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University of Texas University of Texas Libraries

Copyright for Librarians

Archiving

Archiving

Section 108 (b) gives libraries the right to archive unpublished materials; subsection (c) addresses archiving published materials. The requirements for the two kinds of materials are different: to make a copy of an unpublished work, a library's purpose must be preservation or security and it must have a copy of the work in its collection; to make a copy of a published work, a library's purpose can only be to replace a copy it has or used to have in its collection, because the copy has been damaged, is deteriorating, lost or stolen, or the format has become obsolete. Such published works also must be out of print.

Print copies

One purpose of the archiving right is to allow libraries to make one-of-a-kind and out of print books, manuscripts and periodicals available to other libraries. 

Audio and video recordings

Many librarians believe that the law permits them to make back-up copies of audio and video recordings. After all, these media are not very easily protected in a lending environment and are are ruined pretty quickly. Thus, it seems only logical that a prudent librarian would make a copy of the recording for lending, retaining the original for the inevitable time when the lending copy fails to come back or comes back ruined. This intuitive belief, however, is not supported by the plain language of Section 108. The right to archive under subsection (c) (for published works) applies only to replacement of a damaged, deteriorating, lost or stolen copy, or when the format of the recording has become obsolete, and then only when a reasonable effort to locate an unused replacement at a fair price or a device that accommodates the format has proven unsuccessful.

Online storage and retrieval

In 1998 the DMCA revised Section 108 to permit libraries to make up to three digital copies for archival purposes, but the library cannot provide access to these archival copies off the library premises. This limitation was the publishers' idea, based on their belief that libraries should not be able to lend a digital copy, or put another way, that the first-sale doctrine does not apply to digital works.

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