Library Preservation Copy (DMCA Section 108)

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What Is a Library Preservation Copy?

A Library Preservation Copy is a legal copy that libraries or archives are allowed to make without needing permission from the copyright owner. Under Section 108 of U.S. copyright law, these copies can be created to preserve important books, recordings, or other materials that are at risk of being lost, damaged, or becoming unusable over time.

This exception helps protect cultural and educational resources from decay or outdated technology, ensuring future generations can still access them. It’s a way to support public access to knowledge while still respecting copyright rules.

Permitted Uses

Section 108 of the U.S. Copyright Act allows certain copying by libraries and archives, but only under specific conditions. These exceptions are designed to support preservation and access without undermining copyright protections.

Approved Uses for a Library Preservation Copy

Libraries and archives may create up to three copies of a copyrighted work for preservation purposes. This allows them to make backups of materials that are fragile, deteriorating, or at risk of being permanently lost due to age or decay.

They may also create a replacement copy if the original has been lost, stolen, or damaged and a new version cannot be purchased at a reasonable price. This ensures that rare or out-of-print works remain available in public collections.

In some cases, libraries can provide access copies for research or study. These must be made available in a controlled way, such as on-site access or secure systems that prevent widespread distribution.

Who Qualifies to Make a Library Preservation Copy?

To qualify for these exceptions, the library or archive must be a nonprofit institution. It must be open to the public or to a defined group of researchers, such as students or scholars affiliated with a university.

Each reproduced copy must include a clear notice stating that the copy was made under Section 108. This transparency helps maintain trust and ensures compliance with the law.

Legal Conditions for Creating a Library Preservation Copy

The institution must own a physical copy of the original work – it cannot rely on a digital license alone. The work must also be unavailable commercially at a fair price, meaning reproduction is only a last resort.

Digital copies must be stored securely and used only within the library’s premises or under strict access controls. All copies must include a visible copyright notice explaining the legal basis for reproduction under Section 108.

Exclusions: What Section 108 Doesn’t Permit

Although helpful, Section 108 has several limitations. It does not grant blanket rights for digital or large-scale reproduction.

The law prioritizes scholarly, archival, or research functions over general consumer distribution.

Real-World Examples

Libraries and cultural institutions often use Section 108 to preserve history and research materials that are no longer available or at risk of loss. These efforts help ensure continued public access to important works that might otherwise disappear due to physical deterioration or limited distribution.

Section 108 allows libraries to digitize certain post-1928 books if all legal conditions are met, helping preserve titles that are still under copyright but no longer available for purchase. While public domain works are freely usable, these newer texts require strict adherence to Section 108’s rules.

Film preservation efforts by institutions like the Library of Congress have used Section 108 to restore thousands of deteriorating reels. Without this exception, many culturally significant films would be lost to time.

Stanford’s Silicon Valley Archives has applied Section 108 by using emulators to preserve vintage software and video games. These materials are made accessible for research while respecting copyright law.

These projects highlight how Section 108 helps safeguard cultural memory.

Controversies and Challenges

Despite its benefits, Section 108 has sparked debate, especially as digital technologies evolve.

Key Challenges:

Controlled Digital Lending (CDL): Some libraries have explored digitally “lending” scanned books one at a time, under the first sale doctrine. Publishers argue this goes beyond what Section 108 allows.

DRM & Technological Locks: Many digital works (e.g., DVDs, eBooks) include encryption or DRM, which prevents copying – even for legal preservation. Circumventing DRM is restricted under DMCA Section 1201.

Global Inconsistencies: Similar provisions exist in the EU and Canada, but are often narrower and subject to national discretion.

The tension between copyright enforcement and public access continues to shape the application of Section 108.

How Libraries Ensure Compliance When Creating Preservation Copies

To avoid liability while preserving content, libraries must follow strict procedures that align with Section 108 of the U.S. Copyright Act. These measures help ensure that reproduction activities remain lawful and defensible.

Before creating a replacement copy, a library must verify that the same item is not available for purchase at a fair price. This step confirms that reproduction is necessary and not being used to bypass legitimate sales.

If a digital version is created, it must remain under controlled access. Typically, this means in-library use only or secure lending through systems that prevent duplication or broad distribution.

Libraries are also expected to document each step in the process. This includes retaining records that show proof of ownership, results from fair price checks, and the reasoning behind the reproduction decision.

By maintaining clear documentation and limiting access appropriately, libraries show good faith and remain compliant with copyright law while fulfilling their preservation mission.

Reform Proposals and Legislative Outlook

As media formats and user needs change, legal experts and library advocates have called for updates to Section 108. Key Proposals Include:

• Expand Scope: Allow more types of content, including eBooks, multimedia, and interactive software.
• Modernize Duration: Remove outdated time constraints (e.g., limits on replacement copies per format).
• Permit Digital Lending: Legally define rules for controlled digital lending and cross-institutional access.

Congress has occasionally reviewed Section 108 reforms, though no major overhauls have passed as of 2024.

Summary Table: Section 108 at a Glance

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