Copyright: Librarians

Libraries are often asked to provide copies of materials in their collections to patrons for the purposes of independent research and scholarship. Under § 108(d) and § 108(e), libraries can legally provide a single copy of materials to patrons under certain circumstances.

• § 108(d) allows for the copying of a single article from a journal or of a small portion of a book as long as the copy becomes the property of the patron, the library has no knowledge that it will be used for infringement and the article contains a warning of copyright protection.
• Libraries can also make a single copy of an entire journal issue or book under Section § 108(e). In order to do so, the library needs to follow the same steps listed above for § 108(d), as well as determine that the item is not available for sale at a reasonable price.
• When taking orders for copying under § 108(d) and § 108(e), a library needs to provide a notice of copyright protection. This notice has to follow the precise language that is set by the U.S. Copyright Office. The notice needs to be displayed at the place where in-person orders are taken, or placed directly on order forms.
  • The language for the required warning is as follows:

Notice Warning Concerning Copyright Restrictions

The copyright law of the United States (title 17, United States Code) governs the making of photocopies or other reproductions of copyrighted material.

Under certain conditions specified in the law, libraries and archives are authorized to furnish a photocopy or other reproduction. One of these specific conditions is that the photocopy or reproduction is not to be “used for any purpose other than private study, scholarship, or research.” If a user makes a request for, or later uses, a photocopy or reproduction for purposes in excess of “fair use,” that user may be liable for copyright infringement.

This institution reserves the right to refuse to accept a copying order if, in its judgment, fulfillment of the order would involve violation of copyright law.

• To help with understanding and complying with § 108(d) and § 108(e) when fulfilling a patron request for a copy of a work in the library’s collection, please see the Copyright Checklist for Libraries: Providing Copies for Private Study (Columbia University Libraries, PDF).

Library contracts can limit your § 108 rights to personal copying:

§ 108 (f)(4) says that if you enter into a contract in the process of acquiring a work for your collection, and the contract limits your rights to copy in some way, the contract prevails over your statutory rights. In other words, one can contract away their rights under § 108 and may not be able to make copies that would normally be covered under § 108.

• Please see the library-licensed page and the "Digital Libraries and Licensing" tab in the box below for more details on terms of use and contracts or licenses for the library's electronic collection resources.

A single library cannot have every item in its collection that patrons may want to use. In order to provide access to materials not owned or subscribed to by the library, the library will often request a copy from another library through Interlibrary Loan (ILL). In some cases the lending library needs to be able to copy an item from the collection rather than sending the original. § 108(d) and (e) allow for this type of copying under certain circumstances.

• Upon request from one of its users or the user of another qualified library or archives, a qualified library or archives is entitled to make a copy of:
  • "no more than one article or other contribution to a copyrighted collection or periodical issue;"
  • "a small part of any other copyrighted work;" or
  • an "entire work, or...substantial part of it...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,"
• So long as:
  • that single copy (not multiple) becomes the property of requesting user (aggregate requests cannot engage the library or archives in a systematic reproduction or distribution;
  • the institution had no notice that the copy or phonorecord would be used for any purpose other than private study, scholarship, or research;
  • the institution displays on forms or "at the place where orders are accepted" a copyright warning in accordance with regulations from the U.S. Copyright Office; and 
  • the work copied is not 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 qualified library may either facilitate a requester or be a responder in the interlibrary loan context. Requesters are responsible for compliance with copyright law and, where applicable, the CONTU Guidelines (although these are guidelines and not language written in 17 U.S.C.). Responders only have to ask whether the requester has complied. 

• Libraries are required to reproduce any copyright notice that appears on the work, and if there is none, to include a notice similar to those libraries have used before the law changed.
  • The language for the required warning is as follows:

Notice Warning Concerning Copyright Restrictions

The copyright law of the United States (title 17, United States Code) governs the making of photocopies or other reproductions of copyrighted material.

Under certain conditions specified in the law, libraries and archives are authorized to furnish a photocopy or other reproduction. One of these specific conditions is that the photocopy or reproduction is not to be “used for any purpose other than private study, scholarship, or research.” If a user makes a request for, or later uses, a photocopy or reproduction for purposes in excess of “fair use,” that user may be liable for copyright infringement.

This institution reserves the right to refuse to accept a copying order if, in its judgment, fulfillment of the order would involve violation of copyright law.

Library contracts can limit § 108 rights for ILL

The licensed terms of use with electronic collection vendors may limit a library's rights to provide ILL. This contract or license prevails over the federal statutory rights built within copyright law. In other words, a library can contract away their rights under § 108.

§ 108(f)(4) Nothing in this section—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.

• Please see the library-licensed page for more details on terms of use and contracts or licenses for the library's electronic collection resources.
• RUSA (Reference and User Services Association through ALA) Model Interlibrary Loan License Clause
• Please read this 3-page handout from Georgia K. Harper's Making Copies: Interlibrary Loan, Copyright Crash Course (2007), CC-BY-NC-SA.

Useful resources

• ILL case law: WILLIAMS & WILKINS CO. v. UNITED STATES, 420 U.S. 376 (1975)
• ALA White Paper "Modern Interlibrary Loan Practices: Moving beyond the CONTU Guidelines" (2020)

Library materials do not last forever. In order to continue providing access to some materials, it may be necessary for a library to make copies to protect original works.

• § 108(b) and § 108(c) allow a library to copy unpublished or published works contained in their collection for the purposes of preservation. Under § 108(b), a library can make 3 copies of an unpublished work for preservation or security reasons. Under 108(c), a library can make 3 copies for the purpose of preservation of a published work in its collection that is damaged, deteriorating, lost, stolen, or in an obsolete format. In order to use § 108(c), the library must first determine that an unused replacement copy is not available at a fair price.
• The library can make digital copies under both § 108(b) and § 108(c), but any digital copies cannot be made available to patrons outside the "premises of the library."

Resource on preservation of library materials

• Before copying materials under § 108(b) or § 108(c), please see the Copyright Checklist for Libraries: Copies for Preservation or Replacement (Columbia University Libraries, PDF). 

Useful points and resources

• Create license or donor agreements for acquisitions (especially in an archives) that are consistently in agreement with copyright law. Some agreements, much like library vendor contracts, may limit the law, reflect the law, or open up uses wider than the law allows (e.g., copying for education, research, or preservation).
• "Study on Copyright Limitations and Exceptions for Libraries and Archives: Updated and Revised (2017 Edition)" Report (WIPO)

During the last 20 years of a published work’s copyright term, according to § 108(h)(1), a library or archives is entitled to “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 (§ 108(h)(2)):

• The work is not subject to normal commercial exploitation;
• A copy of the work cannot be obtained at a reasonable price; and
• The copyright holder has not provided notice of the work being subject to commercial exploitation or available at a reasonable price.

This exemption does not apply to any subsequent uses by users other than such library or archives.

Not all activities performed by libraries fit under § 108. It is still possible for libraries to rely on fair use (§ 107) in order to accomplish certain projects. While § 108 describes very specific allowable activities under detailed limitations, fair use allows libraries to perform activities that were not thought of at the time that § 108 was created.

• For more information on fair use and patrons, please see Sara R. Benson's "Fear and Fair Use: Addressing the Affective Domain" (2019, PDF, CC-BY).

One activity that has become of particular interest to libraries in recent years is digitizing their collections in order to provide broader access for research, preservation, and improved accessibility for eligible persons. Some digitization may be allowed under § 108, but many projects need to depend upon the broader exception of fair use.

• To learn more about some of the legal issues involved in these kinds of digitization projects, see:
  • Best Practices and Planning for Digitization Projects (WebJunction, OCLC, 2018)
  • "Copyright and Cultural Institutions: Guidelines for Digitization for U.S. Libraries, Archives, and Museums" (PDF digital book, Cornell, 2009)
  • Digital Public Library of America (DPLA) and Recollection Wisconsin's Digital Readiness Toolkit, a complete guide to creating and tending a digital collection (pdf version).
    • Video Guides: Planning for Digitization video (YouTube, 8:33, 2015) and Understanding Copyright video (YouTube, 1:03:33, 2015)
  • Legal Issues in Mass Digitization provided by the U.S. Copyright Office
  • National Digital Library Program Planning Checklist, Library of Congress, 1997- no longer being updated, but it remains a valuable resource for reference)
  • The NINCH Guide to Good Practice in the Digital Representation and Management of Cultural Heritage Materials, NINCH, 2002)
• To learn more about reproduction for accessible format for eligible persons, please see:
  • 17 U.S.C. § 121  Limitations on exclusive rights: Reproduction for blind or other people with disabilities. This statute protects the reproduction of works in an accessible format for eligible persons under specific circumstances by "authorized entities." The statute is highly specific about the use of alternative formats, specifying that alternate formats can be distributed "exclusively for use by blind or other persons with disabilities."
  • 17 U.S.C. § 121A Limitations on exclusive rights: reproduction for blind or other people with disabilities in Marrakesh Treaty countries builds on § 121 by expanding eligible persons, accessible format, and authorized entities (beyond libraries). Expands to all previously published literary and musical works. Need to supply two notices: a copyright notice identifying the copyright owner and the date of publication, and a "notice that any further reproduction or distribution in a format other than an accessible format is an infringement."
  • Library of Congress' National Library Service for the Blind and Print Disabled (NLS) site and description of the Chafee Act § 121 and § 121A
    • The National Library Service for the Blind and Print Disabled (NLS) site 
      • "The National Library Service for the Blind and Print Disabled is a free library program of braille and audio materials such as books and magazines circulated to eligible borrowers in the United States and American citizens living abroad by postage-free mail and online download." NLS administers the braille and talking book program, for people with low vision, blindness or physical disabilities who have trouble reading regular print.
      • 36 CFR § 701.6 - Loans of library materials for blind and other print-disabled persons.
    • RI Talking Book Program regional site:
      • Administered by the Rhode Island Office of Library and Information Services (OLIS) and with funding from the Library of Congress, National Library Service, digital audiobooks, braille books and other reading materials and equipment are provided free to Rhode Island residents who are visually impaired, blind or physically handicapped and unable to read standard print materials."
  • Association of Research Libraries' "Report of the ARL Joint Task Force on Services to Patrons with Print Disabilities" (2012)

Not all copying performed in the library is done by library staff. Patrons often copy materials themselves for personal use. Libraries offer the use of copying devices or equipment such as copying machines, scanners, computers, film readers, and printers. § 108(f) gives libraries the ability to provide these copying devices without liability for any infringement that may be committed by the patrons. The library simply is required to place a copyright warning on or near the devices found on the premises of the library or archives. 

Here is an example copyright warning:

Notice:

The copyright law of the United States (title 17, United States Code) governs the making of photocopies or other reproductions of copyrighted material.

Under certain conditions specified in the law, libraries and archives are authorized to furnish a photocopy or other reproduction. One of these specific conditions is that the photocopy or reproduction is not to be “used for any purpose other than private study, scholarship, or research.” If a user makes a request for, or later uses, a photocopy or reproduction for purposes in excess of “fair use,” that user may be liable for copyright infringement.

This institution reserves the right to refuse to accept a copying order if, in its judgment, fulfillment of the order would involve violation of copyright law.

How does a library legally lend books, periodicals, and media?

17 U.S.C. § 109 permits the owner of a lawfully made copy to lend or dispose of it by selling or any other means. This is called the First Sale Doctrine because it permits copyright owners to control only the first sale of a work. After that first sale, copyright owners are out of the loop when it comes to earning a share of any revenues that result from passing the book or periodical on to others. This is the basic legal foundation of our public library system. It also allows book owners to sell their books at garage sales without permission from or payment to the copyright owner. 

This right to dispose of a copy does not include the right to make more copies. If copies must be made to facilitate lending, they are typically authorized by other sections of the law, such as § 107 or § 108, or by the copyright owner. Currently, libraries make copies of print materials in order to lend them to other librarian's patrons via interlibrary loan (ILL). They also may make copies for their own patrons (e.g., research copies or reserve copies) and for archival purposes (e.g., preservation and replacement). 

Be aware that software and music are exempt from the first sale doctrine (see the Computer Software Rental Amendments Act of 1990: prohibits lending for direct or indirect commercial advantage, but does authorize nonprofit libraries to lend computer programs if a copyright warning has been affixed to the computer program packaging; see the Record Rental Amendment of 1984: prohibits lending for commercial advantage). There is a portion of the law that stipulates, "Nothing in the preceding sentence shall apply to the rental, lease, or lending of a phonorecord for nonprofit purposes by a nonprofit library or nonprofit educational institution." Movies are not exempt (but the movie industry tried to amend the law and it failed, see the Consumer Video Sales/Rental Amendment of 1983).

Lending in a digital library

The Digital Millennium Copyright Act (DMCA, 1998) modified § 108 to authorize digitized copies for archival and preservation purposes (not distribution). The right to distribute such a digitized archival or replacement copy of an analog work still requires authorization.

Licensed works

Most library-subscribed electronic or digital works are licensed and the license provides permission to distribute such works.

In general, many licenses will:

• Permit limited access (e.g., only registered students, faculty and staff; or only from a particular domain name);
• Not allow the library to keep a copy of the work when the license is terminated or expires;
• Attempt to limit users' copies and transmissions of the works.

Please be aware: contractual agreements are replacing U.S. copyright law's access provisions in the digital library environment. Contracts or licenses are the immediate source of authority to archive, use and distribute subscribed digital works accessible through the library. The fact that licenses supersede copyright law should alert librarians to pay attention to such contracts and carefully negotiate their terms when possible. 

• Please see the library-licensed page for more details on using the library's resources.

A license is simply permission to use content according to specific terms and conditions. There is no ownership in most cases.

License considerations, when possible, should include the following:

Protected expected uses

Protecting expected uses is one of the most important issues in library licensing. Once acquired, electronic access invites a wide range of uses. For example, faculty may assign course readings by simply pointing to them from Blackboard or Leganto. This means that students and faculty will wish to link to, download, store and print licensed works. The library must acquire enough rights to eliminate the need to ask for additional permission to make customary and expected educational uses of licensed resources.

Electronic collection vendors are concerned about their legal protections under copyright law and often try to obtain the security they feel they need with restrictive contract provisions. They may be unwilling to give open-ended rights to use their data. It is possible to define more specifically what users need, but it is important to avoid too narrow a definition. If the library expects the electronic collection licenses to meet the needs of the library's mission, the library should strive to the best of its abilities to acquire the rights to accomplish that objective.

Vendor's requirement that customer indemnify vendor

There is little basis for libraries to be asked to indemnify the vendor of an electronic collection for anything. The vendor chooses the data, has the responsibility to obtain all needed rights to distribute the data, and will profit from the use of the data. The vendor should ideally bear financial responsibility for harms caused by the use of the data in accordance with the terms of the license agreement.

Vendor's indemnification of customer for intellectual property infringement

The library should expect that vendors will develop their products without infringing the intellectual property rights of others. There are two common ways to address this concern in a contract. The first is to ask the vendor for a warranty. A warranty is the vendor's guarantee that the software or collection does not infringe intellectual property; this guarantee is difficult to obtain from a vendor as it is costly to them. Ultimately, it is a business decision whether to accept a contract that does not meet normal expectations.

Resources for Licensing in the Library

• ARL's Copyright and Contracts: Issues & Strategies (2022) Whitepaper
• Copyrightlaws.com provides a Simple Guide to Licensing Electronic Resources: How to Address your Licensing Issues with Confidence
• Library Futures' How To Read A Contract (MAR 2024)
• ONEAL Project's Resources (how to and model language)

Model Licenses

• Library of Congress (LOC) Model License for Electronic Resources (PDF, 2018)
• Liblicense, hosted by the Center for Research Libraries, has established a list of principles to help guide libraries that purchase access to electronic resources. Liblicense Model License
• RUSA (Reference and User Services Association through ALA) Model Interlibrary Loan License Clause

Note for librarians that are not lawyers: Throughout your dealings with licensing issues, keep in mind that you’re not a lawyer and don’t provide legal advice or opinions.

Transactional Copyright Licensing

Transactional licensing allows academic institutions to license permission one transaction at a time as necessary. Transactional licensing requires academic institutions establish relationships with companies like the Copyright Clearance Center and with individual publishers (e.g., Naval Institute Press). Transactional licensing does not provide a physical or digital copy; it is only a permission license to use a legally obtained copy of a covered work under specified academic circumstances for a limited time.

Transactional licensing also requires diligent and thoughtful institutional work to educate and inform students, faculty, and staff of their rights and responsibilities under copyright law. This helps the academic community know when to ask for permission and how to weigh the 4th factor of fair use (market effect).

Transactional licensing lowers the risk of lawsuits, but it does not eliminate it entirely for two reasons:

• Academic institutions generally rely on fair use to exempt some copies from obtaining permissions and paying licensing fees. There will always be activities that publishers think are outside the scope of fair use, even if academics feel strongly that such activities are within the bounds of fair use. Only a federal court can ultimately determine if a use is fair.

• In general, copying is a highly decentralized activity taking place in various places within an academic institution. This kind of copying is very hard to coordinate for the purposes of reporting and paying permission fees when needed. Institutional education, however, can help with copyright awareness.

Institutional Copyright Licensing

In 2007, the Copyright Clearance Center (CCC) introduced the first widely available institutional annual license for universities. Institutional licensing aims to assist academics comply with copyright law, especially where a license covers a broad range of copying types, such as reserve and research copies, administrative copies, and other rights including rights to create, display and transmit digital copies and to make print copies from digital works. The institutional copyright annual license provided by CCC covers a select amount of publishers and is not a "blanket license" for copying of all rightsholders' materials. The annual license does not provide a physical or digital copy; it is only a license to use a legally obtained copy of a covered work under certain academic circumstances during the duration of the annual license. If the annual license is not renewed, permission is no longer granted for using those covered works under those circumstances.

Note: It is important for academic faculty to weigh the four factors of fair use before deciding to purchase licensing. 

Is a library or college an Internet Service Provider (ISP)?

Title II of the Digital Millennium Copyright Act (DMCA, 1998) provides safe harbors from certain copyright infringements by limiting the liability of internet service providers (ISPs). This safe harbor protects academic institutions that provide internet services that host content provided by others to their students, faculty and staff.

The definition of "service provider" from the statute is the following:

(k) Definitions.—

(1) Service provider.—(A) As used in subsection (a), the term “service provider” means an entity offering the transmission, routing, or providing of connections for digital online communications, between or among points specified by a user, of material of the user’s choosing, without modification to the content of the material as sent or received.

(B) As used in the section, other than subsection (a), the term "service provider" means a provider of online services or network access, or the operator of facilities therefore, and includes an entity described in subparagraph (A).

The DMCA gives ISPs some protection from the usual remedies that a copyright owner is entitled to when their rights have been infringed. It creates a way other than lawsuits for copyright owners and ISPs to handle alleged infringements involving materials passing through or residing on an ISP's network server. There is no requirement that an entity entitled to take advantage of these liability limitations must take advantage of them, either in general, or even after the entity has registered an agent. Compliance with the statute's provisions is completely voluntary. 

The DMCA provides liability limitations for the following kinds of activities:

• "Conduit activities" that are largely automatic activities of computers connected to the internet and for which there is no explicit requirement to register an agent to obtain the law's protections:
  • Transmitting or routing material through a system or network controlled by or for the service provider;
  • Providing connections for material through such a system or network;
  • Intermediate and transient storage of that material in the course of transmitting, routing or providing connections; 
  • Intermediate and temporary storage of material on a system or network controlled or operated by or for the service provider ("system caching").
• Long-term storage of information on the service provider's system or network, for which you must register an agent to obtain the law's protections:
  • Storage at the direction of a user of material that resides on a system or network controlled or operated by or for the service provider;
  • Referring or linking users to an online location containing infringing material or infringing activity, by using information location tools, including a directory, index, reference, pointer, or hypertext link.
  • Taking material down when a copyright owner alleges infringement or or when you learn facts or circumstances from which infringement is apparent, and putting it back up if the page owner says there's been a misidentification or mistake by the copyright owner. 
  • To access the DMCA Designated Agent Directory, please open this page hosted by the U.S. Copyright Office.