Module Three: Copies for Users
This Module Covers... Copies for Users The Current Statute Study Group Discussions and Issues Conclusions Outside Reading for Module Three Discussion Questions Footnotes	AV MODULE INTRO: Click the slide above or HERE / Text Transcript (PDF) Run the Wimba Setup Wizard to view the Introduction. (Wizard only needs to be run on the first visit.) Enter your name beneath the room ID field (jboeve1_01) Click "Archive Start" in the upper right corner when new window opens. Click "Exit" to leave MODULE INTRODUCTION and close the window to return to this module.

This Module Covers...

• History and background of copies for users
• The current copies for users statutes
• Study Group discussions
• Study Group conclusions  

Copies for Users

Section 108 not only provides an exception for libraries and archives for preservation of copyrighted works but also permits these entities to make copies for users under certain conditions. The Section 108 Study Group had more difficulty reaching agreement on whether and how to amend the statute dealing with making copies for users than it did with the preservation issues, and thus had no recommendations in this area. It did reach some conclusions, however, and there were excellent discussions on these issues which could serve as the basis for a future effort to develop recommendations.

The adoption of computer technology in libraries and archives initially was aimed at automating various processes, and then it moved to preservation. As scanning technology improved and more users had personal computers, libraries expanded digital services to making copies for users in lieu of photocopies. To librarians and archivists, providing a user with a digital copy of an analog work is no different than providing that same user with a photocopy. To publishers and producers, however, when a library provides a digital copy, the risk is much greater since it is relatively easy for a user to upload that copy and distribute it broadly, thus affecting and perhaps even destroying the publisher’s market.

The Current Statute

The existing statute contains several subsections that deal with the reproduction and distribution of copies to library patrons.

Subsection 108(d)

Subsection 108(d) states that the section’s rights of reproduction and distribution apply when the user requests a copy of no more than one article from a periodical issue, one chapter from a book or other collective work. When a patron ask the library to provide a single copy of an article, the library may supply the reproduction if three conditions are met:

(1) the copy must become the property of the user;

(2)the library must have no notice that the copy will be used for other than fair use purposes; and

(3) the library places the Register’s warning on order forms for copies and display prominently the same warning where orders are placed.

The Register’s warning is familiar to most librarians.

The copyright law of the United States (Title 17, United States Code) governs the making of photocopies or other reproductions of copyrighted material. Under certain conditions specified in the law, libraries and archives are authorized to furnish a photocopy or other reproductions. One of these specific conditions is that the photocopy or reproduction is not to be “used for any purpose other than private study, scholarship, or research.” If a user makes a request for, or later uses, a photocopy or reproduction for purposes in excess of “fair use,” that user may be liable for copyright infringement. This institution reserves the right to refuse to accept a copying order if, in its judgement, fulfillment of the order would involve violation of copyright law.1

Subsection 108(g)(1)

Subsection 108(g)(1) relates to the reproduction for users done under subsection (d), and it places additional conditions on making copies for users. For example, the reproduction and distribution rights under this section extends to “isolated and unrelated reproduction and distribution of a single copy.” The exception in subsection (d) also applies to copies of the same material on separate occasions. On the other hand, the rights of reproduction and distribution granted under subsection (d) also do not apply if the library or its employees is “aware or has substantial reason to believe that it is engaging in related or concerted reproduction of single or multiple copies of materials described in Subsection (d).” Nor does it apply if the library engages in systematic reproduction of single or multiple copies of portions of works described in subsection 108(d).

Subsection 108(e)

Subsection 108(e) provides an exception for libraries to reproduce an entire work or a substantial portion thereof if certain conditions are met. First, the library must conduct a reasonable investigation to determine that a copy cannot be obtained at a fair price. This search in this subsection is not limited to “unused” copies. Additionally, the three requirements from 108(d) also must be met:

(1) the copy must become the property of the user;

(2) the library must have no notice that the copy will be used for other than scholarship, research, teaching, etc.; and

(3) the library provides the user with the Register’s warning in advance of providing the copy.

Subsection 108(g)(2)

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 guidelines2 that were promulgated at the time the Act was passed define what are such aggregate quantities to substitute for a subscription to or purchase of a work. The guidelines say that each year a borrowing library may make five requests from a periodical title going back over the most recent five years (60 months). The guidelines take no position on materials older than five years. 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.3

Subsection 108(i)

The final subsection of 108 limits the exceptions in the section primarily to text works. Subsection (i) states that the exceptions do not apply to a musical work, a pictorial, graphic or sculptural work, or a motion picture or other audiovisual work other than one dealing with the news. This exclusion does not apply to:

(1) the preservation and replacement exceptions in subsections 108(b)-(c) and (h) or

(2) to pictorial or graphic works that are published as illustrations, diagrams, etc., as a part of an article.

Study Group Discussions and Issues

Direct copies for users

The Study Group focused on replacing photocopies of analog works with digital copies for users and making those copies available remotely.  If the user requests a scanned copy of an article from a periodical issue rather than a photocopy, the Study Group considered whether this should be permitted, and if so, under what conditions should the library be able to provide a digital copy to user.  Publishers and producers were naturally concerned that such copies could destroy the market for electronic versions of their works, which is why they were fairly insistent that libraries should apply technological protection measures to these copies of their works.  Librarians believed that requiring users to certify that the copy would be used only for scholarship, research or private study would provide adequate safeguards.  It was clear that libraries with a clearly defined user group (such as colleges and universities) presented less concern for remote access than did libraries (large public libraries, for example) that may have huge, undefined user groups.  

Whether the single copy to a user standard makes sense if the library is providing a digital copy was addressed.   The library may be required to make many more than one copy in order to provide one usable digital copy for a user.  Another issue is whether the statute should continue to require that the copy provided under subsections (d) and (e) or from ILL become the property of the user or if, because the copy is a digital one, this requirement is logical today. 

For both direct copies to users and interlibrary loan an important issue is whether libraries can provide digital copies to users from licensed resources.  Although licensing is discussed in Module # 4, it is important to note that license agreements control whether digital copies may be reproduced by the library and distributed to users upon request either from their own library or whether the lending library may use electronic subscription to fill ILL requests.  This is true under the current statute and there was no recommendation to change it.  License agreements vary significantly and librarians must read the terms of each to determine whether the contract permits a lending library to give digital copies to users as opposed to providing access to the work only to their own primary clientele.

Interlibrary loan

Interlibrary loan is a time-honored tradition in libraries.  The evolution of interlibrary loan makes a great deal of sense from the days of lending the original work with its accompanying mailing costs, wear and tear to the original volume, etc.,  to utilizing modern technology to reproduce small portions of these works that a researcher might request through ILL.  Each year, however, there are still hundreds of thousands of interlibrary loans of printed volumes and other analog works that involve no copying.  But few libraries today lend a bound periodical volume when instead they can reproduce a copy of the one article requested by a borrowing library and provide it through ILL.  To librarians, the result is simply the same thing.  When the original volume is lent to a user, the patron gets the work he or she wants.  When the work is photocopied, the patron still gets a photocopy of the needed work.  When the library places a scanned copy of the work on a password-protected website for retrieval only by the requesting patron, he or she gets the work needed.  Publishers and producers see it very differently, however.  Lending the original work is permitted under the first sale doctrine.4  Copyright holders were more concerned about photocopies substituted for lending the original work, but the CONTU guidelines and the suggestion of five provided a safe harbor for borrowing libraries to permit this activity.  Providing digital copies to satisfy ILL requests is more problematic to publishers and producers.  The practice of placing a digital copy on a password protected website is a fairly well established practice in research libraries today.  Some publishers and producers indicated that they were comfortable with this practice but others objected. 

Even though ILL practice is intertwined with the CONTU guidelines, and some Group members thought the guidelines should be updated, it was decided that the guidelines were beyond the charge to the Study Group.

Limiting the 108 exceptions to text only

Many Group members wanted to eliminate the subsection 108(i) limitations that make the subsection all but unavailable for non-text works except in narrow circumstances.  Today, libraries and archives acquire works in a variety of formats and their use by patrons parallels the use they make of text-based works for scholarship, research and private study.  Differential treatment of these types of works makes it difficult to manage collections in libraries and negatively impacts users since obtaining a copy of even a small portion of an audiovisual work is not permitted under section 108.5

Publishers and producers were very concerned about duplicating nonprint works and the effect it would have on their markets.  Among Group members, there was some support for differentiating ever further among types of works.  For example, motion pictures might continue to be excluded from the 108 limitations while video clips embedded in an electronic book would be included, thus permitting libraries to make copies of portions of these works for users under subsections (d) and (e). 

Because of the lack of agreements in direct copies for users, ILL and the text-only restriction, the Study Group did not develop recommendations in this area, which is unfortunate.  It did reach some conclusions, however.

Conclusions

1. In principle, the single-copy for a user standard should be replaced with a more flexible standard that is more appropriate for the nature of digital materials.


2. Any electronic copy provided to users would have to be accompanied by adequate protection measures such as: 

   (a) ensuring that access is provided only to the requesting user, and

   (b) deterring unauthorized reproduction and distribution of the work.

3. The current requirement than any copy the library provides to a user must become the property of the user likely should be changed so that the library may retain the copy but not for the purposes of collection augmentation or to facilitate further ILL.


4. As is the current practice for ILL, users should make their requests through their own libraries and not directly to another library.


5. Further study of whether the subsection 108(i) exceptions might be expanded to include certain non-text-based works would be useful and should focus on potential effect on the market for works currently excluded from coverage.


6. If the subsection 108(i) restrictions are retained they should be narrowed to limit the categories excluded from the 108 exceptions to works where copying might put the work at particular risk for market harm.  Further, the categories of “adjunct” works that are eligible for the (d) and (e) treatment should be expanded to include “embedded” or “packaged with.”


7. If subsection (i) is expanded so that (d) and (e) apply to additional categories of works, then additional conditions should be included to address risks associated with copying those types of works.

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The Section 108 Study Group Report, pages 95-112, at http://www.section108.gov/docs/Sec108StudyGroupReport.pdf

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	Discussion Questions:
	Should libraries and archives be permitted to provide digital copies to users in lieu of photocopies? If so, under what conditions? How can the concerns of publishers and producers be met? If a library has copyrighted non-licensed digital works in its collection, should it be permitted to provide off-site access to users? What restrictions should apply? Would applying technological protection measures to digital copies relieve copyright owner concerns over remote access of digital copies for users? How likely is it that libraries would be able to apply such measure to digital copies they reproduce of analog works? Under what conditions should libraries and archives be permitted to reproduce non-text works for users? Why do publishers and producers object to reducing the current restrictions on such copying? Please post a response to the Conference entitled Discussion for Module Three.

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Footnotes