This pathfinder was originally prepared in Fall 2011 to aid the lawyers, librarians, and others who were researching legal issues for the Digital Public Library of America (DPLA). Since this audience included some who are new to the legal field, including law students and non-lawyers, this pathfinder aims for accessibility. At the same time, I hope it will be useful to those who are familiar with the Copyright Act more generally but are looking into its library-related provisions for the first time. As of February 2016, it is under revision.
One of the questions that the DPLA legal workstream sought to address was, “Within the bounds of existing law, what can libraries do to digitize their collections and make at least some parts of in-copyright works publicly accessible?” This pathfinder covers one section of the U.S. Code that bears on this question: 17 U.S.C. § 108. Section 108 places certain limitations on copyright holders’ exclusive rights to reproduce and distribute a work under section 106. These limitations are available only to libraries and archives.
There are a number of other exceptions to copyright that are relevant to digitization by libraries. Chief among them is fair use, codified at section 107. This pathfinder will not delve into fair use and the other limitations and exceptions to section 106, but here are a few resources that would make a useful starting point for such an inquiry:
- The FAQ section largely addresses the process for registering a copyright, which is a large part of the Copyright Office’s purpose. However, it also has sections on copyright in general, what is copyrightable, and definitions of common copyright-related terms.
- The leading copyright treatises, Nimmer on Copyright (LawCat record, Lexis full text) and Patry on Copyrights (LawCat record, Westlaw full text), which are discussed below, are very useful as general introductions and as introductions to specific topics. William Patry has also written a separate treatise on fair use, Patry on Fair Use (Westlaw full text), which contains material from the general treatise as well as some additional material.
A note about links
Where possible, this pathfinder will link to more information about a term, a copy of the article it mentions, etc. If the link is unlabeled, it links to a free website. The rest of the links are labeled, and some of them lead to for-fee services like Lexis and Westlaw.
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Originally written in December 2011. Revisions in progress as of February 2016.