A presentation I gave at Pratt on the legal issues of digital reproduction and preservation by libraries and archives under the nine sub-sections of section 108 of the Copyright Act. Also covers the Section 108 Study Group sponsored by the LOC National Digital Information Infrastructure and Preservation Program (NDIIPP) from 2005 to 2008.

1. Copyright Act, Section 108
17 USC § 108 - Limitations on exclusive rights:
Reproduction by libraries and archives
“Permits libraries and archives to make certain uses of
copyrighted materials in order to serve the public and
ensure the availability of works over time.”
- Section 108 Study Group
• Enacted as part of the Copyright Act of 1976
• Modified by
The Digital Millennium Copyright Act (1998)
The Sonny Bono Copyright Term Extension Act (1998)

2. Nine Subsections
(a) Who Qualifies
(b) Reproducing Unpublished Works for Preservation
(c) Reproducing Published Works to Replace a
Damaged Copy or Obsolete Format
(d) Reproducing an article/excerpt for private study
(e) Reproducing a whole out-of print work
(f) General Exemptions
(g) Isolated & Unrelated Reproduction, not Systematic
(h) Reduced copyright for orphan works (Sonny Bono)
(i) AV & Graphic Works excluded except from b,c,h

3. 108(a) – 3 Qualifications
1) The reproduction or distribution is made without any
purpose of direct or indirect commercial advantage.
• The reproduction itself may not be sold for a profit.
• Legislative history of section 108(g)(1); the House
Report (1975) states that even a library in a for-profit
entity may reproduce an article for a user to use in her
work as long as the request is an isolated and
spontaneous one.
• Later amendments all seem to insert the words
“nonprofit” before library rather than relying on the
section 108(a) definition.

4. 108(a) - Who Qualifies
2) Collections of Library or Archive are open to the public or
to non-affiliated researchers doing research in a specialized
field.
3) The reproduction or distribution must include a notice of
the copyright, or include a legend stating that the work may
be protected by copyright if no such notice can be found.
– Must place the actual notice that appears on the work
– Second part was added under DMCA.

5. 108(b)
Preservation of Unpublished Works
• 3 copies can be made (was 1 prior to DMCA)
• Duplicated solely for:
Purposes of preservation and security or
Deposit for research use in another library or archives
• The copy or phonorecord that is reproduced is currently
in the collections of the library or archives
“any such copy or phonorecord that is reproduced in digital
format is not otherwise distributed in that format and is not
made available to the public in that format outside the
premises of the library or archives.” (also DMCA)

6. 108(c)
Preservation of Published Works
• 3 copies can be made (was 1 prior to DMCA)
• Duplicated solely for:
The purpose of replacement of a copy or phonorecord
that is damaged, deteriorating, lost, or stolen
or if the existing format in which the work is stored has
become obsolete
If… The library or archives has, after a reasonable
effort, determined that an unused replacement cannot
be obtained at a fair price.

7. 108(c)
Preservation of Published Works
Reasonable Effort
• U.S. trade sources (wholesalers, retail bookstores)
• Publisher or author
• Authorized reproduction service like Proquest
Fair Price
• Assoc. American Publishers: Latest, prevailing retail price
• ALA: Latest retail price, price of reproduction plus
royalties, or partial amount for part of multi-volume set.
This addresses digital copies of analog formats, but does
not address born-digital items such as a CD, if the original is
lost and a new version is not available for a fair price.

8. 108(c)
Preservation of Published Works
“or if the existing format in which the work is stored has become obsolete”
Obsolete Formats
• 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.
• Second-hand store is not “reasonably available”
And again… Digital copies can not be made available to the
public outside the library or archive premises.

9. 108(h) Orphan Works
Permits copying and other uses of certain works in their
last 20 years of protection for
preservation, scholarship, or research, unless:
• The work is subject to normal commercial
exploitation.
• A copy can be obtained at a reasonable price
• The copyright owner files a notice to the Copyright
Office that neither of the above conditions apply.
Added in 1998 Sonny Bono Act when copyright was
extended from life +50 to life +70

10. 108(h) Orphan Works
“Likely means that the only works a copyright owner
will not exploit for the entire copyright term will be
those unprofitable works which are also likely
unpopular – the very works that are of no interest to
anyone for preservation, scholarship or research.”
But…
―Work does not need to currently be in the collection
―No restriction on access to digital copy
―Since 2005, covers AV & graphic works

11. Born-Digital Works
• Access via license agreement does not mean libraries
have the right to preserve it in any way
• Must be readable by both machines and to people
• Preservation of digital works requires reproduction
• Must the preservation copy of a circulating digital item
remain on the premises
• Circumvention of copy protection to make a preservation
copy is illegal
As Hirtle points out:
Computers copy files all the time to read them locally!

12. The Section 108 Study Group
• Sponsored by the LOC National Digital Information
Infrastructure and Preservation Program (NDIIPP)
• “Reexamined the library and archive exceptions and
limitations under the Copyright Act, specifically in
light of the changes wrought by digital media.”
• 19 members from the library, scholarly, publishing
and entertainment communities
• Gasaway co-chaired with Richard Rudick (Wiley)
• Met approx. bimonthly from April 2005 to Jan. 2008
• Report recommendations released March 2008

13. The Section 108 Study Group
Recommendations:
• Sec. 108 should include museums
• Allow outsourcing of Sec. 108 activities
• Allow preservation copies of published works
before damaged
• Permit capture and reproduction of publicly available
online content for preservation purposes
―Couldn’t agree on including virtual-only libraries, the
circumvention of DRM, or including e-reserves under 108.

14. Questions
• “Can we determine a point at which society’s interest
takes precedence over the rights of copyholders?”
Should libraries and archives respect a copyright
holder’s right to sequester or even destroy his or her
own work? (Remember a work doesn’t need to be
published to hold a copyright anymore)
• How may the Books on Demand industry affect
108, especially “Fair Price” and “Reasonable Effort”?