Exceptions for Reproduction by Libraries and Archives 108

Exceptions for Reproduction by Libraries and Archives § 108, U. S. Copyright Law Insert Date Insert Instructors’ Names / Titles The following slides are based on the work of the UCLA Library Scholarly Communications Steering Committee

Today’s Objectives § § 108 in a nutshell § Detailed review of the exceptions granted by § 108 § Implications for library services

Disclaimer I am not an attorney, and cannot offer legal advice. The following information is presented to educate about copyright law and institutional policy in general terms. If you are unclear about your options when confronted with a specific legal issue related to copyright, you are urged to consult with an attorney with a background in copyright law.

§ 108 in a nutshell This section of copyright law grants specific exceptions to Libraries and Archives that allow them to: § Provide Interlibrary Loan services § Make copies related to Preservation efforts § Replace items that are damaged or lost with copies …plus it addresses a few other activities specific to library functions. (cont’d)

§ 108 in a nutshell However: § This exception does have some specific limits (re: amounts, formats, and purposes) § “Fair Use” does come into play to allow flexibility § Any library policies should conform to these limitations • Therefore, a careful reading of each of these provisions is necessary

Detailed analysis of§ 108 Disclaimer: The following slides provide a summarized breakdown of each of the subsections, but they should not be used as a replacement for a careful reading of the entire section when formulating policy. Also, this should not be construed as legal advice – if you have specific concerns about any point in the law, you should consult with an Intellectual Property attorney.

Subsections of§ 108 note: these titles are not in the law a) b) c) d) e) f) g) h) i) Initial Conditions Copying for Preservation Copying for Replacement Interlibrary Loan pt. 1 Interlibrary Loan pt. 2 “Nothing in this section…” Repeated Copying End of Term Exception Format Limitations

Initial Conditions: § 108(a) Libraries can make a single copy of a work and distribute it, if: 1. The copy is made “without any purpose of direct or indirect commercial advantage” 2. The library is open to the public (or if not, at least open to researchers in a specialized field) 3. The distributed work includes a notice of copyright (or states that “the work may be protected by copyright” if the status is unclear)

Copying for Preservation: § 108(b) Libraries can make three copies of an unpublished work: 1. For purposes of preservation and security, or 2. For deposit for research use in another library If: 1. The item is in the collection 2. Any digital copy is not distributed, or “made available to the public in that format outside the premises”

Copying for Replacement: § 108(c) Libraries can make three copies of a published work to replace a copy that is: 1. Damaged, deteriorated, lost, or stolen, or if 2. The format has become obsolete If: 1. Library determines an unused replacement cannot be obtained at a fair price 2. Any digital copy is not distributed, or “made available to the public in that format outside the premises”

Interlibrary Loan: § 108(d) Copying is allowed when a user at the library (or at another library requesting an ILL) requests a copy of “no more than one article” from a periodical issue or “a small part” of any other copyrighted work, and: 1. The user has signaled no intention other than private study, scholarship, or research, and 2. The library displays the warning proscribed by the Copyright Office (see later slide) Then, the copy becomes property of the user.

Interlibrary Loan cont’d: § 108(e) Copying is allowed when a user at the library (or at another library requesting an ILL) requests a copy of an entire work, or a substantial part, if: 1. the library determines a copy cannot be obtained at a fair price, and 2. The user has signaled no intention other than private study, scholarship, or research, and 3. The library displays the warning proscribed by the Copyright Office (see following slide) Then, the copy becomes property of the user.

“Nothing in this section…”: § 108(f) • Imposes liability on a library for unsupervised copying on the premises (it exempts libraries if infringements occur using library copy machines) • Excuses liability on those users who would make such unsupervised copies (it holds users responsible) • Limits the lending of (limited) copies of audiovisual news programs • Affects Fair Use rights • Affects contractual obligations assumed by a library in the purchase of the copyrighted work

Repeated Copying: § 108(g) The library can make/distribute additional “isolated and unrelated” copies of a work, except when the library: • Is aware that the request is part of deliberate attempt to acquire multiple copies (for aggregate or group use) or • Systematically distributes copies of limited works (as described in subsection (d)), but this limitation: – Cannot restrict ILL arrangements (except efforts to replace an aggregate quantity of materials as a substitute for purchase)

End of Term Exception: § 108(h) In the last 20 years of the copyright term of a published work, a library make and distribute or display a digital copy of the work for preservation, scholarship or research, as long as none of the following apply: 1. The work is subject to normal commercial exploitation, or 2. The work is available at a reasonable price, or 3. The copyright owner provides notice that either of the two conditions above apply

Format Limitations: § 108(i) The copying permitted in most of § 108 does not apply to: 1. Musical works 2. Pictorial, graphic or sculptural works (except those embedded within books and journal articles) 3. Motion pictures or audiovisual works (except news programs) However, such works can be copied under the following: • Copying for Preservation: § 108(b) • Copying for Replacement: § 108(c) • End of Term Exception§ 108(h)

Copyright Warning As specified in paragraphs (d)(2) and (e)(2), the U. S. Copyright Office was charged with articulating the Copyright Warning notice. The statement (on the next slide) is codified in Title 37 § 201. 14 of Federal regulations. Libraries and Archives must use the statement on the next slide verbatim in the both of the following two ways: § Mount a “Display Warning of Copyright” prominently, near the location where copy orders will be placed (service desks and copy machines), on durable paper and in a font “at least 18 points in size. ” § Include a “Order Warning of Copyright” in any paper forms users fill out to request copies.

Title 37 § 201. 14 NOTICE WARNING CONCERNING COPYRIGHT RESTRICTIONS 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 reproduction. 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 judgment, fulfillment of the order would involve violation of copyright law.

Implications for Libraries • Libraries do not have free reign to do anything they want § § 108 provides great latitude to libraries § But, libraries must be careful to enforce these limits • Fair Use is a vital component § Library staff must have a solid understanding of fair use § Libraries and Users can employ Fair Use as a justification for copies beyond the limits of this section, when appropriate

The Section 108 Spinner The following online tool can be a quick and easy way to remind yourself of the limitations of Section 108: http: //www. librarycopyright. net/108 spinner/ From the ALA Office for Information Technology Policy FYI: The spinner is also available for purchase in hard copy Photo from: http: //www. flickr. com/photos/sixteenmilesofstring/3177921510/

Need Further Help? The UCLA Library can help with questions about Section 108 and its implications. email us: copyright@library. ucla. edu

Questions? Thank You! Acknowledgements The preceding slides are based on the work of the UCLA Library Scholarly Communications Steering Committee Photo from flickr: http: //www. flickr. com/photos/marcobellucci/3534516458/