First, this means that libraries, in addition to having nights under the section 108 exemption, also have fair use rights. This interpretation is supported by the legislative history of the Copyright Act.
Nothing in section 108 impairs the applicability of the fair use doctrine to a wide variety of situations involving photocopying or other reproduction by a library of copyrighted material in its collections, where the user requests the reproduction for legitimate scholarly or research purposes.[1]
You should be wary of contrary messages from the publishing industry. Soon after passage of the Copyright Act, the Association of American Publishers and the Authors League of America asserted that libraries could copy materials only under section 108.[2] The then Register of Copyrights also had a restrictive, although somewhat different, interpretation of the relationship between sections 107 and 108. The Register wrote that library photocopying beyond section 108 may be permitted as a fair use, but only if the copying would be a fair use absent section 108, and then, only if the library first accounted for any section 108 copying that already took place.[3]
The AAP/Authors’ League and the Register were wrong. Section 108(f)(4) cannot be clearer: “Nothing in this section in any way affects the right of fair use as provided by section 107.” The legislative history is equally clear. Library copying and distribution may be permitted under section 107 even if it does not come within the section 108 exemption.
But there is another side of subsection (f)(4): Section 108 rights do not affect any contractual obligations assumed by a library when it obtained a copy of a work. In plain English, this means that by signing a license a library may agree to give up specific rights provided for in the Act, such as fair use and the section 108 exemption. Licenses and contracts are addressed in greater detail in Chapter Seven. For now, just remember this: you may contract away your rights. Review carefully all license agreements, and do not sign what you do not understand.
