Digital Libraries and the Application of Section 108 of the U.S. Copyright Act
Prepared in furtherance of the Digital Music Library Project
National Science Foundation
NSF Award No. 9909068
By Kenneth D. Crews
Indiana University School of Law-Indianapolis
and IU School of Library and Information Science
Associate Dean of the Faculties
Indiana University Purdue University Indianapolis
Draft: 6 December 2001
This material is based upon work supported by the National Science Foundation under Grant No. 9909068. Any opinions, findings, and conclusions or recommendations expressed in this material are those of the author and do not necessarily reflect the views of the National Science Foundation.
An earlier paper in this series outlines the fundamental structure of American copyright law: Copyright grants exclusive rights to the copyright owner, but tempers those rights with a series of limitations or exceptions.1 These exceptions explicitly serve as opportunities for segments of the public to use copyright protected works without committing copyright infringement. Section 108 is one such limitation on the rights of the copyright owner, and it allows libraries to make and distribute copies of materials for specified purposes under specified conditions.
This paper examines in detail the meaning and application of Section 108, with particular reference to its potential implications for the Digital Music Library (DML). An overview of this statute will also reveal immediately that the exception is filled with conditions and limitations. It applies only to specified activities conducted by libraries, although the term "library" is never defined.2 Section 108 permits the library to copy and distribute those works for defined purposes, but only under detailed circumstances. For some purposes the statute applies only to certain types of works, notably textual materials, while for preservation activities, the statute allows the library to copy sound recordings, musical works, and all other types of copyrighted products. Section 108 will at times be a source of frustration and perhaps bewilderment, but when it does apply, it allows libraries to engage in important services that utilize materials in ways that could otherwise constitute copyright infringement.3
The successful application of Section 108 necessitates a thorough consideration of the mechanics and elaborations in the law. This paper attempts to make useful sense of the statute. The approach to Section 108 in this paper is both analytical as well as practical. This examination of the law identifies a set of five questions that can help a librarian work systematically through the law and its meaning.
The following common situations raise questions about the meaning of Section 108 in the context of developing and deploying a digital library:
Situation 1: The library owns a published sound recording of a musical work that is now "out of print." The recording is on a vinyl LP from 1975. Because it has been well used, the sounds are getting weaker, and wear damage on the medium itself is beginning to distract from the music. A nearby library has a clean copy that has been little used through the years. Are you allowed to copy the clean recording and use it to replace your worn version? May you make a digital recording of that work and include it in the digital library for students and researchers to access?
Situation 2: The library has, lawfully, included in a digital library a rich trove of materials related to the life and work of Igor Stravinsky. The materials include scores, recordings, original manuscripts, photographs, maps, and journal articles. These works are accessible to researchers only at terminals located inside the library building. Researchers who come to the library often want clean computer printouts or photocopies of some of the materials for their individual study. The library also receives requests for such copies through the interlibrary loan system. May the library make these copies for researchers at the library and to fulfill the ILL requests?
At the outset, one needs to understand that Section 108 has potential application to these scenarios, because they involve two fundamental facts: (1) They involve the reproduction and perhaps the distribution of copyrighted materials;4 and (2) the actions are undertaken by librarians or other library staff and not by the researchers themselves. Little in Section 108 addresses any copies made by a library user or anyone other than a member of the library's staff.5 Section 108 offers protection explicitly for the library, and presumably the library staff, but does not offer directly any protection for the individual library user.6
Systematic Approach to Section 108
Application of the terms of Section 108 in the context of the DML or any other pursuit can encompass the statutory requirements through a series of questions:7
1. Ground Rules. Has the library complied with the "ground rules" related to access for outside researchers, noncommercial purpose, systematic copying, and notices on copies?
Summary: Any library seeking to have the benefit of Section 108 must comply first with a set of requirements. Most are general conditions that most academic and public libraries already meet: the library must be open to outside researchers, and the copies must not be for commercial purposes. Two other conditions require the library to take watchful steps: the library must avoid "systematic" copying of the same work, and the library must place an appropriate copyright notice on each copy.
2. Permitted Activities. Does the proposed use of copyrighted materials involve one of the three activities: (1) preservation copying; (2) copies for a user's private research; or (3) copies for transmitting through ILL?
Summary: Section 108 allows the library to make and distribute copies of works only for the three purposes detailed in the statute. If the copy is for any other purpose, this statute does not apply.
3. Permitted Works. Is the material to be copied one of the types of works that the library may copy in connection with each of the three activities?
4. Permitted Quantity. Is the quantity of the material to be copied within the amounts permitted under the statute?
Summary: If the library is making the copies for purposes of preservation, the library can apply the law to the full range of possible materials in the collection, including artworks, computer programs, sound recordings, musical scores, and multimedia. By contrast, if the library is making the copies for a user's research or to send through interlibrary loan, the materials are generally limited to textual works and sound recordings. A special problem with sound recordings, however, is that the recording is often of a separately copyrighted musical work, and the statute does not explicitly permit the reproduction of the musical work. Thus, the recording may be of text, speeches, or other nonmusical works.
Summary: For some purposes and under some conditions, an entire work-even a lengthy work-may be reproduced in full. Most notably, the preservation provisions are again the most generous in their application. For the purpose of copies for individual study, however, the copies are often limited to short items-typically a journal article or one excerpt from a larger work.
5. Required Conditions. Has the library complied with the detailed conditions specified in the statute with respect to each of the three activities?
Summary: Section 108 is replete with detailed conditions, and those conditions vary depending on the activity that the library is pursuing. For example, if the library is making copies for individual research, the decision can depend on knowledge of the user's plans and whether the work in question is available on the market. Copies for interlibrary loan are conditioned on the requesting library hold to limits on the quantity of copies requested from a single journal within each year. Congress recently added further conditions if the library is making preservation copies in a digital format. The overall list of conditions is lengthy, but the statute is reasonably clear in specifying them and in conveying their meaning.
Before a library can have the benefits of Section 108, it must comply with certain general requirements and limits:
Summary: Most academic and public libraries will have little trouble complying with this requirement. Many publicly funded libraries are required by local or state law to open their doors and resources to the public. The language of the law suggests that Congress is contemplating a "library" as a physical structure, although some language is flexible enough to encompass a digital library that is accessible to the public.8
Summary: The breadth of this requirement is unclear. It seems clearly to preclude the benefits of the statute for commercial document delivery services, but language in the House Report accompanying passage of the Copyright Act suggests that a corporate library that is part of a commercial enterprise could use the statute.
Summary: This requirement now applies with reasonable specificity. The Digital Millennium Copyright Act of 1998 amended Section 108 to clarify the form of the notice that must appear on each copy made pursuant to this code section.9 All copies made under Section 108 must now include the notice as it appears on the original. If no notice appears on the original then only must include "a legend stating that the work may be protected by copyright." Many libraries satisfy this requirement by reproducing, along with the work, the page with the copyright notice. If the original has no formal notice, then the copy should include a general statement.
Summary: In general, this requirement is to prevent the library from making multiple copies or making single copies of the same work on repeated occasions. Section 108 fundamentally permits the library to make an isolated copy for individual study or to make three copies for preservation purposes. Multiple copies perhaps were seen as too significant an intrusion on the market interests of the copyright owners. A digital library may have considerable trouble complying in full detail with this condition, given that the nature of digital technology often requires multiple copies and the storage of a master file on the server.
Section 108 allows libraries to make copies only for certain specified purposes: to preserve library materials and to make individual copies of materials for private study by users. The statute also provides for the delivery of copies of materials through "interlibrary loan." Interlibrary loan is a variation on the service of providing a copy of a work for an individual's private use. Accordingly, these statutory provisions are actually further elaborations on conditions for the library to be able to make research copies, if the library is sending or receiving them through ILL.
All of these library services could prove important for the future development of the DML. By allowing access to files for research and study, the DML may well be engaged in the making of copies of works that could be within the parameters of the statute. Access at remote locations could in some instances be a form of ILL. The DML may also prove to be a most effective tool for the preservation of library materials; the preservation provisions of Section 108 may prove to be the most accommodating for the reasonable operation of the library, and the preservation provisions apply to all types of works, especially the musical works and sound recordings that are the central focus of the DML.
Not all parts of Section 108 apply equally to all activities encompassed by the statute. This different treatment of works can prove to be decisive in whether to rely on the statute at all. This fact is crucial to the DML, because many provisions of Section 108 apply for all practical purposes only to textual materials. In particular, musical compositions and sound recordings of music may, for some purposes, not be duplicated at all under the authority of this statute.
For purposes of preservation copying, no such limitation applies. All types of works-including musical works, recordings, text, and images-may be reproduced and distributed in accordance with the preservation subsections of 108. [§108(i)]
By contrast, Section 108 details that if the library is making the copies for a patron's private study or for sending in interlibrary loan, the material copied may not be:
(1) a musical work (which includes a musical composition, but does not include a sound recording);
(2) a pictorial, graphic or sculptural work; or
(3) a motion picture or other audiovisual work. [§108(i)]
But the materials may be:
(1) other types of works that are not specifically excluded (which does include textual materials and sound recordings, but if the sound recording is of a musical composition, that work may not be duplicated);
(2) audiovisual works "dealing with news;" and
(3) pictures and graphics "published as illustrations, diagrams, or similar adjuncts" to works that may otherwise be copied. (In other words, if you can copy the article, you can also copy the picture or chart that is in the article.) [§108(i)]
The developers of the DML undoubtedly want to include in the system a rich variety of materials related to the study of music, including images of musical scores, sound recordings, and text, images, and graphics related to the analysis and history of music. For purposes of preservation, all of these works are eligible for utilization under Section 108. However, for purposes of making copies of works to deliver directly to researchers for their private study, or to convey to another library through an ILL arrangement, the librarian must return to the list of permitted and nonpermitted works to determine which may and may not be utilized under Section 108.
Under some provisions of Section 108, a library may copy an entire work, but under other provisions the library may copy only a portion of a work or a short work such as a journal article. Again, the preservation law is more generous. Once the library meets the conditions of the statute, it is permitted to make copies of the entire work, regardless of its length. If the copies are for private study, the law bifurcates its treatment: when the library copies an entire work, or a substantial part of one, the library must meet more demanding conditions than when it copies a short work or an excerpt.
Return to the scenarios set for the early in this paper. They pose situations in which libraries seek to make copies of materials for research, study, or preservation. Are these activities within the framework and limits of Section 108? To reach a conclusion, one needs to work systematically through the series of questions outlined in this paper before embarking on the application of the prescribed, detailed conditions for the permitted activity.
Consider the first scenario regarding the vinyl recording of the musical composition. Assume that the work is fully protected under copyright law. To apply Section 108, the library must first comply with the ground rules. The library must be open to outside users; the copy must not be for commercial purposes; the copy that the library makes must include an appropriate copyright notice; and the library must be engaged in only the making of isolated, individual copies of the work in question. Next, under the facts of the scenario, the library is making the copy for preservation purposes, which is a permitted activity. Because the purpose is for preservation, the library will not face limits on either the type of material that may be reproduced, or the quantity. The library can then move to the detailed conditions that apply only to preservation activities.
The law sets differing requirements for published and unpublished works. In the scenario, the vinyl recording is a published work from 1975. Section 108(c) permits a preservation copy of a published work, if:10
(1) The copy is solely for replacement11 of a copy that is damaged, deteriorating, lost, or stolen, or if the format of the work has become obsolete [§108(c)] (e.g., a player for your collection of eight-track tapes is no longer manufactured or available for purchase [§108(c)(2)]);12 and
(2) The library conducts reasonable investigation to conclude that an unused replacement cannot be obtained at a fair price. [§108(c)(1)]
Consider again the vinyl LP. The library will need to evaluate the work to determine that in fact it is "deteriorating" and then conduct an investigation of the market to affirm that an unused replacement is not available. The language of these provisions leaves much for the library staff to evaluate without further guidance from the law. Neither the statute nor any judicial decision defines the meaning of "deteriorating," so the library must reach its own conclusion about the condition of the work and the defensibility of that conclusion. The wear and distortion on the LP may well be grounds for deeming the work "deteriorated," and the library should document the condition of the original and maintain records to justify the conclusion, should its actions ever by questioned.
Similarly, the statute makes clear that the library need only search for an "unused" replacement and thus need not search the secondary markets, but the law does not clarify the meaning of a "fair price." The library staff will need to make a judgment in light of customary prices for similar works. Moreover, the notion of a "replacement" can be complicated. Researchers may want only an analog recording, while a digital version on CD-ROM might be readily available for purchase. Whether the CD is in fact an available "replacement" for the LP probably depends on specific needs of the library and its users and whether the CD can be satisfactory, or if a copy of the analog version is necessary. In all of these instances, the statute ultimately calls on the library to evaluate circumstances reasonably and to justify the decisions.
Section 108(b) outlines slightly different conditions for making preservation copies of unpublished materials, such as manuscripts. Because these materials are often unique, face immediate hazards of loss, and are not able to be replaced on the open market, the conditions for making preservation copies are considerably less rigorous:
(1) The copy is solely for preservation or security or for deposit at another library [§108(b)]; and
(2) The work is currently in the collection of the library making the copy. [§108(b)(1)]
Thus, if the library has in its collection an unpublished tape recording of a live performance of a musical work, the library may make a copy, as long as the copy is solely for preservation or security, and the copy is for deposit at the same library or at another library. While these conditions may be relatively easy to meet, they also establish potential limits on deployment of the DML. For example, the DML may well be able to include-lawfully-a stored version of the unpublished recording, but only solely for preservation or security. A copy made in accordance with this provision may therefore not be widely accessible to unlimited researchers from unlimited locations. The ensuing discussion of the specific provisions for the use of digital technologies will further affirm this constraint.
While Section 108 may impose some limits and preconditions on library services, the DML should be able to comply with those conditions in many instances in order to facilitate a robust preservation program. Moreover, unlike the other activities sanctioned under Section 108, preservation efforts under the law are not limited by either the type of copyrighted material in question, or the quantity.
PRESERVATION IN DIGITAL FORMAT
The choice of formats and media for preservation was problematic in 1976 when Congress first enacted Section 108, and digital technologies have made the issue even more complex. Copyright owners have asserted concerns about the potential hazards of digital storage and dissemination of works, but the statute in its original form was clearly neutral on the matter of technologies and formats.13 Congress addressed this issue as part of the Digital Millennium Copyright Act. Digital preservation copies of both published and unpublished works are now explicitly permitted under the conditions already described in this paper. In addition, however, "any such copy or phonorecord that is reproduced in digital format" may not be "made available to the public in that format outside the premises of the library or archives." To oversimplify, machine-readable formats must be confined to the building. [§108(b)(2)] [§108(c)(2)]
One can infer from this language that Congress's concept of a "library" is a defined physical space. Congress apparently has not been prepared to address the subtleties of a "virtual library." More pragmatically, in the private give-and-take that led to the final draft of the statute, influential parties who would like to limit potential abuses of copyrighted materials were probably successful in confining the works to the building in order to prevent interference with potential markets.14 The practical reality is that Section 108 is a clear permission to use digital technologies for preservation, but with some limits. While one can infer from Section 108 enormous potential for the DML to engage in a digital preservation program, the law also challenges the ability of a digital library to make the preserved works widely available. To use these provisions of Section 108, the library must define its "premises" and permit access to the files only from inside those boundaries. Once again, however, the statute is signaling that while preservation copying is readily permitted, the copies must be retained and utilized only for limited purposes.
COPIES FOR PRIVATE STUDY
Return to Scenario 2 above, involving the collection of materials by and about Igor Stravinsky. In this situation, the library is pressing the boundaries of Section 108 and may well find that some of the activities are permitted, while others are not. Apply the sequence of five questions outlined in this paper:
Ground Rules. Again, the library should be able to comply with most of the ground rules about notice, open access, and noncommercial purpose with relative ease. The storage of the material on the server with unlimited access-even if confined to the building-may not meet the requirement that the library engage in only "isolated" or "single" copies. On the other hand, the developers of the DML may be deemed to be making only the single copy that is installed on the server, and is at most making only isolated electronic copies of each work as the researcher requires for the researcher's own needs. In the case of sound recordings, the library may not be making any additional copies at all if the content is "streamed" to the user and is not actually the delivery of a digital file.15
Permitted Activities. Similarly, providing broad access to the content may also be a service of making and delivering copies of works to researchers pursuant to their individual requests, as the statute explicitly embraces. These provisions of the code were enacted in 1976, and they clearly anticipate the relatively simple service of photocopying portions of books or journals for a patron's research convenience. Yet the statutory language is general and is not limited to any particular technologies. Whether works that are resident on and generally available through a digital library server may qualify as copies for individual research use remains open to serious question without resolution. The answer may well lie in a combination of facts surrounding the overall operation of the digital library: What are the limits on accessibility? What are the needs of the user? What are the patterns of access and retrieval?
Permitted Works. Even if the DML is able to satisfy these fundamental requirements, details related to the types and quantities of allowed materials, as well as specific conditions for this particular service, may pose formidable barriers to the benefits of Section 108. Most significantly, these subsections of the statute permit the library to make and distribute copies of only certain types of works, generally limited to textual works and sound recordings. Not permitted are graphic images and musical compositions.16
Therefore, if these provisions apply at all to the DML and the collection of Stravinsky works, they apply only, for example, to materials such as these: books and articles and the accompanying graphics; collections of correspondence, journals, and related items; audiovisual "news" features; and sound recordings of spoken words and or other "literary" works. But these provisions of Section 108 do not extend to: musical scores and compositions; sound recordings of musical works; pictures, maps, and other pictorial or graphic works that are not adjuncts to the books and other materials that may otherwise be copied; and any audiovisual works that are not "news."
Permitted Quantity. Section 108 sets forth slightly different requirements if the library is making copies of journal articles and short excerpts from a larger work, or if the library is copying longer works either in their entirety or a substantial portion of them.
The language of the statue is especially meticulous at this point, and the convoluted wording can be of particular importance to the DML and the use of sound recordings. Recall that Section 108 permits the library to make research copies of textual materials and to some sound recordings. The law does not, however, apply equally.
The statute sets forth one allowed use for the making of "copies" and one for the making of "phonorecords." Under the definitions in the Copyright Act, a "copy" is a "material object" in which "a work is fixed," but a "copy" specifically and explicitly does not include a "phonorecord." A "phonorecord" is a material object in which "sounds," which would include recorded music as well as spoken words, are fixed.17 Thus, a "copy" is generally of a work of text, while a "phonorecord" is a sound recording and is often of a musical performance.
Section 108 then permits the library to make a "copy" (i.e., a reproduction of usually a textual work) of an "article or other contribution to a copyrighted collection or periodical issue." [§108(d)] Thus, an article or other short textual work may be copied. The statute further permits the library to make a phonorecord (i.e., perhaps a copy of a recording of spoken word or a recording of a musical composition, if the composition is in the public domain) of only a "small part of any other copyrighted work." [§108(d)] In other words, the concept of copying a phonorecord is limited to just a portion of the copyrighted work, and apparently does not apply to making a copy of one recorded selection from a "copyrighted collection" such as one song from a CD of twelve or more songs.
If this construct of the language holds true, the library is constantly limited to making copies of only portions of any recorded work, even if the library has complied in full with all other requirements. This outcome would have profoundly negative consequences for the DML, which would then be limited to delivering only clips and pieces of sound recordings for the benefit of researchers.
Detailed Conditions. Section 108(d) permits the library to copy an article or other portion of a larger work, if:
(1) The copy becomes the property of the user. [§108(d)(1)] [§108(e)(1)]
Summary: This requirement goes to the core of whether this portion of Section 108 can apply to the DML at all. If the DML is storing digital copies of works for user access, is the DML engaged in the making of single copies to deliver to users for their private study?
(2) The library has no notice that the copy is for any purpose other than private study, scholarship, or research. [§108(d)(1)] [§108(e)(1)]
Summary: This provision does not require that the work be for private study, nor does it require that the library investigate the user's purpose. Rather, it only requires that the library have no knowledge that the purpose is other than private study. If the library has no information about the use, the library has met this requirement. This negative requirement is consistent with the general expectation that librarians not inquire about a patron's purpose or need for requested information. If the patron volunteers, however, that his or her need is not consistent with this requirement, then the library may not be able to provide this service.
(3) The library displays a warning notice where orders for copies are accepted and on order forms. [§108(d)(2)] [§108(e)(2)]
Summary: The language of notices on order forms are generally prescribed by regulation from the U.S. Copyright Office.18 In the case of a digital library, the place where "orders for copies are accepted" may well be any computer that has permitted access to the content of the DML. If the terminals themselves are within the library's control, the notice may be posted at each work station. Perhaps more pragmatically for the DML and any other digital library, the notice may be posted prominently on a screen display in connection with any access and retrieval of content.
If the library is planning to copy an entire work or a substantial part of it, Section 108(e) adds one more condition to the list: The library must conduct a reasonable investigation to conclude that a copy cannot be obtained at a fair price. [§108(e)] This language is similar to a condition raised earlier with respect to copies of published works for preservation purposes, but here it is actually more demanding. The preservation requirement calls on the library to search the market for an "unused replacement." [§108(c)(1)] When the library is making the copy for private study, however, the library must search the market for any copy, even a used copy.
In any situation, this requirement puts the library in the difficult position of investigating the market and likely directing the user to alternative sources for the material at a time when the user is looking for an immediate copy to meet a project deadline. In the case of the DML, the library seeking to comply with Section 108 may face the awkwardness of having materials stored on the server, but facilitating access only after conducting repeated or periodic searches of the market before permitting the user to access the content. Since its enactment in 1976, this requirement has created awkward situations: the library may have the requested materials and be able to make and deliver a copy, but the library must instead notify the researcher that the request is denied, because a used copy is available for purchase in the catalog of a book dealer.
COPIES FOR INTERLIBRARY LOANS
When a library makes copies of materials to send though "interlibrary loan," it is engaged in simply a variation on the service of making copies for the benefit of a researcher. Accordingly, whether the request comes from the researcher at the library, or at another library submitting the request, the library that is responsible for making the copy is first obliged to adhere to the general requirements above regarding the making of copies for a user's private study.19 The library fulfilling the request must apply and meet all the standards reviewed above regarding notices, quantity, and detailed requirements.
Next, the library receiving the copies must adhere to this standard: the interlibrary arrangements cannot have, as their purpose or effect, that the library receiving the copies on behalf of requesting patrons "does so in such aggregate quantities as to substitute for a subscription to or purchase of such work."20 [§108(g)(2)] In an effort to clarify that limit on the receiving library, the National Commission on New Technological Uses of Copyrighted Works (CONTU) in 1979 issued guidelines that suggest a library may receive up to five copies of articles from the most recent five years of a journal title during one calendar year. After that quota, the general expectation is that the receiving library will pay a copyright fee or purchase its own subscription to the journal. These guidelines, however, are not the law, although they are generally followed at numerous libraries around the country.
Many libraries in the U.S. have found creative ways to use digital technologies for ILL services, while at the same time complying with the requirements and limitations of the law. One common method has been to deliver a digital version of the requested work, with password restrictions or other constraints on access, that the receiving library can in turn download, print, or otherwise further transmit to the individual researcher who requested the materials. A project such as the DML could, for example, permit a remote library to have access to copies of files only after completing a request form that in many respects imitates the information and requirements that libraries long have required libraries to provide when requesting paper copies of materials. The law here is not limited to certain technologies; a digital library should be able to devise creative systems for extending ILL to the digital environment.
Section 108 is typical of the statutory exceptions to the rights of the copyright owners. It offers benefits only to a designated class of persons (libraries and librarians), it applies only to certain uses of the works (preservation and private study), it applies only to certain works (often limited to textual works and sound recordings), and it is subject to detailed conditions and requirements (the list is lengthy). Like the other exceptions, this statute is the product of vigorous debate and negotiation among diverse interest groups. Congress clearly acted to support the work of libraries, but it also did not want to impair the economic interests of copyright owners. Hence, the law becomes filled with restraints and limits and becomes narrow in its application.
Yet Section 108 remains valuable and important, and it may well exhibit sufficient flexibility to be able to evolve from the print media that Congress considered most closely in 1976 to the digital media of the DML. The most likely benefits of Section 108 to the success of digital libraries-as well as the most significant barriers to the usefulness of Section 108-can be summarized as follows:
Preservation Copies: A digital library should be able to work within the parameters of the law to build a viable preservation program that is based on the digital reproduction and storage of unpublished materials in the collection as well as published works that are at risk. The most pointed limitation in the law is the requirement that any copies made in a digital format must generally not be "made available to the public in that format outside the premises of the library. . . ." The DML may well be able to use Section 108 for preservation programs, but the system will need to limit the boundaries of the accessibility of the content.
Research Copies: Section 108 grants to libraries the right to make copies for private study by the library users, but the statutory provisions are narrow in their application and constraining in their scope. For the DML in particular, the law will pose challenges simply because it does not apply to musical works, which constitute the most significant content expected to be stored in the system. For any digital library, Section 108 is problematic for several reasons. The most important is that the law applies only to the making and delivery of single copies of individual works at the request of an individual user. This situation is far from the long-term storage and general accessibility of content that a digital library generally provides.
Like many of the other exceptions in the Copyright Act, Section 108 is both good news and bad news from a variety of perspectives. When a library service fits within its parameters, the law is an enormous benefit. When it does not fit, the law is a source of frustration and disappointment. In that event, the library continues to have many of the same alternatives that it faces in other circumstances. The library can seek permission for the desired use. The library can deploy the service only with respect to materials that are in the public domain and no longer subject to the restrictions of copyright. The library can also turn to yet another exception-the law of fair use-to determine its scope and applicability to the situation at hand. Fair use will be the subject of the next stage of copyright research in furtherance of the DML project.