Re: Re: Interpreting 17, 108 (a)

I thank David Post for his reply, but I must admit that I remain a bit perplexed. The subsections either expand the copying to three copies, or give particular rules for copying for other libraries (interlibrary loan), but do not seem to negate this "one copy" mentioned in subsection (a). It seems to me that the primary limitations are: fair use, and the prohibition in (g) 2) against "systematic" copying. But I still read that there is this general permission for a single copy that is rather ill-defined. Does anyone else see that? Is it significant?

I ask this because in discussions of the copyright implications of Google Print, some posts that I have seen (on this list and others) imply that the library does have a right to make a single copy of items in its collection, if for non-commercial purposes. I was wondering if that is based on an interpretation of 108 (a). Although Google Print would appear to be systematic (and possibly for-profit), the single copies made for digital reserves could possibly be allowed under 108 (a) if we feel that single, non-systematic copies are allowed by that subsection.

kc

David Post wrote:

> 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.
> *********
> 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
> *********
>
> 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;"
>
>
>
>
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Karen Coyle / Digital Library Consultant
kcoyle@kcoyle.net http://www.kcoyle.net
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