Editors’ Note (SP): This article is divided into six parts. You may link directly to each one of these parts using the chart directly below. In addition, for your reference, the article’s complete Table of Contents appears in section one of the article.

Introduction and Overview / Expiration of Works into the Public Domain / Section 108 Library Exception
Fair Use and Salami / Permissions, Good Faith Efforts and Disclaimers / Pickle Jars and Other Restrictions

Table of Contents III. Section 108 Library Exception A. An Open Door: Threshold Requirement to be a Section 108 Library B. 20 Year Rule: May Digitize Published Documents not Subject to Normal Commercial Exploitation (Nimble Sailing) C. Replacement, Preservation and Security: Works of any Format from any Year 1. Published Works :Replacement of Unavailable Items 2. Unpublished Works: Preservation, Security, Deposit for Research Use in Another Sec. 108 Library D. Section 108 Summary

III. Section 108 Library Exception

A. An Open Door: Threshold Requirement to be a Section 108 Library

Even if a work is not in the public domain, it may still be possible to include it in a library digitization project. Section 108 of the Copyright Law gives Libraries and Archives the right to make copies under certain conditions, such as interlibrary loan, even if the work is copyrighted. If you follow only one link off this article, Section 108 should be the one. Print it. Read it. Frame it.²²

I color Section 108 yellow to show some caution due to the limitations and conditions. It has provisions that allow libraries and archives to digitize works in the last twenty years of copyright provided that the work is not subject to normal exploitation. It also has provisions that allow libraries to digitize works of any year for purposes of preservation and replacement, if the works are not in print, and the digital copies stay in the library.

The key to these provisions is to be considered a “Section 108” Library or Archive. The law does not define library or archive, but it does make clear certain conditions. Libraries or archives must be open to the public. Alternatively, they must allow access to outside researchers. If this is true, the library or archive must not make copies for commercial advantage, and any copying must include a notice of copyright.23

B. 20 Year Rule: May Digitize Published Documents not Subject to Normal Commercial Exploitation (Nimble Sailing)

The Sonny Bono Act was designed to add an additional twenty years to works that have commercial value.24 17 U.S.C. 108(h), added by the Act, however, may seek to mitigate the stranglehold. Written for libraries and archives, it also includes nonprofit educational institutions “that functions as such” (without further defining this). If the use and works meet certain conditions, they can be digitized and put on the web. It’s not clear sailing. Some might characterize it as shallow waters that require nimble sailing. Others might characterize it as waters so shallow as to be virtually unnavigable.

• Libraries and Archives have their own column on the Public Domain Chart. The works in this column are not actually in the public domain, but are usable by libraries so long as reasonable investigation does not show that the work is subject to normal commercial exploitation, is available at a reasonable price, or it has a notice on file at the Copyright Office by the owner.

Rules	Publication or Reg. date + 95 yrs The dates below are conservative, Representing the maximum term. Exceptions: – Published before 1964 and no renewal Published before 1978 and no © notice – Created over 120 years ago	Libraries & Archives Not Public Domain (and doesn’t apply to subsequent users) but may copy in final 20 years if not subject to normal commercial exploitation
2002	1922	1926
2003	1922	1927
2004	1922	…

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Section 108(h) applies only to published works in their last twenty years of copyright. It does not apply to musical, pictorial, graphic, sculptural works, motion pictures, or other audiovisual works (other than audiovisual works dealing with news.)²⁵ Essentially what we’re looking at is published documents²⁶. Additionally, all of these conditions must be met:

1. The purpose must be preservation, scholarship or research.
2. Libraries or archives must determine, based on a “reasonable investigation” that

• (A) the work is not subject to “normal commercial exploitation”

• (B) a copy cannot be obtained at a reasonable price

• (C) the copyright owner has not provided a notice to the Copyright Office showing (A) or (B)

3. This exemption does not apply to subsequent uses by others.

The text of the law is in a note on the Public Domain Chart. Unfortunately, the terms “reasonable investigation” and “normal commercial exploitation” are not defined. The Federal Register published a procedure for copyright owners to provide a notice of “normal commercial exploitation” and availability at reasonable price” but does not illuminate the terms either.

Thus, before using this exception, it might be good to talk to your attorney and the head of your institution to interpret the terms as best you can and to calculate your institutional risk tolerance.

In one view, just about everything is subject to “normal commercial exploitation.” Services like Books On Demand can quickly bring out-of-print works back with increasingly sophisticated segment marketing. Further, “reasonable investigation” could mean hunting down copyright heirs to determine the status of the work. In this view, the Bono Library Exception is essentially useless (unnavigable) to libra
ries and archives.

A second view suggests that Congress would not intentionally enact a useless provision, and that the overreaching goal of copyright law is to promote progress by increasing our storehouse of knowledge. To do so, we strike a balance between giving incentives to the authors and creators, and replenishing the public domain for users (and authors) to draw upon. While it is clear that the Bono Act is intended to protect commercially valuable works, such as Disney movies, the Bono Library Exception is an escape valve for the works that are not valuable that crowd library files. With this backdrop, a “reasonable investigation” may include checking trade sources (such as Books in Print), checking with the Copyright Office to see if a notice by the owner has been filed, and then making an educated assessment as to the likelihood that an owner would be likely to make “normal commercial exploitation.” The less likely that an owner is hanging around, the less likely that exploitation will occur. Nevertheless, some nimble sailing is required.

What do I think? I take the second view. The truth, though, is that we don’t have clarity and these terms are subject to interpretation. This is a good area to discuss with your attorney and the head of your institution to assess interpretations and risk versus benefits to the library and the public.

If the library determines that 108(h) applies to its project, the law allows the library the right to reproduce, distribute, display and perform a work, including in digital form. This should allow the library to put a work on the web. Note: Because the exemption does not apply to subsequent uses by others, it would be prudent to include a notice on a website to that effect.

C. Replacement, Preservation and Security: Works of any Format from any Year

What if the work isn’t in the last twenty years of copyright, or you think that a reasonable investigation would show that it is still commercially exploitable? Not all is lost. Section 108 also has provisions that allow libraries to digitize works to use in house for replacement, preservation, security, and deposit for research use in another “Section 108” library or archives.29 These provisions do not allow digitized copies to be posted to the Web. That’s the bad news. The good news is that you can at least make the digital copies (before the works disintegrate) to digitize works, even if they are musical, pictorial, graphic, sculptural works, motion pictures and audiovisual works. Again, the law makes a distinction between published and unpublished works.

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1. Published Works: Replacement of Unavailable Items

Additionally the library or archive can reproduce (not distribute) the work if:

• (1) the library or archives has, after a reasonable effort, determined that an unused replacement cannot be obtained at a fair price; and

  (2) any such copy or phonorecord that is reproduced in digital format is not made available to the public in that format outside the premises of the library or archives in lawful possession of such copy.

17 U.S.C. 108 (c) (2001)

The House Report describes “reasonable investigation:”

• The scope and nature of a reasonable investigation to determine that an unused replacement cannot be obtained will vary according to the circumstances of a particular situation. It will always require recourse to commonly-known trade sources in the United States, and in the normal situation also to the publisher or other copyright owner (if such owner can be located at the address listed in the copyright registration), or an authorized reproducing service.

H. Rep. No. 94-1476

“Fair price,” has been defined differently by the Association of American Publishers and by the American Library Association.³¹

Did I mention that these digital copies must be kept in house?

2. Unpublished Works: Preservation, Security, Deposit for Research Use in Another Sec. 108 Library

Libraries and archives can reproduce make up to three copies of unpublished works. You may distribute them in a very limited way: for deposit for research use in another Section 108 library. This is good, since you are, almost by definition, the only location that owns the work, and if you burn to the ground, it’s good if another library has a copy. Section 108(b) allows libraries and archives to make up to three copies of works for the sole purposes of preservation, security, or deposit for research use in another Section 108 Library.

The conditions are that:

(1) the copy is currently in the collections of the library or archives; and

(2) digital copies are not distributed outside the premises of the library or archives.

17 U.S.C. 108 (c) (2001)

These digital copies must be kept in house (or for deposit research use in another Section 108 library.)

D. Section 108 Summary

One part of Section 108 allows libraries to digitize and put works (that are in the last twenty years of copyright protection) on the web. However, the libraries must make a reasonable investigation to ensure that the works are not subject to normal commercial exploitation, available at a reasonable price, or the copyright owner has filed a notice with the Copyright Office.

Another part of Section 108 allows libraries to digitize works (from any year), but the copies must be kept in the library. Published works must not be commercially available at a reasonable price. Unpublished works may be copied only for preservation, security or deposit in another qualified library.

If the works you want to copy aren’t in the public domain, and the Section 108 Library Exception does not cover the project (or the item’s) needs, then there is always the gray area, known as Fair Use.

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Footnotes:

²² I may be preaching to the choir, but I was a librarian for over ten years before I went to law school, and I had never heard of Section 108. When we talk about “copyright literacy for librarians” this is at the top of the reading list. <back to text>

²³“(a) Except as otherwise provided in this title and notwithstanding the provisions of section 106, it is not an infringement of copyright for a library or archives, or any of its employees acting within the scope of their employment, to reproduce no more than one copy or phonorecord of a work, except as provided in subsections (b) and (c), 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; (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; and (3) the reproduction or distribution of the work includes a notice of copyright that appears on the copy or phonorecord that is reproduced under the provisions of this section, or includes a legend stating that the work may be protected by cop
yright if no such notice can be found on the copy or phonorecord that is reproduced under the provisions of this section.” 17 U.S.C. § 108(a) (2001). <back to text>

²⁴Senator Patrick Leahy, reported that “from the years 1977 through 1996, the U.S. copyright industries’ share of the gross national product grew more than twice as fast as the remainder of the economy. During those same 20 years, job growth in core copyright industries was nearly three times the employment growth in the economy as a whole. These statistics underscore why it is so important that we finally pass this legislation today.” 144 Cong. Rec. S11672 (October 7, 1998)(visited May 20, 2002). Sen. Leahy and others requested a congressional study to study the financial implication implications of copyright term extension. It considered charging fees to copyright owners in exchange for the additional twenty years. Such a system could have prevented the stranglehold that the extension has placed over all non-commercially viable works. The fee system was not included in the final legislation. <back to text>

²⁵If you read the new section (h) inserted by the Bono Act together with section (i) that was already there, you see that (i) limits most of the rest of Section 108. Specifically, it disallows the reproduction and distribution of musical, pictorial, graphic, sculptural works and motion pictures or other audiovisual works (other than audiovisual works dealing with news.) It’s not entirely clear whether pictorial or graphic works published as illustrations, diagrams, or similar adjuncts to works are allowed. These “adjuncts” are specifically permitted for copies made for interlibrary loans. Section (i) refers to this permission for “subsections (d) and (e).” It appears to have been an oversight by legislators to have not added “and (h)” to the language in (i). This may be another area to get your attorney’s opinion, especially for large scale projects. <back to text>

²⁶ Nonmusical sound recordings are not specifically excluded in (h). However, sound recordings that were fixed before February 15, 1962 will be in copyright until February 15, 2047. See United States. Copyright Office. Circular 56. Copyright Registration for Sound Recordings (visited May 29, 2002). <back to text>

²⁷37 C.F.R, § 201.39 (2001). United States. Code of Federal Regulations. Notice to Libraries and Archives of Normal Commercial Exploitation or Availability at Reasonable Price. [63 FR 71787, 20, 2002). You can read the library profession’s response to the Copyright Office’s request for comments at American Association of Law Libraries, American Library Association, Association of Research Libraries, Medical Library Association, Special Libraries Association. Reply Comments. In the Matter of Notice to Libraries and Archives of Normal Commercial Exploitation or Availability at Reasonable Price. United States Copyright Office [Docket No. 98-13] (April 1, 1999) http://www.arl.org/info/frn/copy/comments.html (visited May 5, 2002). <back to text>

²⁸Hint: Look at this section’s title. <back to text>

²⁹For a history of the insertion of “digital” into the preservation subsection of Sec. 108, see Carol Henderson, American Library Association. Library Preservation: Changes Incorporated in H.R. 2281 The Digital Millennium Copyright Act of 1998 (PL 105-304) http://www.ala.org/washoff/preservation.pdf (visited May 6, 2002). <back to text>

³⁰Interlibrary loan has its own provisions in 108(d)(e) and (g). <back to text>

³¹The definitions agree in part, but the American Library Association definition does not consider purchasing a multi-volume set in order to replace a single volume to be a fair price. For a fuller discussion of preservation and replacement copying, see Laura Gasaway, Values Conflict in the Digital Environment: Librarians Versus Copyright Holders (2000), an article based on the Horace S. Manges Lecture, delivered on March 7, 2000 at the Columbia University School of Law. at http://www.unc.edu/~unclng/_ftn131 (visited May 26, 2002). See also the American Library Association, Library Preservation: Changes Incorporated in H.R. 2281 The Digital Millennium Copyright Act of 1998 (PL 105-304) (Last modified November 18, 1998) at http://www.ala.org/washoff/preservation.html (visited May 26, 2002). <back to text>

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Proceed to Part 4 of this article: Fair Use and Salami