Many questions on “Ask the Lawyer” relate 17 U.S. Code, Section 108, which carves out exceptions to infringement for certain library and archive-provided services, including:
o On-site patron copies
o Copies of book or article for inter-library loan
o Preservation copies
o Format transfer due to obsolescence.
Different and distinct from Fair Use, Section 108 is a critical protection for librarians and archivists. It is relied on every day for essential services.
Because 108 is so fundamental, many government agencies, trade associations and institutions maintain excellent guidance on it. Whenever deeper background in a question might be helpful, “Ask the Lawyer” will link to those resources.
Before assessing the facts under 108’s 9 different sub-sections (which address the different types of copying are allowed, and dis-allowed), Section 108 requires that your institution:
If these factors are not present, your library or archives might not be able to claim a 108 exemption, even if the other criteria (such as searching for a commercially available copy, or confirming that a format is obsolete) are met.
To ensure your institution reliably qualifies for 108, it is advisable that your library or archives have a Section 108 compliance policy, and that the policy and its related practices are annually reviewed.