Where is 108? Possible under-utilization of the Copyright Act’s library and archive-specific exemption from copyright infringement

Abstract

This article addresses possible under-use of 17 U.S. Code §108 (“108”), the exemption to copyright infringement specifically for the protection of libraries and archives. This article was inspired by the personal experience of the author, a practicing attorney frequently advising libraries and archives, who has observed a lack of awareness and use of 108’s significant protections. The article explores possible factors contributing to this lack of awareness, speculates on the impact of same, and proposes simple but critical actions that could increase and enhance library and archival operations’ beneficial use of 108.

Keywords:

• Copyright infringement
• exemption from infringement
• infringement exception
• fair use
• preservation copy
• digital copy
• inter-library loan
• obsolete
• archival copy
• preservation
• archival digitization

Notes

1 Adopted by the Council of the American Library Association (the Council), February 2, 2015 Revision of standard element V.3 adopted by the Council, January 28, 2019 by request of the Committee on Accreditation, as retrieved October 11 from: http://www.ala.org/educationcareers/sites/ala.org.educationcareers/files/content/standards/Standards_2019_ALA_Council-adopted_01-28-2019.pdf.

2 755 F.3d 87, 2014 U.S. App. LEXIS 10803, 111 U.S.P.Q.2D (BNA) 1001, Copy. L. Rep. (CCH) P30,617, 42 Media L. Rep. 1898, 2014 WL 2576342

3 In passing, the author must note that any policy “borrowed” from another entity should be reviewed for consistency with the borrowing institutions own charter, bylaws, other policies, and insurance coverage, to say nothing of the copyright considerations.

4 This is not to say there is no nationally organized advocacy regarding 108. On its “Policies” page, the ALA states: “ALA opposes any revision of Section 108 that would erode existing exceptions and foundational principles.” This, however, is not a modelling of how to use 108’s protections in day-to-day operations.

5 The New York Archives, policy retrieved on October 10, 2019, from http://www.archives.nysed.gov/research/res_topics_film_copies.

6 Contrary to popular belief, both states and the federal government can, under certain circumstances, be liable for copyright infringement. See Roy v. N.H. Dep't of Corr., 2016 U.S. Dist. LEXIS 64064 and 28 USCS § 1498, respectively.

7 This benefit is stated unequivocally in House Report No. 94-1476: “It is the intent of this legislation that a subsequent unlawful use by a user of a copy or phonorecord of a work lawfully made by a library, shall not make the library liable for such improper use.”

8 See the ALA’s memo on “Copyright, an Interpretation of the Code of Ethics, as retrieved October 10, 2011 from http://www.ala.org/tools/ethics/copyright.