Copyright Clearances: Library Copying in the Digital Age
Dames, K. Matthew, Online
Consider the following scenario. A patron asks you, a librarian, to download a journal article that is part of a database with which the library maintains a license agreement. In the past, the patron has made similar requests. Although you have no clear proof, you suspect the patron has reproduced the printouts you sent her, and redistributed copies to recipients outside the organization--including colleagues and clients. Additionally, you suspect that there is a provision in the copyright law that may allow one part of this chain of events, but that the organization--perhaps even you--may be subject to some legal risk for another part of this same chain of events. You're unsure, however, where legality may morph into infringement.
Welcome to the murky world of library copying in the digital age.
Just as Section 109 of the copyright law is one of the legal cornerstones that permits certain library activities, Section 108 authorizes libraries to perform activities that assist in the dissemination of knowledge. Section 108 generally allows libraries to reproduce copyrighted work for, and distribute those works to, patrons and other libraries. The most significant distinction between Section 109 and Section 108 is that while the former allows libraries who legally purchase copies of protected materials to lend those materials to others, the latter allows libraries to copy and redistribute some or all of those materials for purposes such as archiving and interlibrary loan. In other words, Section 109 generally lets libraries lend the whole item--the book, film, etc.--to the public while Section 108 generally lets libraries copy and distribute some of the information within those items, such as pages of the book, to library patrons or store for archival purposes. (In certain instances, Section 108 also allows a library to copy an entire item and distribute that whole item to a patron, another library, or store that item for archival purposes.)
Section 108, however, has been difficult to stretch to accommodate digital formats and distribution channels. Congress drafted the law when information resided in physical, tangible formats. As the primary delivery and storage information formats have evolved from analogue (and tangible) to digital (and intangible), Section 108's boundaries have become fuzzy. Beginning in 1994, at the Conference on Fair Use ("CONFU"), copyright stakeholders (including the content industry and library representative organizations) tried to "negotiate guidelines for the fair use of electronic materials in a variety of nonprofit educational contexts." By 1996, it was clear that the two sides would be unable to come to an acceptable agreement [www.utsystem.edu/ogc/intellectualproperty/ confu2.htm]. The Section 108 controversy continues today: In April 2005, The Chronicle of Higher Education reported that the Association of American Publishers is considering whether to launch legal action over the use of electronic reserves at the University of California at San Diego [http://tinyurl.com/3oscs]. As a result, any answer to the hypothetical scenario posed at the outset of this article is conjecture.
Before addressing Section 108's applicability in the digital realm, it's necessary to elucidate the conditions upon which institutions are eligible to use the section as a copyright limitation.
SINGLE COPIES AND NO COMMERCIAL ACTIVITY
Generally, Section 108(a) allows a library to make one copy of a protected work for archival purposes so long as the library doesn't use the law as an excuse to allow widespread, but otherwise illegal, copying of protected materials. Interestingly, Section 108(a) correlates directly with Section 108(g), which allows library copying and distribution only when those activities happen under "isolated" and "unrelated" circumstances.
Section 108(a) also establishes conditions upon which libraries may make single archival copy. …