copyright law lets libraries distribute Twilight Zone material ... in full

by Sid Steward

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I discovered a section of copyright law that gives libraries exceptional privileges. It seems to address some of the points emerging around the Google Library debate. It's called Section 108 -- Limitations on exclusive rights: Reproduction by libraries and archives.

Subsection (a) looks bad for Google Library

In subsection (a), it outlines a scenario where libraries are allowed to reproduce copyrighted content. This first scenario pointedly does not allow digital distribution. While this scenario (detailed below) doesn't really touch on Google Library, it does shed some light on the spirit of copyright law. Legistators have already given libraries special powers, and they have shown a prejudice against digital media.

Subsection (h) looks good for Readers

In subsection (h), it outlines a scenario where libraries are allowed to reproduce and distribute content
in numerous forms, even digital. This scenario seems designed to address Tim's concern over works in the Twilight Zone. That is, works that are under copyright but no longer in print and possibly orphaned.

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

Here's the part that outlines cases where the library is allowed limited reproduction and distribution. I added the emphasis:


(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
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.


Here's the part that seems to allow reproduction and distribution of 'orphaned' works, even in digital format:

(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)


2005-11-07 18:41:36
Pointing the Right Direction
Unfortunately, the first exception says the exact opposite of what Sid Steward suggests. Making three copies of unpublished works for preservation, security or research inside the "premises of the library," isn't supplying unlimited copies of a published work to the entire world. A narrow permission implies that anything broader isn't permitted.

The second is a bit more encouraging since it deals with published works in their last 20 years of copyright, which would mean roughly the 1923-43 range. There are limitations, but nothing that might not be amended, broadened, and clarified.

Keep in mind, however, that all three clauses have to be met, not just the first, which seems to roughly translate to "out of print." Clause B suggests that if a book is available used at a "reasonable price"--and many are--it wouldn't qualify. Viewed from one angle, that doesn't make much sense since copyright holders get nothing from the sale of used books. But perhaps the clause is there because an ample supply of used books, existing because of free copying, would make publishers hesitant to bring a book back into print.

At first, clause C seems odd, since the copyright holder is simply asserting that the conditions of A and B are met. In practice, that probably means that someone who wants to copy contrary to the expressed wishes of copyright holder to the Register of Copyrights would have the burden of proving that neither A nor B was true.

What these excerpts do point out is:

1. That legislation may the best way to create useful, balanced, and fair-to-all exceptions to copyright law. These clauses exist because libraries, archives and educational institutions lobbied for them with what they got probably restricted by the lobbying of publishers. If properly organized, the potential users of schemes like Google Print would be a potent lobbying force.

2. Here the Register of Copyrights provides a "one-stop" place for copyright holders to opt out. That's as it should be. Copyright is a legal right and copyright holders should not be forced to police Google Print and a thousand of its clones to opt out. In this Internet age, the government is the proper place for copyright holders to opt in/out or to set conditions on copying--conditions that might be broad or narrow (like Creative Commons) and that might include a referral to Google Print, Amazon or whoever.

Keep in mind that modern technologies make copying far cheaper than it was in the days of traditional publishing and far less hassle than copying a book page by page at a copy machine. It's possible to set up a scheme in which everyone wins. For electronic copies, virtually all the cost of copying can be passed on to a copyright holder while still keeping the cost less than if the book was in print. A reader can get an out-of-print book for less. A writer can get royalties as good as or better than if it were in print. Everyone has reason to be happy.

--Mike Perry, Inkling Books, Seattle

2005-11-07 22:49:56
updated post
I clarified my post and added material... hope it makes better sense now.
2005-11-07 23:13:14
It clearly states that the copies may only be used inside the premises of the library itself.
This is to ensure that rare original works aren't damaged by handling as the library can make a copy in some form available to readers instead.

And Google of course is no library, despite what they claim.