The exemption is not limited to “public” libraries. Permitting visitors to use the collection, or participating in interlibrary loan arrangements under which a library makes its collection available to others, will meet the “open or available” requirement. This means that libraries whose doors are not wide open, such as corporations and law firms, many governmental and trade association libraries, and private college and university libraries, may qualify for the section 108 exemptions.
No Direct or Indirect Commercial Advantage—As Applied to Libraries in the For-Profit Sector
Again, here’s the language from 108(a):
… the reproduction or distribution must be made without any purpose of direct or indirect commercial advantage.[2]
The Senate and House committees considering the proposed legislation had different interpretations of this requirement. The Senate Judiciary Committee wrote that this clause prohibited libraries in the for-profit sector from providing copies to their employees unless the copying qualified as a fair use or the organization received permission.[3] The House Judiciary Committee had a different opinion. It wrote that “the ‘advantage’ referred to in this clause must attach to the immediate commercial motivation behind the reproduction or distribution itself, rather than to the ultimate profit-making motivation of the enterprise in which the library is located.”[4] Unlike the Senate, the House believed that libraries in the for-profit sector could qualify for the library exemption when making copies for company employees. It wrote
