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Exceptions for Reproduction by Libraries and Archives §108, U.S. Copyright Law
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Welcome and introduction of UCLA Librarians / Guest Instructors
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The following slides are based on the work of the
UCLA Library Scholarly Communications Steering Committee

2. Today’s Objectives §108 in a nutshell
Detailed review of the exceptions granted by §108
Implications for library services
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3. I am not an attorney, and cannot offer legal advice.
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.

4. §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)
The next slide is meant to cover the second half of this topic…

5. §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
So, we turn to a detailed reading of each subsection.

6. 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.
Also please note that the titles provided for each subsection (Interlibrary Loan, Copying for Preservation, etc.) are not found within the law – they were inserted to help you understand the main point of each section.

7. Subsections of§108 note: these titles are not in the law
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
Also please note that the titles provided for each subsection (Interlibrary Loan, Copying for Preservation, etc.) are not found within the law – they were inserted to help you understand the main point of each section.

8. Initial Conditions:§108(a)
Libraries can make a single copy of a work and distribute it, if:
The copy is made “without any purpose of direct or indirect commercial advantage”
The library is open to the public (or if not, at least open to researchers in a specialized field)
The distributed work includes a notice of copyright (or states that “the work may be protected by copyright” if the status is unclear)
This subsection lays down minimal conditions for all the subsequent subsections. Through these provisions, libraries can make copies of materials and forward them to other libraries, who can share those materials with the users that requested the materials.

9. Copying for Preservation:§ 108(b)
Libraries can make three copies of an unpublished work:
For purposes of preservation and security, or
For deposit for research use in another library
If:
The item is in the collection
Any digital copy is not distributed, or “made available to the public in that format outside the premises”
Note carefully that this subsection refers to unpublished works – a small section of library collections, much more common in archives.
This subsection allows libraries and archives to make copies for preservation purposes – such as digitization efforts, or to place copies of unpublished works (which are usually rare) in another library for an additional level of preservation and security – much like computer data backup is done in more than one location, in the event one location is struck by a disaster.

10. Copying for Replacement:§108(c)
Libraries can make three copies of a published work to replace a copy that is:
Damaged, deteriorated, lost, or stolen, or if
The format has become obsolete
If:
Library determines an unused replacement cannot be obtained at a fair price
Any digital copy is not distributed, or “made available to the public in that format outside the premises”
This subsection relates to published works, and is only applicable when the work is not available at a reasonable price – and this most often applies to a book or journal that has fallen out of print. Libraries can make a copy to replace one that is damaged, deteriorated, lost, or stolen.
The subsection also specifies the following about the concept of an “obsolete” format:
“For purposes of this subsection, a format shall be considered obsolete if 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.” (Question: How does this effect microfilm? If readers are available, does this allow “replacement” to digital format? Perhaps the “deteriorating” aspect covers this, as microfilm can do that…)

11. 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:
The user has signaled no intention other than private study, scholarship, or research, and
The library displays the warning proscribed by the Copyright Office (see later slide)
Then, the copy becomes property of the user.
Back to Interlibrary Loan practices. This section covers the use of limited materials – one article from a periodical or collection, or a small part of a work. This is consistent (but not exactly the same) as Fair Use.

12. 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:
the library determines a copy cannot be obtained at a fair price, and
The user has signaled no intention other than private study, scholarship, or research, and
The library displays the warning proscribed by the Copyright Office (see following slide)
Then, the copy becomes property of the user.
This subsection addresses the copying of entire items (that would seem to go beyond Fair Use), but for which the library cannot find the item “at a fair price” – and that clause is left undefined in the law.

13. “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
This subsection gives important indemnification for libraries, exempting them from liability if a user infringes copyright using library equipment, and places the responsibility of such actions on the user.
It also allows libraries to copy and distribute audiovisual news programs (to a limited degree).
It also stipulates that this subsection is not meant to limit the employment of Fair Use by libraries and their users. So, if any copying falls beyond the limits in this subsection, Fair Use can still be used as a justification when appropriate.
Finally, if any terms within contracts that the library signs (such as those to license electronic journals, for example) are more restrictive than these limits, the library cannot use these provisions to ignore those contract terms.

14. 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)
To further clarify ILL practices, a work may be copied and distributed repeatedly, as long as the repeated uses are “isolated and unrelated.” So for example, under this subsection:
One library could not systematically forward the entire contents of a journal series to another library, when that library could simply purchase the journal themselves.
If the library suspects the user is making distinct requests for limited portions of a work, and that the requests add up to the totality of the work, the copying should not go forward.
Also, in essence, this avoids an interpretation that would allow only one ILL of a particular article ever – repeated uses are allowed to fill distinct requests.

15. End of Term Exception:§108(h)
In the last 20 years of the copyright term of a published work, a library may make and distribute or display a digital copy of the work for preservation, scholarship or research, as long as none of the following apply:
The work is subject to normal commercial exploitation, or
The work is available at a reasonable price, or
The copyright owner provides notice that either of the two conditions above apply
This section allows for additional protection in using works that are nearing the end of copyright term – which is of course quite lengthy. This adds an extra bit of protection and leeway for the preservationist. Note however that if the copyright is actively protected, the owner can easily prevent this type of copying through a notice.

16. Format Limitations:§108(i)
The copying permitted in most of §108 does not apply to:
Musical works
Pictorial, graphic or sculptural works (except those embedded within books and journal articles)
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)
So, in essence, the ILL subsections allow for copying of print works – books, journals and the like – and not the materials above.
The preservation and replacement provisions apply to all works.

17. 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 §  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.

18. Notice Warning Concerning Copyright Restrictions
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.

19. 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

20. The Section 108 Spinner
The following online tool can be a quick and easy way to remind yourself of the limitations of Section 108:
You may wish to have a hard copy of the spinner to pass around to your audience.
From the ALA Office for Information Technology Policy
FYI: The spinner is also available for purchase in hard copy
Photo from:

21. Need Further Help?
The UCLA Library can help with questions about Section 108 and its implications. us:

22. Questions? Thank You! Acknowledgements
The preceding slides are based on the work of the
UCLA Library Scholarly Communications Steering Committee
Photo from flickr: