United States Code/Title 17/Chapter 1/Section 108

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Sec. 108. Limitations on exclusive rights: Reproduction by libraries and archives

(a) Except as otherwise provided in this title and notwithstanding the provisions of section 106, it is not an infringement of copyright for a library or archives, or any of its employees acting within the scope of their employment, to reproduce no more than one copy or phonorecord of a work, except as provided in subsections (b) and (c), or to distribute such copy or phonorecord, under the conditions specified by this section, if -
(1) the reproduction or distribution is made without any purpose of direct or indirect commercial advantage;
(2) the collections of the library or archives are (i) open to the public, or (ii) available not only to researchers affiliated with the library or archives or with the institution of which it is a part, but also to other persons doing research in a specialized field; and
(3) the reproduction or distribution of the work includes a notice of copyright that appears on the copy or phonorecord that is reproduced under the provisions of this section, or includes a legend stating that the work may be protected by copyright if no such notice can be found on the copy or phonorecord that is reproduced under the provisions of this section.
(b) The rights of reproduction and distribution under this section apply to three copies or phonorecords of an unpublished work duplicated solely for purposes of preservation and security or for deposit for research use in another library or archives of the type described by clause (2) of subsection (a), if -
(1) the copy or phonorecord reproduced is currently in the collections of the library or archives; and
(2) 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.
(c) The right of reproduction under this section applies to three copies or phonorecords of a published work 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 -
(1) the library or archives has, after a reasonable effort, determined that an unused replacement cannot be obtained at a fair price; and
(2) any such copy or phonorecord that is reproduced in digital format is not made available to the public in that format outside the premises of the library or archives in lawful possession of such copy.
For purposes of this subsection, 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.
(d) The rights of reproduction and distribution under this section apply to a copy, made from the collection of a library or archives where the user makes his or her request or from that of another library or archives, of no more than one article or other contribution to a copyrighted collection or periodical issue, or to a copy or phonorecord of a small part of any other copyrighted work, if -
(1) the copy or phonorecord becomes the property of the user, and the library or archives has had no notice that the copy or phonorecord would be used for any purpose other than private study, scholarship, or research; and
(2) the library or archives displays prominently, at the place where orders are accepted, and includes on its order form, a warning of copyright in accordance with requirements that the Register of Copyrights shall prescribe by regulation.
(e) The rights of reproduction and distribution under this section apply to the entire work, or to a substantial part of it, made from the collection of a library or archives where the user makes his or her request or from that of another library or archives, if the library or archives has first determined, on the basis of a reasonable investigation, that a copy or phonorecord of the copyrighted work cannot be obtained at a fair price, if -
(1) the copy or phonorecord becomes the property of the user, and the library or archives has had no notice that the copy or phonorecord would be used for any purpose other than private study, scholarship, or research; and
(2) the library or archives displays prominently, at the place where orders are accepted, and includes on its order form, a warning of copyright in accordance with requirements that the Register of Copyrights shall prescribe by regulation.
(f) Nothing in this section -
(1) shall be construed to impose liability for copyright infringement upon a library or archives or its employees for the unsupervised use of reproducing equipment located on its premises: Provided, That such equipment displays a notice that the making of a copy may be subject to the copyright law;
(2) excuses a person who uses such reproducing equipment or who requests a copy or phonorecord under subsection (d) from liability for copyright infringement for any such act, or for any later use of such copy or phonorecord, if it exceeds fair use as provided by section 107;
(3) shall be construed to limit the reproduction and distribution by lending of a limited number of copies and excerpts by a library or archives of an audiovisual news program, subject to clauses (1), (2), and (3) of subsection (a); or
(4) in any way affects the right of fair use as provided by section 107, or any contractual obligations assumed at any time by the library or archives when it obtained a copy or phonorecord of a work in its collections.
(g) The rights of reproduction and distribution under this section extend to the isolated and unrelated reproduction or distribution of a single copy or phonorecord of the same material on separate occasions, but do not extend to cases where the library or archives, or its employee -
(1) is aware or has substantial reason to believe that it is engaging in the related or concerted reproduction or distribution of multiple copies or phonorecords of the same material, whether made on one occasion or over a period of time, and whether intended for aggregate use by one or more individuals or for separate use by the individual members of a group; or
(2) engages in the systematic reproduction or distribution of single or multiple copies or phonorecords of material described in subsection (d): Provided, That nothing in this clause prevents a library or archives from participating in interlibrary arrangements that do not have, as their purpose or effect, that the library or archives receiving such copies or phonorecords for distribution does so in such aggregate quantities as to substitute for a subscription to or purchase of such work.
(h)(1) For purposes of this section, during the last 20 years of any term of copyright of a published work, a library or archives, including a nonprofit educational institution that functions as such, may reproduce, distribute, display, or perform in facsimile or digital form a copy or phonorecord of such work, or portions thereof, for purposes of preservation, scholarship, or research, if such library or archives has first determined, on the basis of a reasonable investigation, that none of the conditions set forth in subparagraphs (A), (B), and (C) of paragraph (2) apply.
(2) No reproduction, distribution, display, or performance is authorized under this subsection if -
(A) the work is subject to normal commercial exploitation;
(B) a copy or phonorecord of the work can be obtained at a reasonable price; or
(C) the copyright owner or its agent provides notice pursuant to regulations promulgated by the Register of Copyrights that either of the conditions set forth in subparagraphs (A) and (B) applies.
(3) The exemption provided in this subsection does not apply to any subsequent uses by users other than such library or archives.
(i) The rights of reproduction and distribution under this section do not apply to a musical work, a pictorial, graphic or sculptural work, or a motion picture or other audiovisual work other than an audiovisual work dealing with news, except that no such limitation shall apply with respect to rights granted by subsections (b) and (c), or with respect to pictorial or graphic works published as illustrations, diagrams, or similar adjuncts to works of which copies are reproduced or distributed in accordance with subsections (d) and (e).

-SOURCE- 

   (Pub. L. 94-553, title I, Sec. 101, Oct. 19, 1976, 90 Stat. 2546;
   Pub. L. 102-307, title III, Sec. 301, June 26, 1992, 106 Stat. 272;
   Pub. L. 105-80, Sec. 12(a)(4), Nov. 13, 1997, 111 Stat. 1534; Pub.
   L. 105-298, title I, Sec. 104, Oct. 27, 1998, 112 Stat. 2829; Pub.
   L. 105-304, title IV, Sec. 404, Oct. 28, 1998, 112 Stat. 2889.)


-MISC1- 

                      HISTORICAL AND REVISION NOTES                   

                        HOUSE REPORT NO. 94-1476                     
     Notwithstanding the exclusive rights of the owners of copyright,
   section 108 provides that under certain conditions it is not an
   infringement of copyright for a library or archives, or any of its
   employees acting within the scope of their employment, to reproduce
   or distribute not more than one copy or phonorecord of a work,
   provided (1) the reproduction or distribution is made without any
   purpose of direct or indirect commercial advantage and (2) the
   collections of the library or archives are open to the public or
   available not only to researchers affiliated with the library or
   archives, but also to other persons doing research in a specialized
   field, and (3) the reproduction or distribution of the work
   includes a notice of copyright.
     Under this provision, a purely commercial enterprise could not
   establish a collection of copyrighted works, call itself a library
   or archive, and engage in for-profit reproduction and distribution
   of photocopies. Similarly, it would not be possible for a
   non-profit institution, by means of contractual arrangements with a
   commercial copying enterprise, to authorize the enterprise to carry
   out copying and distribution functions that would be exempt if
   conducted by the non-profit institution itself.
     The reference to "indirect commercial advantage" has raised
   questions as to the status of photocopying done by or for libraries
   or archival collections within industrial, profit-making, or
   proprietary institutions (such as the research and development
   departments of chemical, pharmaceutical, automobile, and oil
   corporations, the library of a proprietary hospital, the
   collections owned by a law or medical partnership, etc.).
     There is a direct interrelationship between this problem and the
   prohibitions against "multiple" and "systematic" photocopying in
   section 108(g)(1) and (2). Under section 108, a library in a
   profitmaking organization would not be authorized to:
       (a) use a single subscription or copy to supply its employees
     with multiple copies of material relevant to their work; or
       (b) use a single subscription or copy to supply its employees,
     on request, with single copies of material relevant to their
     work, where the arrangement is systematic" in the sense of
     deliberately substituting photocopying for subscription or
     purchase; or
       (c) use "interlibrary loan" arrangements for obtaining
     photocopies in such aggregate quantities as to substitute for
     subscriptions or purchase of material needed by employees in
     their work.
   Moreover, a library in a profit-making organization could not evade
   these obligations by installing reproducing equipment on its
   premises for unsupervised use by the organization's staff.
     Isolated, spontaneous making of single photocopies by a library
   in a for-profit organization, without any systematic effort to
   substitute photocopying for subscriptions or purchases, would be
   covered by section 108, even though the copies are furnished to the
   employees of the organization for use in their work. Similarly,
   for-profit libraries could participate in interlibrary arrangements
   for exchange of photocopies, as long as the reproduction or
   distribution was not "systematic." These activities, by themselves,
   would ordinarily not be considered "for direct or indirect
   commercial advantage," since the "advantage" referred to in this
   clause must attach to the immediate commercial motivation behind
   the reproduction or distribution itself, rather than to the
   ultimate profit-making motivation behind the enterprise in which
   the library is located. On the other hand, section 108 would not
   excuse reproduction or distribution if there were a commercial
   motive behind the actual making or distributing of the copies, if
   multiple copies were made or distributed, or if the photocopying
   activities were "systematic" in the sense that their aim was to
   substitute for subscriptions or purchases.
     The rights of reproduction and distribution under section 108
   apply in the following circumstances:
     Archival Reproduction. Subsection (b) authorizes the reproduction
   and distribution of a copy or phonorecord of an unpublished work
   duplicated in facsimile form solely for purposes of preservation
   and security, or for deposit for research use in another library or
   archives, if the copy or phonorecord reproduced is currently in the
   collections of the first library or archives. Only unpublished
   works could be reproduced under this exemption, but the right would
   extend to any type of work, including photographs, motion pictures
   and sound recordings. Under this exemption, for example, a
   repository could make photocopies of manuscripts by microfilm or
   electrostatic process, but could not reproduce the work in
   "machine-readable" language for storage in an information system.
     Replacement of Damaged Copy. Subsection (c) authorizes the
   reproduction of a published work duplicated in facsimile form
   solely for the purpose of replacement of a copy or phonorecord that
   is damaged, deteriorating, lost or stolen, if the library or
   archives has, after a reasonable effort, determined that an unused
   replacement cannot be obtained at a fair price. The scope and
   nature of a reasonable investigation to determine that an unused
   replacement cannot be obtained will vary according to the
   circumstances of a particular situation. It will always require
   recourse to commonly-known trade sources in the United States, and
   in the normal situation also to the publisher or other copyright
   owner (if such owner can be located at the address listed in the
   copyright registration), or an authorized reproducing service.
     Articles and Small Excerpts. Subsection (d) authorizes the
   reproduction and distribution of a copy of not more than one
   article or other contribution to a copyrighted collection or
   periodical issue, or of a copy or phonorecord of a small part of
   any other copyrighted work. The copy or phonorecord may be made by
   the library where the user makes his request or by another library
   pursuant to an interlibrary loan. It is further required that the
   copy become the property of the user, that the library or archives
   have no notice that the copy would be used for any purposes other
   than private study, scholarship or research, and that the library
   or archives display prominently at the place where reproduction
   requests are accepted, and includes in its order form, a warning of
   copyright in accordance with requirements that the Register of
   Copyrights shall prescribe by regulation.
     Out-of-Print Works. Subsection (e) authorizes the reproduction
   and distribution of a copy or phonorecord of an entire work under
   certain circumstances, if it has been established that a copy
   cannot be obtained at a fair price. The copy may be made by the
   library where the user makes his request or by another library
   pursuant to an interlibrary loan. The scope and nature of a
   reasonable investigation to determine that an unused copy cannot be
   obtained will vary according to the circumstances of a particular
   situation. It will always require recourse to commonly-known trade
   sources in the United States, and in the normal situation also to
   the publisher or other copyright owner (if the owner can be located
   at the address listed in the copyright registration), or an
   authorized reproducing service. It is further required that the
   copy become the property of the user, that the library or archives
   have no notice that the copy would be used for any purpose other
   than private study, scholarship, or research, and that the library
   or archives display prominently at the place where reproduction
   requests are accepted, and include on its order form, a warning of
   copyright in accordance with requirements that the Register of
   Copyrights shall prescribe by regulation.
     General Exemptions. Clause (1) of subsection (f) specifically
   exempts a library or archives or its employees from liability for
   the unsupervised use of reproducing equipment located on its
   premises, provided that the reproducing equipment displays a notice
   that the making of a copy may be subject to the copyright law.
   Clause (2) of subsection (f) makes clear that this exemption of the
   library or archives does not extend to the person using such
   equipment or requesting such copy if the use exceeds fair use.
   Insofar as such person is concerned the copy or phonorecord made is
   not considered "lawfully" made for purposes of sections 109, 110 or
   other provisions of the title.
     Clause (3) provides that nothing in section 108 is intended to
   limit the reproduction and distribution by lending of a limited
   number of copies and excerpts of an audiovisual news program. This
   exemption is intended to apply to the daily newscasts of the
   national television networks, which report the major events of the
   day. It does not apply to documentary (except documentary programs
   involving news reporting as that term is used in section 107),
   magazine-format or other public affairs broadcasts dealing with
   subjects of general interest to the viewing public.
     The clause was first added to the revision bill in 1974 by the
   adoption of an amendment proposed by Senator Baker. It is intended
   to permit libraries and archives, subject to the general conditions
   of this section, to make off-the-air videotape recordings of daily
   network news casts for limited distribution to scholars and
   researchers for use in research purposes. As such, it is an adjunct
   to the American Television and Radio Archive established in Section
   113 of the Act [2 U.S.C. 170] which will be the principal
   repository for television broadcast material, including news
   broadcasts, the inclusion of language indicating that such material
   may only be distributed by lending by the library or archive is
   intended to preclude performance, copying, or sale, whether or not
   for profit, by the recipient of a copy of a television broadcast
   taped off-the-air pursuant to this clause.
     Clause (4), in addition to asserting that nothing contained in
   section 108 "affects the right of fair use as provided by section
   107", also provides that the right of reproduction granted by this
   section does not override any contractual arrangements assumed by a
   library or archives when it obtained a work for its collections:
   For example, if there is an express contractual prohibition against
   reproduction for any purpose, this legislation shall not be
   construed as justifying a violation of the contract. This clause is
   intended to encompass the situation where an individual makes
   papers, manuscripts or other works available to a library with the
   understanding that they will not be reproduced.
     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.
     Multiple Copies and Systematic Reproduction. Subsection (g)
   provides that the rights granted by this section extend only to the
   "isolated and unrelated reproduction of a single copy or
   phonorecord of the same material on separate occasions." However,
   this section does not authorize the related or concerted
   reproduction of multiple copies or phonorecords of the same
   material, whether made on one occasion or over a period of time,
   and whether intended for aggregate use by one individual or for
   separate use by the individual members of a group.
     With respect to material described in subsection (d) - articles
   or other contributions to periodicals or collections, and small
   parts of other copyrighted works - subsection (g)(2) provides that
   the exemptions of section 108 do not apply if the library or
   archive engages in "systematic reproduction or distribution of
   single or multiple copies or phonorecords." This provision in S. 22
   provoked a storm of controversy, centering around the extent to
   which the restrictions on "systematic" activities would prevent the
   continuation and development of interlibrary networks and other
   arrangements involving the exchange of photocopies. After thorough
   consideration, the Committee amended section 108(g)(2) to add the
   following proviso:
       Provided, that nothing in this clause prevents a library or
     archives from participating in interlibrary arrangements that do
     not have, as their purpose or effect, that the library or
     archives receiving such copies or phonorecords for distribution
     does so in such aggregate quantities as to substitute for a
     subscription to or purchase of such work.

     In addition, the Committee added a new subsection (i) to section
   108 [this section], requiring the Register of Copyrights, five
   years from the effective date of the new Act and at five-year
   intervals thereafter, to report to Congress upon "the extent to
   which this section has achieved the intended statutory balancing of
   the rights of creators, and the needs of users," and to make
   appropriate legislative or other recommendations. As noted in
   connection with section 107, the Committee also amended section
   504(c) in a way that would insulate librarians from unwarranted
   liability for copyright infringement; this amendment is discussed
   below.
     The key phrases in the Committee's amendment of section 108(g)(2)
   are "aggregate quantities" and "substitute for a subscription to or
   purchase of" a work. To be implemented effectively in practice,
   these provisions will require the development and implementation of
   more-or-less specific guidelines establishing criteria to govern
   various situations.
     The National Commission on New Technological Uses of Copyrighted
   Works (CONTU) offered to provide good offices in helping to develop
   these guidelines. This offer was accepted and, although the final
   text of guidelines has not yet been achieved, the Committee has
   reason to hope that, within the next month, some agreement can be
   reached on an initial set of guidelines covering practices under
   section 108(g)(2).
     Works Excluded. Subsection (h) provides that the rights of
   reproduction and distribution under this section do not apply to a
   musical work, a pictorial, graphic or sculptural work, or a motion
   picture or other audiovisual work other than "an audiovisual work
   dealing with news." The latter term is intended as the equivalent
   in meaning of the phrase "audiovisual news program" in section
   108(f)(3). The exclusions under subsection (h) do not apply to
   archival reproduction under subsection (b), to replacement of
   damaged or lost copies or phonorecords under subsection (c), or to
   "pictorial or graphic works published as illustrations, diagrams,
   or similar adjuncts to works of which copies are reproduced or
   distributed in accordance with subsections (d) and (e)."
     Although subsection (h) generally removes musical, graphic, and
   audiovisual works from the specific exemptions of section 108, it
   is important to recognize that the doctrine of fair use under
   section 107 remains fully applicable to the photocopying or other
   reproduction of such works. In the case of music, for example, it
   would be fair use for a scholar doing musicological research to
   have a library supply a copy of a portion of a score or to
   reproduce portions of a phonorecord of a work. Nothing in section
   108 impairs the applicability of the fair use doctrine to a wide
   variety of situations involving photocopying or other reproduction
   by a library of copyrighted material in its collections, where the
   user requests the reproduction for legitimate scholarly or research
   purposes.

                               AMENDMENTS                            
     1998 - Subsec. (a). Pub. L. 105-304, Sec. 404(1)(A), (B), in
   introductory provisions, substituted "Except as otherwise provided
   in this title and notwithstanding" for "Notwithstanding" and
   inserted ", except as provided in subsections (b) and (c)" after
   "of a work".
     Subsec. (a)(3). Pub. L. 105-304, Sec. 404(1)(C), inserted before
   period at end "that appears on the copy or phonorecord that is
   reproduced under the provisions of this section, or includes a
   legend stating that the work may be protected by copyright if no
   such notice can be found on the copy or phonorecord that is
   reproduced under the provisions of this section".
     Subsec. (b). Pub. L. 105-304, Sec. 404(2), substituted "three
   copies or phonorecords" for "a copy or phonorecord", struck out "in
   facsimile form" after "duplicated", and substituted "if - 
       "(1) the copy or phonorecord reproduced is currently in the
     collections of the library or archives; and
       "(2) 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."
   for "if the copy or phonorecord reproduced is currently in the
   collections of the library or archives."
     Subsec. (c). Pub. L. 105-304, Sec. 404(3), substituted "three
   copies or phonorecords" for "a copy or phonorecord", struck out "in
   facsimile form" after "duplicated", inserted "or if the existing
   format in which the work is stored has become obsolete," after
   "stolen,", substituted "if - 
       "(1) the library or archives has, after a reasonable effort,
     determined that an unused replacement cannot be obtained at a
     fair price; and
       "(2) any such copy or phonorecord that is reproduced in digital
     format is not made available to the public in that format outside
     the premises of the library or archives in lawful possession of
     such copy."
   for "if the library or archives has, after a reasonable effort,
   determined that an unused replacement cannot be obtained at a fair
   price.", and inserted concluding provisions.
     Subsecs. (h), (i). Pub. L. 105-298 added subsec. (h) and
   redesignated former subsec. (h) as (i).
     1997 - Subsec. (e). Pub. L. 105-80 substituted "fair price" for
   "pair price" in introductory provisions.
     1992 - Subsec. (i). Pub. L. 102-307 struck out subsec. (i), which
   read as follows: "Five years from the effective date of this Act,
   and at five-year intervals thereafter, the Register of Copyrights,
   after consulting with representatives of authors, book and
   periodical publishers, and other owners of copyrighted materials,
   and with representatives of library users and librarians, shall
   submit to the Congress a report setting forth the extent to which
   this section has achieved the intended statutory balancing of the
   rights of creators, and the needs of users. The report should also
   describe any problems that may have arisen, and present legislative
   or other recommendations, if warranted."

                    EFFECTIVE DATE OF 1998 AMENDMENTS                 
     Pub. L. 105-304, title IV, Sec. 407, Oct. 28, 1998, 112 Stat.
   2905, provided that: "Except as otherwise provided in this title
   [enacting section 4001 of Title 28, Judiciary and Judicial
   Procedure, amending this section, sections 112, 114, 701, and 801
   to 803 of this title, section 5314 of Title 5, Government
   Organization and Employees, and section 3 of Title 35, Patents, and
   enacting provisions set out as notes under sections 112 and 114 of
   this title], this title and the amendments made by this title shall
   take effect on the date of the enactment of this Act [Oct. 28,
   1998]."
     Pub. L. 105-298, title I, Sec. 106, Oct. 27, 1998, 112 Stat.
   2829, provided that: "This title [amending this section and
   sections 203 and 301 to 304 of this title, enacting provisions set
   out as a note under section 101 of this title, and amending
   provisions set out as notes under sections 101 and 304 of this
   title] and the amendments made by this title shall take effect on
   the date of the enactment of this Act [Oct. 27, 1998]."

-SECREF- 

                  SECTION REFERRED TO IN OTHER SECTIONS               
     This section is referred to in sections 106, 501, 511, 602 of
   this title; title 2 section 170; title 18 section 2319.

-End-

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