U.S. libraries, archives, and other memory institutions are stewards of some of the largest collections of copyrighted content in the world. These institutions hold billions of works, the vast majority of which have been created in the last century and thus subject to copyright protection. This article is about how these institutions interact with the copyright system and, in particular, how reforming § 108 of the Act — limitations on copyright for library and archive uses — can help these organizations in their efforts to preserve and make their collections more available to the world.This article examines the situations in which § 108 works, where it fails, and where libraries rely on other tools such as fair use for preserving, archiving and distributing works. Understanding § 108 in that context helps in clarifying its intended purpose and, in turn, principles for reform. Over the last several decades it has become clear that policymakers and librarians view § 108’s principal purpose as providing a useful, clear, and unambiguous exception that practicing librarians can employ to make decisions about the use of copyrighted works in frequently recurrent library situations, supplementary to decisions made under other limitations such as fair use. So far, § 108 has largely failed to fulfill that purpose. This article identifies five long-term principles that help explain why § 108 has failed in certain respects, and can help guide reform efforts to make § 108 more useful in the future.
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