NH Law About ...: Copyright First Responders NH: Library Exceptions (§ 108)

If you're a librarian wrestling with a copyright question,

Ask a Copyright First Responder!

Melinda P. Dolan, Systems & E-Resources Librarian
Phillips Exeter Academy

Mary S. Searles, Law Librarian
New Hampshire Law Library

Jay L. Colbert, Metadata & Discovery Strategy Librarian
Dimond Library, University of New Hampshire

Anne Jung-Mathews, Outreach Librarian
Plymouth State University

About Library Exceptions (§ 108)

Section 108 has been called the library "superpower" but it's a superpower many librarians overlook when trying decide about the use of a copyrighted work. Often, we jump straight to fair use and forget that we have our own set of exceptions to copyright law.

17 U.S. Code § 108 - Limitations on exclusive rights: Reproduction by libraries and archives
The Copyright First Responders Model / Kyle K. Courtney.
Section 108 of the U.S. Copyright Act provides under certain conditions it is not infringement for a library or archives, or its employees acting within the scope of their employment, to reproduce or distribute copies of a work. It is an amazing library exception since the copying that is allowed under this law, if done by an individual, might be infringement. This Section is an affirmative statement by Congress that libraries and archives have a special mission in preservation and access that allows the copying and distribution of materials. (Follow the link to read more.)

Copyright Law for Librarians and Educators by Kenneth D. Crews
Call Number: KF2995 .C74 2020
ISBN: 9780838916292
Publication Date: 2020
Section 108 allows libraries, within limits, to make copies of many works for the following three purposes; for preservation of library collections; for private study by users; and for participation in interlibrary loan arrangements. ... Before a library can benefit from Section 108, it must comply with certain general requirements and limits. (pp. 169-170)
The Librarian's Copyright Companion by James S. Heller, Paul Hellyer, Benjamin J. Keele
Call Number: KF2995 .H45 2012
ISBN: 9780837738727
Publication Date: 2012
Before a library may make a copy under section 108(c) it must have made a reasonable effort to acquire an unused replacement copy, and must not have been able to find such a copy at a fair price. ... What is a fair price? In 1983, the Register of Copyrights wrote that a fair price for a book or periodical is that which is charged by a publisher, a dealer specializing in remainders, or a jobber or dealer in bulk issues of periodicals, but not if the only unused copies are available at high prices from rare or antique dealers.

U.S. Copyright Office. Circular 21: Reproduction of Copyrighted Works by Educators and Librarians
Basic information on some of the most important legislative provisions and other documents dealing with reproduction by librarians and educators.
Software Preservation Network. Section 108 and Software Collections: A User's Guide.
"This user’s guide explains Section 108 of the U.S. Copyright Act in the context of software collections in libraries and archives. Like fair use, Section 108 of the U.S. Copyright Act provides important rights for libraries and archives engaged in software preservation. Unlike fair use, which is broad and flexible, Section 108 applies only to specific uses by qualified libraries and archives. Section 108 provides a helpful baseline, which is then augmented by fair use. In the places where it applies, Section 108 provides helpful certainty."

Library Exceptions Tools

Columbia University Libraries. Copyright Checklist for Libraries: Providing Copies for Private Study
Copyright Advisory Network. Section 108 Spinner
This simple tool can help you determine if your reproduction is covered by Section 108 and collect information to support your use of the exception. Click on "Create PDF" to help collect information that could be useful in supporting your use of Section 108, should it ever be called into question.