Copyright law balances the public interest in having intellectual material available for consumption and research with the author’s interest in having exclusive rights to control the use of his work for a period of time. Libraries serve the public interest by maintaining archives of unpublished or out-of-print works and preserving material in the public domain. Section 108 of the 1976 Copyright Act provides exceptions that allow libraries to perform their vital functions without infringing copyright.
In order to qualify for the exemptions listed in Section 108, a library must be nonprofit and cannot gain any commercial advantage from copying. The library must be open to the public or, in the case of universities and archives, available to researchers. The U.S. Copyright Office has printed a warning for libraries to display prominently where orders for copies are placed, and to include on order forms. All copies should include a notice of copyright. Libraries are allowed to charge for copies, but these charges cannot exceed the library’s mechanical cost of producing the copy.
Under Section 108, libraries are permitted to make one copy of an unpublished work in order to preserve the original. For example, a library could make a copy of an old manuscript that had become too delicate to withstand scrutiny by multiple users. If a published work is damaged and a replacement copy cannot be purchased, the library may also make a copy of that work to replace the damaged copy. This exception applies only to rare, out-of-print works that a librarian finds, after reasonable investigation, cannot be obtained otherwise.
Academic libraries are permitted to produce a limited number of copies of a small portion of a copyrighted work and hold them on reserve for classroom use. Teachers or professors identify an article or book chapter to be placed on reserve. These reserves are only available to students in that class for a limited period of time. Publishers and authors have agreed with educators that this is a fair use of copyrighted material, provided only a small portion of the work is copied and the copying is not a substitute for purchasing copies of the original work.
A library can also make a copy of an item in its collection to send to another library for research purposes, rather than risk the integrity of the original. Interlibrary loans assist in research and circulation of unpublished material, but should not be used by a library as a substitute for purchasing material that could be obtained commercially. The law considers such use an indirect commercial advantage and it does not qualify for the exemption.
Many library uses not explicitly exempted may also fall under the statutory exemption for fair use. Section 107 of the 1976 Copyright Act proposes a balancing test that weighs the character of the use, type of work copied, amount of the work copied, and effect the copying may have on the market for the original work. For example, although Section 108 generally restricts multiple copying, some instances of multiple copying, such as for classroom use or reserves, would probably be considered fair use.