Page:The librarian's copyright companion, by James S. Heller, Paul Hellyer, Benjamin J. Keele, 2012.djvu/95

Chapter Five. The Library Exemption (Section 108) to 3 copies or phonorecords for these purposes, rather than just one, and permits such copies or phonorecords to be made in digital as well as analog formats. It seems pretty clear that a library that owns a copy of an unpublished work may make an analog or a digital copy “for deposit for research use in another library.”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 A library that has made or received a digital copy of an unpublished work under 108(b) apparently may not make it available in that format to the public outside the premises.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.

If a library receives a copy of an unpublished work under 108(b), may a researcher copy the work?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 There probably is less room to copy an entire unpublished work than there is to copy a published work, but section 107 itself says that “the fact that a work is unpublished shall not itself bar a finding of fair use if such a finding is made upon consideration of all the