Page:The librarian's copyright companion, by James S. Heller, Paul Hellyer, Benjamin J. Keele, 2012.djvu/88

use in their work. Similarly, for-profit libraries could participate in interlibrary arrangements for exchange of photocopies, as long as the production or distribution was not “systematic.” These activities, by themselves, would ordinarily not be considered “for direct or indirect commercial advantages,” since 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 behind the enterprise in which the library is located. On the other hand, section 108 would not excuse reproduction or distribution if there were a commercial motive behind the actual making or distributing of the copies, if multiple copies were made or distributed, or if the photocopying activities were “systematic” in the sense that their aim was to substitute for subscriptions or purchases.^[1]

The House Judiciary Committee’s interpretation was supported by the Conference Committee, which was composed of members of both the House and the Senate. The Conference Committee concluded

Another point of interpretation involves the meaning of “indirect commercial advantage,” as used in section 108(a)(1), in the case of libraries or archival collection within industrial, profit-making, or proprietary institutions. As long as the library or archives meets the criteria in section 108(a) and the other requirements of the section, including the prohibitions against multiple and systematic copying in subsection (g), the conferees consider that isolated, spontaneous making of single photocopies by a library or archives in a for-profit organization without any commercial motivation, or participation by such a library or archives in interlibrary arrangements, would come within the scope of section 108.^[2]

The Bottom Line: Libraries affiliated with for-profit organizations may qualify for the library exemption. But all libraries—those in for- and non-profit institutions—must avoid the section 108(g) prohibitions against multiple and systematic copying, discussed below.

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1. Id. at 75.
2. H.R. Rep. No. 94-1733 (Conf.), at 73–74 (1976), reprinted in 1976 U.S.C.C.A.N. at 5810. If you’re tempted to use the Texaco case for further guidance on section 108, remember that Texaco was decided under fair use and not under section 108.