It seems pretty clear that a library that owns a copy of an unpublished work may make an analog or a digital copy “for deposit for research use in another library.”
The language mandating that digital copies may be used only within the library premises seems less ambiguous. A library that has made or received a digital copy of an unpublished work under 108(b) apparently may not make it available in that format to the public outside the premises. A library patron may use a digital copy onsite, but the library should not send a digital copy to an individual, nor permit access to a digital version outside the walls of the library.[2]
If a library receives a copy of an unpublished work under 108(b), may a researcher copy the work? The answer depends on the results of a section 107 analysis. Whether a use is a “fair use” depends on the facts, so the answer is a definite “maybe.” There probably is less room to copy an entire unpublished work than there is to copy a published work,[3] but section 107 itself says that “the fact that a work is unpublished shall not itself bar a finding of fair use if such a finding is made upon consideration of all the
- ↑ Id.
- ↑ The Section 108 Study Group recommended that libraries should be permitted to make digital copies available outside the library if the original unpublished work was also digital. Section 108 Study Group Report 61, available at http://www.section108.gov/docs/Sec108StudyGroupReport.pdf.
- ↑ In 1983, David Ladd, Register of Copyrights, citing the Senate Judiciary Committee’s report (S. Rep. No. 94-473, at 106), wrote that “there is no fair use copying [of unpublished works] permitted beyond that authorized by 108(b).” U.S. Copyright Office, Report of the Register of Copyrights: Library Reproduction of Copyrighted Works (17 U.S.C. § 108) 106 (1983) [hereinafter Register’s Report]. However, one of the premier treatises on copyright law includes this passage: “The scope of the fair use doctrine is considerably narrower with respect to unpublished works that are held confidential by their copyright owners. Note that ‘confidential’ differs subtly from ‘unpublished.’ If the author does not seek confidentiality, fair use is not necessarily precluded even as to an unpublished work.” Melville B. Nimmer & David Nimmer, Nimmer on Copyright § 13.05[A][2][b] (2011). Nimmer continues “The amendment thus reaffirms the holding in the Nation case—in particular, that the unpublished nature of a work … is a ‘key, though not necessarily determining factor tending to negate a determination of fair use’ …” Id.
