Re: Interpreting 17, 108 (a)

From: David Post <Postd[_at_]erols.com>
Date: Wed, 02 Nov 2005 17:10:45 -0500

Very interesting ...

I don't think the "direct or indirect commercial advantage" language is the important qualifying language, but rather the "under the conditions specified by this section" language in the preamble portion of subsec. (a). that is, each of the subsequent subsections begins with the language: "the rights of reqproduction and distribution under this section apply to . . . " and then it lists the conditions under which reproduction/distribution is permissible. Taken together, I think this means that if you do NOT fit into one of the specified cubbyholes defined in those subsections, it IS an infringement of copyright to reproduce or distribute something in your collection.

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David G. Post Professor, Temple Law School David.Post[_at_]Temple.edu
Fall 2005: Visiting Prof., New York Law School 212-431-2813
Papers, etc.: http://www.davidpost.com

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At 06:25 PM 11/1/2005 Tuesday -0500, Karen Coyle wrote:
>[snip] Things are less clear when I read 108 (a), which begins:
>
>"(a) Except as otherwise provided in this title
>and notwithstanding the provisions of section
>106,
><http://www.copyright.gov/title17/92chap1.html#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 — "
>
>The "if" clauses primarily have to do with being
>a bona fide non-profit library, and don't make
>any particular limitation on the distribution of the copy.
>
>I can't help but read this as saying that a bona
>fide non-profit library can make one copy of any
>item in their collection, and can distribute
>that copy as they see fit. But this 1) doesn't
>seem right, because it would mean that every
>library could copy everything in the library,
>regardless of the availability of those items in
>the market, essentially doubling their
>collections without benefitting publishers 2)
>isn't what libraries are doing nor how they are
>interpreting 108; the library interpretation
>follows (b) and (c), but no one mentions the
>"one copy, no restrictions" clause.
>
>So where have I gone wrong? What devilish twist
>in the language of 108 have I missed that would
>set me right? Is the clue in 108 (a)(1):
>
>"(1) the reproduction or distribution is made
>without any purpose of direct or indirect commercial advantage;"
Received on Thu Nov 03 2005 - 03:10:45 GMT