial advantage” language is intended to preclude libraries in profit-making organizations from making copies in furtherance of the organization’s commercial enterprise. Note: If Sect. 108 fails, you can always see if the use might qualify as Fair Use under Sect. 107.

The House Report says that a purely commercial enterprise can’t just call itself a library and then use 108. However, it finds that 108 can be used to allow isolated, spontaneous making of single copies by a library in a for-profit organization. For-profit libraries can use interlibrary loan so long as the reproduction or distribution is not “systematic” (a substitute for subscriptions or purchases) and the copies are not for immediate commercial motivation.

My own experience in talking with various corporate libraries is that many if not most take advantage of Sect. 108.

CopyCense’s editors then went back and looked at Circular 21 (.pdf, 105 KB), issued by the U.S. Copyright Office, and found the following relevant passages.

Senate Report: Discussion of Libraries and Archives in Profit-Making Institutions

The limitation of section 108 to reproduction and distribution by libraries and archives “without any purpose of direct or indirect commercial advantage” is intended to preclude a library or archives in a profit-making organization from providing photocopies of copyrighted materials to employees engaged in furtherance of the organization’s commercial enterprise, unless such copying qualifies as a fair use, or the organization has obtained the necessary copyright licenses. A commercial organization should purchase the number of copies of a work that it requires, or obtain the consent of the copyright owner to the making of the photocopies.

…

House Report: Discussion of Libraries and Archives in Profit-Making Institutions

Under this provision, a purely commercial enterprise could not establish a collection of copyrighted works, call itself a library or archive, and engage in for-profit reproduction and distribution of photocopies. Similarly, it would not be possible for a non-profit institution, by means of contractual arrangements with a commercial copying enterprise, to authorize the enterprise to carry out copying and distribution functions that would be exempt if conducted by the non-profit institution itself.

The reference to “indirect commercial advantage” has raised questions as to the status of photocopying done by or for libraries or archival collections within industrial, profitmaking, or proprietary institutions (such as the research and development departments of chemical, pharmaceutical, automobile, and oil corporations, the library of a propriatary [sic] hospital, the collections owned by a law or medical partnership, etc.).

Isolated, spontaneous making of single photocopies by a library in a for-profit organization, without any systematic effort to substitute photocopying for subscriptions or purchases, would be covered by section 108, even though the copies are furnished to the employees of the organization for use in their work. Similarly, for-profit libraries could participate in interlibrary arrangements for exchange of photocopies, as long as the reproduction or distribution was not “systematic.” These activities, by themselves, would ordinarily not be considered “for direct or indirect commercial advantage,” since the “advantage” referred to in this clause must attach to the immediate commercial motivation behind the reproduction or distribution itself, rather than to the ultimate profit-making motivation behind the enterprise in which the library is located. On the other hand, section 108 would not excuse reproduction or distribution if there were a commercial motive behind the actual making or distributing of the copies, if multiple copies were made or distributed, or if the photocopying activities were “systematic” in the sense that their aim was to substitute for subscriptions or purchases.

…

Conference Report: Discussion of Libraries and Archives in Profit-Making Institutions

Another point of interpretation involves the meaning of “indirect commercial advantage,” as used in section 108 (a)(1), in the case of libraries or archival collections within industrial, profit-making, or proprietary institutions. As long as the library or archives meets the criteria in section 108(a) and the other requirements of the section, including the prohibitions against multiple and systematic copying in subsection (g), the conferees consider that the isolated, spontaneous making of single photocopies by a library or archives in a for-profit organization without any commercial motivation, or participation by such a library or archives in interlibrary arrangements, would come within the scope of section 108.

In summary, the Senate report says corporate libraries do not qualify for Section 108; the House report strongly suggests that a corporate library would qualify for Section 108 if the copies were made in “isolated” circumstances; and the Conference report says a corporate library would qualify for Section 108 if that library “meets the criteria in section 108(a).” Among that criteria in Section 108(a) is a requirement that “the collections of the library or archives are (i) open to the public, or (ii) available not only to researchers affiliated with the library or archives or with the institution of which it is a part, but also to other persons doing research in a specialized field.”

There are legitimate arguments that support corporate libraries’ eligibility for and disqualification from the Section 108 limitation. And given this new information, it seems like we were too hasty in our initial assessment that corporate libraries do not qualify for the Section 108 limitation simply because “most of a corporate library’s activities are done for ‘direct or indirect commercial advantage.'”

Despite the additional information, however, we see no reason to change our initial conclusion that “corporate libraries probably do not qualify to use the Section 108 copyright limitation.” CopyCense will be attending the Section 108 hearings in Washington, DC on March 16, and we hope that this issue is raised and discussed. End of update.

2. Certain Works Cannot Be Copied

Section 108 is not a ticket to an unlimited buffet of content. Specifically, Section 108(i) says that musical works, pictorial works, graphical works, sculptural works, motion pictures, and audiovisual works generally cannot be copied for patrons or sent via interlibrary loan. (Note that the Copyright Act defines most of these works in Section 101.)

Consistent with the way copyright law works, this rule is subject to some exceptions. First, any audiovisual works that deals with news can be copied for patron or ILL use. Second, a library may copy pictures or graphs that are “published as illustrations, diagrams” if they are included as parts of works that otherwise can be copied under Section 108(d) or (e), which deal with patron requests for personal copies.

Third, all works – including those that are prohibited by Section 108(i) – can be copied if the purpose for making the copy is preservation under Section 108(b) or Section 108(c).

3. Institutional and Worker Protection

Section 108 applies not only to libraries as institutions, but to the library employees themselves. The coverage for librarians is another distinctive feature of Section 108; most of the other limitations are written to cover only the institutions, not those working for the institution.

There are two important caveats to Section 108(a). First, the library employee must be performing duties that are within the scope of his or her employment. A library employee who copies or distributes protected works for personal purposes is not protected under Section 108. Further, a non-employee who copies protected works – even if that copying occurs on library premises – is not protected under Section 108. (Of course, such actions may be protected under a separate limitation.)

The second caveat is that the librarian protections in Section 108 come with a tradeoff: the librarian must exercise some level of due diligence in protecting copyrighted works from illegal reproduction or distribution. This is an unusual burden, and I will address it presently.

4. No Systematic Copying

Library representative organizations that lobbied for Section 108 were able to create a large series of copyright exceptions. In exchange, copyright owners wanted some assurances that libraries could not use this statute to sanction widespread copying that could harm sales for their products. Congress codified the compromise in Section 108(g).

Generally, Section 108(g) restricts library copying to “isolated” and “unrelated” instances, and establishes a two-part test that determines whether a library can use this limitation. First, if a library or a library employee knows (or has reason to know) that it is “engaging in the … concerted [copying] or distribution of multiple copies … of the same material, whether made on one occasion or over a period of time,” then the library loses the exemption and may be subject to infringement liability. This is the “due diligence” requirement I mentioned earlier.

Second, the library also can lose its Section 108 exemption if it “engages in the systematic reproduction or distribution of single or multiple copies.” To return briefly to the hypothetical I posed at the beginning of the article, Section 108(g) is relevant to that analysis. More on this later in the article.

Having established the prerequisites and context for using Section 108, I’ll now analyze what the statute says.

E. LIBRARY COPYING FOR PRESERVATION

1. The Basic Rules

Generally, Section 108(a) allows a library or archive to make a single copy of a protected work (including a “phonorecord”). Section 108(a) also allows a library or archive to distribute that copy.

Both rules in Section 108(a) are subject to three conditions. I already have discussed the first two conditions. First, the library must make the copy or distribution without any purpose of “direct or indirect commercial advantage.” (“Indirect commercial advantage” may occur, for example, when a library copies and distributes a journal article repeatedly instead of buying additional copies of that article.)

Second, the collections of the library or archive must be open to the public or available to researchers in the field.

The third condition requires that any copy or distribution of the protected work must include either (a) a copyright notice or (b) if the copy doesn’t contain a copyright notice, a “legend stating that the work may be protected by copyright.”

As with most provisions of copyright law, Section 108(a) is subject to important qualifications. These qualifications can be found in Section 108(b) and Section 108(c), both of which concern a library’s ability to make preservation copies.

2. Rules for Published Works – Replacement

Above and beyond the general rule in Section 108(a), Section 108(c) and Section 108(b) outline specific rules that govern a library’s copying of published and unpublished works. Since many of the works a library or archive handles will be published, I’ll first discuss the specific rules governing library copying of published works.

Section 108(c) allows a library to make up to three copies of a published, protected work (including a “phonorecord”) under certain conditions. First, the copying only can occur if the original Is “damaged, deteriorating, lost, stolen” or technologically obsolete.

(Section 108(c) defines obsolete as a situation in which “the machine or device necessary to render perceptible a work stored in that format is no longer manufactured or is no longer reasonably available in the commercial marketplace.”)

Second, the library has determined after a reasonable effort that it could not buy a replacement copy at a fair price.

Third, a digital copy of a published work cannot be distributed as a digital copy, nor can it otherwise be made available to the public in a digital format. Let’s set these rules to an example.

Let’s assume that the library has an old recording of a Paul Robeson speech. Assume further that (a) the speech and the recording both remain under copyright protection (i.e. not in the public domain), (b) that the recording is on an old acetate record that plays at 78 RPM, and (c) that a librarian has found no copies available in print or through the ILL system.

Applying only the first two conditions of Section 108(c), the library can make up to three copies of the Paul Robeson recording because (a) a 78 RPM acetate recording is reasonably obsolete (and, in fact, may not even play after the library makes its replacement recording); and (b) the library reasonably has determined the recording is irreplaceable.

Now let’s tackle the third condition. Assume further that one of the library’s three copies is a digital sound file in .AIFF format, while the other two copies are on analog tape. The third condition of Section 108(c) says that the library may not make the .AIFF available to the public, nor can it distribute the .AIFF file outside the library. Only the analog tape copies may go out to the public or outside the library.

3. Rules for Unpublished Works – Preservation

The rules for unpublished works are slightly different. Under Section 108(b), a library or archive can make up to three copies of an unpublished work, and distribute those copies, under certain circumstances. First, the copies must be made exclusively for preservation or security purposes. Second, the source work must be in the collection of that library that has made the copies.

Third, a digital copy of an unpublished work cannot be distributed as a digital copy, nor can it otherwise be made available to the public in a digital format. An example may help clarify the concept.

Let’s assume that a professor has written an essay, but the essay has not been published. Assume further, that the essay is available in paper, and the professor gives the essay to the library in a paper format. Pursuant to Section 108(b)(1), the library can make up to three copies of this paper because (a) the paper is unpublished, and (b) the paper is in its collection (because the professor gave the paper to the library).

Let’s take it one step further. Assume that at least one of the three copies the library made are in Adobe Acrobat format, in other words a digital copy. Pursuant to Section 108(b)(2), the library could not make the .pdf of the professor’s unpublished paper available to the public outside the library, nor could it distribute the .pdf copy. Instead, the only copy that could go outside the library or be made available to the public is one of the remaining two paper copies.

F. LIBRARY COPYING FOR ACADEMIC OR STUDY PURPOSES

Librarians are often asked to copy articles for patrons such as students, professors, attorneys, and company executives, so let’s revisit our initial scenario. We have a patron requesting that the organization’s librarian download a journal article that is part of a database. The library has a license agreement with the database vendor. The librarian suspects the patron has reproduced printouts from previous requests and sent the copies to recipients outside the organization.

When is such copying and distribution reproduction allowed? Is it possible that copyright law allows one part of this transaction, but not another part? For guidance on this issue, librarians should look to Section 108(d) and Section 108(e).

1. Copying Journal Articles for Patrons

Section 108(d) generally applies to instances where the patron wants one article from a journal or other periodical. It outlines a process to determine whether the librarian in our scenario may be able to make the copy for the patron.

Pursuant to Section 108(d), a librarian can make a single copy of a protected work for a patron if four conditions are met:

1. the item is already in the collection of the library or archives;
2. the copy becomes the patron’s property;
3. the library “has had no notice that the copy … would be used for any purpose other than private study, scholarship, or research;” and
4. the library includes a prominent copyright notice on its order form and where the copy orders are taken.

Let’s return to our hypothetical. Our fact pattern indicated that the librarian (a) knew that the patron repeatedly had asked the library for the same article on several occasions, and (b) suspected that copies of the article were “being used for [a] purpose other than private study, scholarship, or research.”

Since Section 108(d) invokes a due diligence requirement – the library must have “had no notice that the copy … would be used for any purpose other than private study, scholarship, or research” – and the library suspects that something is fishy, I would conclude that the librarian cannot use Section 108 as a copyright exception.

Practically speaking, it is rather common that a demand from a superior (“Get me this article right now!”) will clash with the due diligence requirements in Section 108. I will address this tension later in this article.

2. Copying Whole Works for Patrons

If a patron wants not just an article from a periodical but most or all of a work, then the librarian must use Section 108(e) instead. Section 108(e) generally applies whenever a patron wants to have a copy of an entire protected work, or a “substantial” part of that work.

Pursuant to Section 108(e), a librarian can make a single copy of a entire protected work (or a substantial part thereof) for a patron if five conditions are met:

1. the item is already in the collection of the library or archives;
2. the copy becomes the patron’s property;
3. the library “has had no notice that the copy … would be used for any purpose other than private study, scholarship, or research;”
4. the library includes a prominent copyright notice on its order form and where the copy orders are taken; and
5. the library reasonably concludes after a fair investigation that a copy of the work cannot be obtained at a fair price.

G. RULES ON INTERLIBRARY LOAN

Section 108 does not have a specific section devoted to interlibrary loan lending (ILL). Instead, the Copyright Act implies authority for ILL activities from a cross-section of three separate provisions:

1. Section 108(d), which governs a library’s ability to copy a journal article;
2. Section 108(e), which governs a library’s ability to copy most or all of a protected work; and
3. Section 108(g), which prohibits “concerted” or “systematic” copying or distribution of protected materials “in such aggregate quantities as to substitute for a subscription to or purchase of a work.”

For more guidance on ILL arrangements, please refer to the “CONTU Guidelines on Photocopying under Interlibrary Loan Arrangements,” which are reproduced by the Coalition for Networked Information.

H. SECTION 108 IN A DIGITAL AGE, PART 2: CONTRACTS, DIGITIZATION, AND THE LIBRARY COPYING EXCEPTIONS

Congress drafted Section 108 in the era of analog media, and copyright stakeholders have been unable to settle its application to digital media. Some database providers or content owners argue that Section 108 does not apply to their digital holdings. (This is what the CONFU negotiations were all about.)

I see no statutory basis for that opinion, and therefore see no reason why Section 108 does not apply to digital media. Further, I feel that not using Section 108 with digital media indirectly reinforces the position of copyright holders that Section 108 cannot be used with digital media.

Note, however, I said I see no statutory reason why Section 108 does not apply to digital media. As we all know, digital media is more likely to be governed by contract instead of by statute. As I discussed in my first sale article, contracts can curb the effectiveness of that limitation. According to David Nimmer, contractual obligations also can curb the Section 108 exception.

In his treatise, Nimmer on Copyright, Nimmer states that any contract that contains terms or conditions which limit or eliminate a library’s ability to make copies under Section 108(a) or Section 108(b) will override those exceptions. Put another way, if the library has entered into a contract (including a licensing agreement) for access to information, then the contract terms — not copyright law — govern the how the information can be used and accessed. Copyright law almost becomes moot.

This concept is critical for two reasons. First, many libraries are leasing electronic material through a license agreement instead of buying paper or analog materials. Just last year, the UCLA library system (one of the country’s largest academic library systems) announced that it would discontinue buying print materials and exclusively purchase electronic materials.

(As an aside, I wonder if the UCLA librarians discussed the possibility that this move would eliminate their ability to make preservation copies under Section 108. If they did, I hope they addressed this issue in the license agreements with their electronic suppliers.)

Second, this concept could greatly affect digitization programs. Increasingly, businesses are generating tremendous amounts of electronic information. Much of this information resides on corporate servers, databases and silos. Further, regulatory compliance laws such as HIPAA and Sarbanes-Oxley may mandate the retention of this information. Much of this information, however, is created or distributed through vendors with which client businesses have license agreements.

Here’s an important question: if a client firm decides to start a digitization program in order to preserve this electronic information, will their vendor license agreements let them do so? Another question: if the license agreement is silent, who owns the information, the vendor or the client company?

If this scenario involved an outright sale of information to a client or client library, the analysis is a tad easier, because it would be clear that both Section 109 (first sale) and Section 108 (library copying) may apply. Once a license agreement governs the transaction, however, the analysis changes, and the contract’s terms (or lack thereof) may render moot both exceptions.

Specifically as to digitization programs, I anticipate the following retort: “Well, what about Google’s Book Search program?” That is a different situation because Google is (a) working with libraries, (b) to digitize books, and (c) largely relying on a fair use argument. But if Google were dealing with electronic information that was created or delivered pursuant to a contract, there is a reasonable argument that even fair use may not apply.

While much of this is hypothetical, the core concept is important. If the license contract does not allow for Section 108 exceptions – and most don’t – then every issue I have discussed here is moot.

I. DUE DILIGENCE, CONFLICT & CYA

Once more, let’s return to the hypothetical with an eye toward discussing the inherent tension due diligence and everyday librarianship.

If a librarian pulled the same copy of the same article from the same database (parts A and B of the graphic), and repeatedly gave that article to a same patron, the librarian should consider this pattern to be unusual. Perhaps there is nothing to the series of patron requests; it is possible that the patron simply is a mindless nitwit. However, repeated requests for the exact same material are not usually done in isolation, so it is possible that the patron may be redistributing these articles, maybe to others outside the organization, but maybe even to others within the same organization.

Section 108 is one of only two copyright law sections I can think of that imposes an affirmative duty on a party to protect a copyright owner’s works in exchange for a pass on infringement liability. (The other is the ISP take down and safe harbor provisions in Section 512, which Congress passed as part of the Digital Millennium Copyright Act.)

As we have discussed, Section 108(a) and Section 108(g), taken together, demand that a library and its librarians exercise some level of due diligence to prevent “related,” “systematic,” or “concerted” copying and distribution of protected works. If a patron engages in actions or requests that could be interpreted as “related,” “systematic,” or “concerted” copying and distribution, then there is a potential breach of the Section 108 limitation (Separately, there could also be a breach of the license agreement that exists between the library and the database provider.)

Further, one could argue that the library gained some level of “commercial advantage” by the patron’s actions. If the library continued to make copies for the patron without question, and the patron has, in fact, redistributed that content outside the organization, then the library probably has failed to pay royalties it would have had to pay for additional copies. The library’s failure to pay the additional royalties for reproduction and distribution rights might be considered an “indirect commercial advantage” under Section 108(a)(1).

Exercising this level of diligence is difficult for information professionals, and more than one student in my copyright classes at Syracuse University has suggested that having to engage in such diligence effectively makes information professionals part of the “copyright police.”

My response? I believe that using Section 108 brings with it a certain level of responsibility. In exchange for receiving a pretty extraordinary exemption, libraries and their employees are responsible for making sure the statute is not abused. Further, I believe that in an era reliant on digital information, making such judgments is as essential to the practice of being a librarian as reference and cataloging work.

There is more practical concern, however, that students raise. At least once per semester, a student will tell me a story about how he or she has been asked — perhaps even ordered — to copy entire works without any consideration for Section 108, or a license agreement. Some students have conceded that they made the copies despite the potential legal liability to them and the library.

(Surprisingly, lawyers seem to be the professionals that are most likely to demand that potentially illegal copying take place.)

Upon receiving such a command, librarians often find themselves with a difficult position. Do you decline a request from a superior who may have direct influence on your continued employment, or knowingly and willingly violate copyright law? I have no blanket piece of advice that will help all librarians in each circumstance.

Librarians should know, however, that in the current climate, copyright owners are particularly sensitive to the possibility of copyright infringement – especially at corporate libraries. As a result, all libraries and businesses are much more likely to be investigated and caught than even a decade ago.

For example, in December 2004, the Copyright Clearance Center settled outstanding claims against Squire Sanders & Dempsey, LLP, an international law firm with more than 500 members, and forced the firm to enter into a licensing relationship. CCC represented “major publishers or business, law and professional materials.”

Ironically, Squire Sanders maintains a copyright practice, and on its Web site, the description for this practice begins: “Copyright registrations must be protected and enforced.”

J. SECTION 108 IN A DIGITAL AGE, PART 3: THE SECTION 108 STUDY GROUP

For at least 18 months, the Association of American Publishers has been murmuring about alleged illegalities in the way university systems administer their electronic course reserve collections. AAP has yet to file a lawsuit, and may abstain from doing so while the Section 108 Study Group is preparing findings for the Librarian of Congress.

As I mentioned above, the purpose of the Section 108 Study Group is “to conduct a reexamination of the exceptions and limitations applicable to libraries and archives under the Copyright Act, specifically in light of the changes wrought by digital media.” The Study Group consists equally of publishers’ representatives and library representatives, and is sponsored by the U.S. Copyright Office and the National Digital Information Infrastructure and Preservation Program.

The Study Group’s findings, which are due by the middle of this year, will investigate possible changes to Section 108 of the Copyright Act, the law that provides copyright exceptions for libraries and archives. It is possible, however, that if the Group does not develop recommendations the publishing industry approves, the publishing industry may launch a litigation campaign that would be similar to the music industry’s lawsuits against alleged illegal file sharers.

The workings and progress of the Study Group are closed to the public. At least one person associated with the group has told me that the one reason the meetings are confidential is that library representatives and content owners hope to speak candidly about issues and move toward some resolution without fear of public posturing.

The Study Group met at least four times in 2005, and already has met in January in Washington, D.C. The group is scheduled to meet privately at least three more times this year:

• March 9-10, 2006 in Los Angeles, CA
• May 11-12, 2006 in Washington, DC
• June 13-14, 2006 in New York, NY

In January, however, the Library of Congress announced that the Study Group would host two public roundtables on Section 108 on the following dates:

• March 8, 2006 in Los Angeles, CA
• March 16, 2006 in Washington, D.C.

The public March roundtables will address four general issues:

1. eligibility for the Section 108 exceptions
2. exceptions for copies made for preservation and replacement purposes
3. access to digital copies outside the premises of libraries and archives, and
4. separate treatment for unpublished materials.

A more detailed description of the issues to be discussed will be made available on the Study Group Web site.

RESOURCES (Resource list updated on Feb. 22, 2006)

K. Matthew Dames. First Sale in the Digital Age. CopyCense. Jan. 23, 2006.

K. Matthew Dames. Using Copyrighted Works in the Classroom. CopyCense. Jan. 16, 2006.

K. Matthew Dames. Copyright Limitations Risk Analysis. CopyCense. Jan. 9, 2006.

LibraryLaw Blog. Follow Up Questions and Answers for Last Week’s ALA Copyright Webcast. March 10, 2005.

The Library of Congress. The Section 108 Study Group. No date.

University of Texas. Copyright in the Library. No date.

James S. Heller. Copyright, Fair Use and the For-Profit Sector. Information Outlook. May 2002.

Kenneth D. Crews. Digital Libraries and the Application of Section 108 of the U.S. Copyright Act. Dec. 6, 2001.

James S. Heller. Where Have You Gone Fair Use: Document Delivery in the For-Profit Sector. Information Outlook. January 2000.

U.S. Copyright Office. Reproductions of Copyrighted Works by Educators and Librarians (Circular 21). (.pdf, 105 KB) September 1995.

METADATA

Author:K. Matthew Dames

Title:CommuniK.: Library Copying in the Digital Age

URL: http://www.copycense.com/2006/01/communik_librar.html

Publisher:CopyCense, a division of Seso Group LLC

Copyright:2006, Seso Group LLC

Contact: copycense at g mail dot com

CopyCense™: K. Matthew Dames on the intersection of business, law and technology. A business venture of Seso Digital LLC. CopyCense™ and CommuniK. ™ are trademarks of Seso Digital LLC.