Footnotes to Digital Libraries and the Application of Section 108 of the U.S. Copyright Act

1 For the previous paper mentioned here, see This paper is an outgrowth in part of the present author's earlier examination of Section 108 in Copyright Essentials for Librarians and Educators (Chicago: American Library Association, 2000).

2 Although information professionals may have developed a more flexible or "virtual" concept of the library, evidently Congress has not. The statute at various places alludes to the image of the library as a physical place where materials may be stored, retrieved, and utilized. The statute on occasion refers to the "premises" of the library, suggesting strongly that Congress continues to envision the library as a building and not as a networked system for access to information.

3 Because of the rigorous scope of Section 108, many possible library services or activities may well be beyond the scope of Section 108 or outside the parameters or conditions of the statute. In that event, the library will also need to consider whether the activity might nonetheless be permissible under the law of fair use or other provision. Fair use will be the subject of forthcoming studies in furtherance of the DML project.

4 For purposes of this paper, all materials that are reproduced or distributed in the scenarios or examples are assumed to be protected by copyright law. This assumption is hardly unreasonable, given that copyright protection extends automatically to a wealth of works and applies for an extraordinarily long period of years. For other papers in the DML project that elaborate on these points, see

5 Section 108(f)(2) touches briefly on the issue of copies made by library users by giving to the library and its personnel protection from copyright liability for infringements committed by the library user, if the library posts a warning notice on the publicly accessible machines. Thus, many public and academic libraries post such warning notices on photocopiers, but they can have the benefits of the law by posting the notices on any "reproducing equipment," such as computer, printers, scanners, microfilm readers, tape decks, and the like. In the case of the DML, many of the terminals able to access the contents will not be within the control of the librarians; therefore, the user interface should include an appropriate notice about copyright that will be readily apparent to all users.

6 The researcher or other user who acquires the materials from the library will therefore need to consider the law of fair use or other provision of the Copyright Act if the user plans to make copies of the work or other uses of it. Similarly, the notices on the public copy machines serve to protect the library from liability for infringements that the user might commit. The notice is no direct benefit to the user. The user again needs to consider whether his or her activities are within the law or require permission.

7 While many other publications summarize Section 108 and outline its applicability to library activities, this examination of the law based on the five questions is original to this paper. The author welcomes any observations and comments about this analysis, as well as about any other aspect of this paper.

8 The statute also extends the rights of use under Section 108 not only those libraries actually open to the public, but also to those that might have restricted access, but that nonetheless permit "persons doing research in an specialized field" to use the collections. For example, a corporate library or a private collection that allows users by special arrangement to utilize the collections can satisfy this ground rule.

9 For many years after the original passage of Section 108 in 1976, libraries and publishers debated whether the "notice" on the copy must be the formal copyright notice found on the original (such as the notice "Copyright 2001, XYZ Corp."), or some general indication of copyright's application (such as "use of this material is governed by copyright law. . .").

10 Actually, the preservation provisions of both Section 108(b) and (c), applicable to published and unpublished works, now permit the library to make three copies of a work for preservation purposes. Congress made that change in 1998, generally with the understanding that preservation programs often necessitate multiple copies. For example, even microfilm copies of newspapers usually require the library to make a negative, a master, and a copy that is available for researchers to use. This increase in the number of copies may prove important for the DML. For example, the DML may make one copy of a work for permanent storage, make one digital copy that is accessible to researchers consistent with the limitations of the law, and a third copy that is not in digital formats and that can be used more widely and even loaned to users outside the boundaries of the library. This paper outlines the details in the statute that might confine a digital preservation copy to the premises of the library.

11 "Replacement" implies that the work is an item already in the collection of the library. By contrast, the following discussion of Section 108(c) includes a specific requirement that the work be part of the library's collection.

12 The statute is detailed about the meaning of "obsolete": "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."

13 The original preservation subsections did include specific references to the ability to make copies in "facsimile form." Many librarians and others inferred from that language that the copy must have all the appearances of the original. Some librarians further concluded that preservation copies must be limited to paper or microfilm, or other "facsimile" media that were generally in use in 1976. Analysts of the statute often disagreed on whether digital media may be used at all for the making of preservation copies. The DMCA eliminated the requirement that digital copies be in "facsimile form," so the copies made in digital formats or another medium need not necessarily duplicate or imitate the structure and layout of the original work.

14 One might argue that such a restriction poses no harm to copyright owners if the library already has resolved that the work is no longer on the market, or in the case of unpublished materials the work never has been published and likely never will. Yet a counterargument has considerable merit. Publication plans change, and a work that is today out of print may later return to the market. One could argue that a library should not preempt that potential. In the case of unpublished materials, the copyright owner may well have resolved not to publish them, and a library should not have complete license to subvert the author's or owner's wishes by making manuscripts fully available to the public on a website or other means.

15 In all of these situations, one must determine whether the copies, if any, are in fact made by the library or by the user. Section 108 offers protection only with respect to copies made by the library and its staff. If the server is deemed to be making the copy that is transmitted to the user, then the library that is responsible for creating the system and selecting the available content would presumably be deemed to be making the copies. If the user is deemed to be making the copies by virtue of selecting to access them, then Section 108 has no particular application, and the user must consider whether the copy is within fair use. Of course, if the user is committing an infringement, then the user faces primary responsibility and liability. The library and staff, however, would surely face allegations of "contributory liability" for making the infringements possible.

16 Consequently, the library may be able to make a copy of a sound recording, but if that recording is of a copyright protected musical composition, the library is not allowed to copy that particular work under this statute. If the recording is of a speech or other "literary work," then the library is allowed to copy that recording.

17 The statutory definitions are found at 17 U.S.C. § 101.

18 For the regulation specifying the content of the notice, see Code of Federal Regulations, Title 37, Section 201.14. For a separate paper detailing the form of all notices called for under Section 108, see

19 See Sections 108 (d) and (e).

20 See Section 108(g)(2).