By Cen Cheng, Head of InterLibrary Services, Michigan State University Libraries and Naomi Chow, ILL Librarian, University of Hawaii at Manoa.
The Internet Archive is leveraging a portion of the copyright exceptions under the 17 U.S. Code § 108 – Limitations on exclusive rights: Reproduction by libraries and archives, section (h). The exception is being called the “Library Public Domain”, as coined by Professor Elizabeth Townsend Gard, who specializes in copyright law and is the Director of the Copyright Research Lab at Tulane University. The Internet Archive and Townsend Gard are applying the section 108(h) exception to “forgotten and neglected” books published between 1923 – 1941. The “Library Public Domain” is a different path to apply copyright exceptions than the “orphan work argument”.
As background, the ALA Advocacy section provides an easy to understand description of section 108 (h) for the “Right to Reproduce and Distribute Works in the Last 20 Years of Any Term of Copyright”
The library or archives may reproduce, distribute, display, or perform in facsimile or digital form any work in the last 20 years of its copyright term for purposes of preservation, research or scholarship. This change to Section 108 was made to address the concerns of libraries and non-profit educational institutions planning to reproduce and distribute materials that would have fallen into the public domain if the copyright term extension act [of 1998] had not been passed. This means that, although the term of copyright has been extended by 20 years [beyond 1922], libraries may copy or digitize works that are in the last 20 years of their copyright term. In order to take advantage of this exemption, however, libraries should make a reasonable effort to determine that:
- the work is not subject to normal commercial exploitation,
- a copy cannot be obtained at a reasonable price, and
- the copyright holder has not filed notice with the Register of Copyright Regulation that either of the above conditions apply.
Professor Townsend Gard has written a paper on “Creating a Last Twenty (L20) Collection: Implementing Section 108(h) in Libraries, Archives and Museums”, advocating that libraries and archives take advantage of this legal exception to U.S. copyright law. How can we become involved in this advocacy effort? Create educational opportunities through webinars or conference programs that review and discuss the arguments and reasoning for the copyright exception as outlined by Townsend Gard. Create and test checklists for implementing the given copyright exceptions, as mentioned in Jennifer Howard’s Slate.com “Copyright Mavericks” article. Work collaboratively with our colleagues who specialize in digitization, metadata, and copyright to create guidelines and best practices informed by all copyright exceptions.
As libraries and archives are the recipient of this legal exception, we should apply it when applicable opportunities arise in our daily work, to show that the exception is an important one and to provide our patrons continued access to information.
NOTE: On behalf of ALA and RUSA, this post, as well as Townsend Gard’s paper should not be considered as providing legal advice.