Section 108 Photocopying by Libraries and Archives

How the DMCA Affects Library Photocopying and Interlibrary Loan Services

The Digital Millennium Copyright Act of 1998 amended several areas of the U.S. copyright law law including Section 108, "Limitations on Exclusive Rights: Reproduction by Libraries and Archives." Section 108 of the copyright law allows libraries and archives to reproduce and distribute one copy of a work under certain circumstances. For example, libraries may photocopy journal articles, book chapters, etc. and send these copies to other libraries through interlibrary loan. This section also allows libraries to make copies for preservation purposes. The DMCA amended Section 108 in three significant ways that are described below.

Notice of Copyright

Copies must include a notice of copyright that appears on the copy when available. If the work does not include a notice of copyright, use a legendor stamp stating the work may be protected by copyright. (Notice: This material may be protected by Copyright Law (Title 17 U.S.C.)).

Copies for Preservation or Archival Purposes 

The library may make up to three copies of an unpublished work for purposes of preservation, including copies in digital form as long as that format is not made available to the public outside of the library or archives.

The library may also make up to three copies of a published work to replace a damaged, deteriorating, lost, or stolen work (when an unused replacement cannot be obtained at a fair cost). The library may also make up to three digital copies to replace a work in an obsolete format as long as that format is not made available to the public outside of the library or archives.

Right to Reproduce and Distribute Works in the Last 20 Years of Any Term of Copyright 

The library or archives may reproduce, distribute, display, or perform in facsimile or digital form ant work in the last 20 years of its copyright term for purposes of preservation, research or scholarship. This change to Section 108 was made to address the concerns of libraries and non-profit educational institutions planning to reproduce and distribute materials that would have fallen into the public domain if the copyright term extension act had not been passed. This means that, although the term of copyright has been extended by 20 years, libraries may copy or digitize works that are in the last 20 years of their copyright term. In order to take advantage of this exemption, however, libraries should make a reasonable effort to determine that:

• the work is not subject to normal commercial exploitation,
• a copy cannot be obtained at a reasonable price, and
• the copyright holder has not filed notice with the Register of Copyright Regulation that either of the above conditions apply.