Copyright Law: Libraries and Photocopy Machines

Can a library be liable for a patron's illegal copying?

Across the United States, local libraries have photocopy machines for librarians and patrons to use. Both librarians and patrons will sometimes copy pages of books for research or personal use. Under U.S. copyright law, there can be "secondary" or "vicarious" liability for a person or entity that facilitates another person's copyright infringement. This raises the question: Can a library be found liable for infringement if a patron uses the photocopy machine illegally?

In most cases, the answer is no. A library or archive will not be liable for copyright infringement for the unsupervised use of photocopying machines provided that there is a notice on the photocopy machine that making copies may be subject to copyright law. This is not true, however, if the library is aware or has reason to believe that multiple copies are being made of a single work.

The Copyright Act's Provision on Libraries

The Copyright Act includes a specific provision on libraries. Specifically, 17 U.S. Code § 108 provides:
"[I]t is not an infringement of copyright for a library or archives, or any of its employees acting within the scope of their employment, to reproduce no more than one copy or phonorecord of a work... or to distribute such copy or phonorecord, under the conditions specified by this section, if... (1) the reproduction or distribution is made without any purpose of direct or indirect commercial advantage; (2) the collections of the library or archives are (i) open to the public, or (ii) available not only to researchers affiliated with the library or archives or with the institution of which it is a part, but also to other persons doing research in a specialized field; and (3) the reproduction or distribution of the work includes a notice of copyright that appears on the copy or phonorecord that is reproduced under the provisions of this section, or includes a legend stating that the work may be protected by copyright if no such notice can be found on the copy or phonorecord that is reproduced under the provisions of this section."
In other words, publicly accessible libraries are specifically permitted to make copies for non-commercial purposes under certain circumstances.

Warning Required on Library Photocopy Machines

In order to comply with the Copyright Act, the following warning should be placed prominently on all photocopy machines and wherever orders for copying are accepted.

If the warning is on or near a photocopy machine it should be printed on heavy paper or other durable material in at least 18 points type size. If the warning is on a photocopy order form, it should also be located prominently and printed in the same type size throughout the form.

NOTICE: WARNING CONCERNING COPYRIGHT RESTRICTIONS

The copyright law of the United States (Title 17, United States Code) governs the making of photocopies or other reproductions of copyrighted material. Under certain conditions specified in the law, libraries and archives are authorized to furnish a photocopy or other reproduction. One of these specified conditions is that the photocopy or reproduction is not to be "used for any purpose other than private study, scholarship, or research." If a user makes a request for, or later uses, a photocopy or reproduction for purposes in excess of "fair use," that user may be liable for copyright infringement. This institution reserves the right to refuse to accept a copying order if, in its judgment, fulfillment of the order would involve violation of copyright law.

Can a Library Make Photocopies of Works?

Again, the answer is yes. Section 108 of the Copyright Act of 1976 provides that nonprofit libraries or archives open to the public may prepare single copyrighted copies or phonorecords of works. These copies and phonorecords must bear the copyright notice.

Libraries may make copies for the preservation or replacement of a work in the collection when it is not possible to purchase a replacement at fair price; or, upon request from another library, one article from a periodical or a small part of any other copyrighted work may be copied and distributed to that library.

The rights of reproduction and distribution under section 108 do not apply to a musical work, a pictorial, graphic or sculptural work, or a motion picture or other audiovisual work.

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