Secondary materials

There are a number of useful secondary materials concerning section 108. This section will lay out strategies for searching databases for secondary materials and then give a review of some that are particularly useful.

Searching in library catalogs that use Library of Congress classification

Users, especially those who are used to electronic databases, often forget that a physical library is a sort of database. Because most libraries are discerning in their collecting, the fact that a strong library has or has not collected an item can help researchers to separate the proverbial wheat and chaff. For this reason, it can be helpful to consider a library’s intended audience and to search the online catalogs of libraries you do not plan to visit. Of course, once you have determined which item(s) you want, you will need to search for them at nearby libraries or order them via interlibrary loan.

A few sample libraries and catalogs:

Law libraries:

A law library (or its online catalog) is probably the best starting point for physical library research on section 108 and digitization. A law school library will have more academic and pedagogical holdings, while a law library for practitioners will be more practice-focused. Either way, you can expect a law library to have substantial resources on copyright law. Of course, there is much to copyright law that is not section 108 and does not relate to libraries, so there is some danger of overbroad search results.

University of California, Berkeley Law Library

  • This is the library of Boalt Hall, the UC Berkeley School of Law. Its catalog is separate from the catalog of the main university library. The catalog is searchable online, and the library in Berkeley, California is open to the public.
  • Website
  • LawCat (catalog)

Harvard Law School Library

  • This is the library at Harvard Law School. Its catalogs include the holdings of other Harvard libraries, but you can search Law Library books only by using the advanced search (set Location to Law Library). The catalogs are available online. The library in Cambridge, Massachusetts is not open to the public, but “attempts to serve the legitimate needs of scholars and researchers requiring access to the Law Library’s unique collections.”
  • Website
  • HOLLIS (catalog, better for Google-type searching)
  • HOLLIS Classic (catalog, better for searching with subject headings)

Law Library of Congress

  • The holdings of the Law Library of Congress are searchable in the main Library of Congress catalog. You cannot restrict your search to cover only the Law Library books. The catalog is available online, and the library in Washington, D.C. is open to members of the public over age 16.
  • Website
  • Catalog

Library and information school libraries:

Since their intended audience is trained in library and information science rather than law, these libraries are strong in practical guides intended for use by librarians. Most of their copyright-related holdings are likely to be relevant to libraries, if not directly to section 108. Many library schools have folded their collections into their institution’s main library, so there is no way to search their books alone. If you are interested in searching a main library catalog that contains the former holdings of a library and information school library, try those at the University of California or University of Michigan.

Union catalogs:

Union catalogs are less helpful as a browsing tool, because their contents do not reflect a single collecting mission. Additionally, their metadata (the information about an item that is entered by catalogers) may not be from a single institution, so it may follow different patterns and be less useful for subject searching. However, they are very useful for tracking down a copy of a known work located near you, and they give you an idea of a work’s reception across geographic areas.

WorldCat

  • WorldCat is the largest union catalog ever, and since the value of a union catalog is its inclusiveness, it is also the most useful. The catalog is available for free online, but you may get better or more personalized information if you access it through your own institution.
  • Website and catalog

Library of Congress Classification

Most American academic libraries, including all of those mentioned above, catalog their books according to the Library of Congress (LC) classification system. This system divides all knowledge into 21 classes and assigns a letter to each (e.g., K represents the Law class). These classes are subdivided and assigned numerical ranges, eventually yielding unique alphanumeric call numbers for each of a library’s books. These call numbers are not necessarily transferrable between libraries. However, the LC subject headings (e.g. Library legislation — United States) are transferrable. The following subject headings are useful for finding works related to section 108 and library digitization. To search effectively with these terms, use the “subject” search in a library’s catalog.

Suggested subject headings:

Directly related:

  • Academic libraries — Law and legislation — United States
  • Copying processes — Law and legislation
  • Copyright and digital preservation
  • Electronic reserve collections in libraries – Law and legislation
  • Information Services — Law and legislation — United States.
  • Library copyright policies
  • Library legislation — United States
  • Photocopying services in libraries
  • Public libraries — Law and legislation
  • School libraries — Law and legislation

More broadly related:

  • Search for these subjects along with another term (perhaps as a keyword) in order to return relevant results.
  • Archival materials — digitization
  • Copyright
  • Digital libraries
  • Digital preservation
  • Libraries–History
  • Libraries and electronic publishing.
  • Libraries and state–United States
  • Library materials–conservation and restoration
  • Library materials–digitization
  • Library rules and regulations

Searching in online databases

Online databases allow you to search for articles from scholarly journals (including law reviews), popular magazines and newspapers, and sometimes books.

Suggested search terms:

  • Use these in combination with each other, case names, and the names of experts (especially if you can search for those in the footnotes of an article): “Copyright Act,” “Section 108,” copyright, library, photocopying, reprography (not a word we use much anymore, but it turns up a lot of results on the 1976 Act)

Suggested databases:

Library, Information Science, and Technology Abstracts on EBSCOhost

  • EBSCO does not have full text for all of the articles in this index, but if the abstract is promising you can find full text in another database or in print. An easy way to do this is with a Citation Linker, which some libraries provide.
  • Example citation linkers: UC BerkeleyHarvard

Westlaw

  • Westlaw (but not WestlawNext) allows you to search the Legal Journals Index, Index to Legal Periodicals, and Legal Resource Index all at once. These indices will return some content that is not in Westlaw, so using them is more comprehensive than just search Westlaw’s or Lexis’s journal collections.

Lexis

  • Best used for accessing a copy of a known journal article.

HeinOnline Law Journal Library

  • Best used for accessing a copy of a known journal article.

Working paper repositories:

Working paper repositories are useful for finding articles pre-publication, or accessing free versions of articles even after they are published. Most scholars do not update their working papers to reflect the published version of the article, so be sure to find the official version if you want to cite it.

Periodicals to watch:

Useful secondary materials:

Books:

Because so much legal scholarship is published in law reviews, the books on Section 108 have a more practical slant. It is also important to check the date of publication to see if the book includes more recent amendments. If you are looking for material on legislative history, there are many books from the 1960s and early 1970s that consider an anticipated copyright reform.

Growing Pains: Adapting Copyright for Libraries, Education, and Society (ed. Laura N. Gasaway, 1997) (LawCat record) (HeinOnline).

  • This collection of scholarly essays includes several that mention Section 108, and it has a table of statutes so the user can find the pages citing it. Although none of the articles is devoted specifically to the provision, a third of the book concerns libraries and copyright.

Peter B. Hirtle, Emily Hudson, & Andrew T. Kenyon, Copyright and Cultural Institutions: Guidelines for Digitization for U.S. Libraries, Archives, and Museums (2009) (LawCat record).

  • This manual is based on a manual by Hudson and Kenyon that covers the same topic in Australian law. Its sixth chapter analyzes Section 108 to give practical guidance to libraries undertaking digitization. The book is organized in question-and-answer format and includes flowcharts explaining how to comply with copyright law. If you are trying to practically apply Section 108 in the context of digitization, this is the book for you.

Mary Minow & Tomas A. Lipinski, The Library’s Legal Answer Book (2003) (LawCat record).

  • This excellent book is formatted as questions and answers and written for librarians. Pages 40 to 53 address issues from Section 108. Like the Hirtle book, this is a very useful book for someone who is actually using Section 108 (rather than researching it).

Carrie Russell, Complete Copyright: An Everyday Guide for Librarians (2004) (LawCat record).

  • This spiral-bound illustrated guide is by far the most graphically pleasing of the books listed here. It is organized around eight different hypothetical scenarios that implicate copyright law in the library setting. This makes it harder to find all of the mentions of 108, because even the index is not organized in that way. However, it is a good place to go if you have a particular scenario in mind (e.g., electronic reserves). The hypothetical narratives are engaging, so it would probably also make a good introduction to the topics.

Special Libraries Association, Library Photocopying and the U.S. Copyright Law of 1976: An Overview for Librarians and Their Counsel (1977) (LawCat record).

  • This book by the Special Libraries Association gives a careful and readable explanation of the provisions of the 1976 Act that pertain to libraries: 106, 107, 108, 117, and 501-505. Since it was published right after the passage of the 1976 Act, it does not address the later amendments (see Legislative History section). It is interesting in that it gives an early view of the provision from the library perspective.

Articles:

Jonathan Band, “The Impact of Substantial Compliance with Copyright Exceptions on Fair Use.”

  • Available as a working paper SSRN.
  • Examines the intersection of fair use (§ 107) and the specific exceptions to copyright law, including section 108.

Kenneth Crews, “Digital Libraries and the Application of Section 108 of the U.S. Copyright Act.”

  • Available free here.
  • Examines section 108 as it applies to digital libraries, especially Indiana University’s Digital Music Library.

Laura N. Gasaway, “America’s Cultural Record: A Thing of the Past?,” 40 Hous. L. Rev. 643 (2003-2004).

  • Available on HeinOnline and free here.
  • Examines preservation under section 108, focusing on the amendments made by the CTEA and the DMCA.

Laura N. Gasaway, “Values Conflict in the Digital Environment: Librarians versus Copyright Holders,” 24 Colum.-VLA J.L. & Arts 115 (2000-2001).

  • Available on HeinOnline and free here.
  • Discusses the conflict between librarians and rightsholders over section 108 and related issues.

Jane Ginsburg, “Copyright Without Walls? Speculations on Literary Property in the Library of the Future,” 42 Representations 53 (1993).

  • Available on JSTOR.
  • Discusses the broader picture of future libraries, including some uses currently governed by Section 108.

Peter B. Hirtle, “Unpublished Materials, New Technologies, and Copyright: Facilitating Scholarly Use,” 49 J. Copyright Soc’y 259 (2001).

  • Available here.
  • Discusses section 108(h) as a model for the distribution by archives of unpublished manuscript material.

Next: Current Practices

Previous: Regulations

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