§ 108. — Limitations on exclusive rights: Reproduction by libraries and archives.
[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
January 24, 2002 and December 19, 2002]
[CITE: 17USC108]
TITLE 17--COPYRIGHTS
CHAPTER 1--SUBJECT MATTER AND SCOPE OF COPYRIGHT
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apply to three copies or phonorecords of an unpublished work duplicated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).
(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.)
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].''
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.
