Subsection (g)(2) addresses copying for library users, and also copying between libraries. It expressly permits library-to-library copying, but there are limits. The big question: When is library copying systematic? A long, long time ago, the Register of Copyrights wrote that
[t]he fundamental concern with respect to (g)(2) has been and continues to be the lack of statutory precision or common consensus about what copying is (and is not) ‘systematic.’ The meaning of that term has been vigorously debated since before the enactment of the statute, but not even the rudiments of agreement have emerged.[2]
The Register did offer this helpful advice: “the extent to which library photocopying services are large-scale operations, with full time photocopying staff, advertisements soliciting patronage, and consistently substantial output, bear directly on the extent to which such services are ‘systematic.’”[3] The typical library (if one exists) photocopies or scans documents—mostly journal articles—for other libraries, and occasionally for the commercial sector. Other libraries offer extensive document delivery services that may operate as a separate division within their institution (typically a university library), with their own budget and staff. The latter arrangement is closer to what the Register of Copyrights warned about and may not fall under the section 108 exemption or qualify as a fair use. Libraries that do engage in “systematic” copying or distribution need to get permission or pay royalties.
The Senate Judiciary Committee offered specific examples of what it considered systematic copying.[4] Do not take these as gospel; the Senate Committee was more conservative than the House Committee with regard to library copying. That said, here are the Senate Committee’s examples, and our comments.
