paper, replaces cartridges, and fixes paper jams, the copying is not supervised. Copying is supervised when library staff (or the library’s agents if the library outsources copying services) make the copies, or when the equipment is under such close supervision that the library can control what patrons actually copy. The most obvious examples are copy centers in university or corporate libraries that make copies for students and employees. If the copying 1s infringing, then the library can be liable.
Do the same rules apply in both for- and non-profit organizations? The legislative history to the Copyright Act says that “a library in a profit-making organization could not evade these obligations by installing reproducing equipment on its premises for unsupervised use by the organization’s staff.”[1] In other words, if an employee in a for-profit organization infringes copyright, both the employee and the institution can be held liable because businesses and corporations are assumed to have control over the actions of their employees.
The person who makes unauthorized copies on an unsupervised walk-up machine could be liable for infringement, of course. Section 108(f)(2) provides that a person who uses unsupervised equipment to make copies that exceed fair use is not excused from liability for infringement. Furthermore, a person who requests that the library make a copy for him or her under 108(d) is not excused from liability for infringement if the copying exceeds fair use.[2]
Contracts, Licenses, and Fair Use (Section 108(f)(4))
Tiny subsection (f)(4) of section 108 has a lot of oomph, just like Maria Callas or Leontyne Price performing a Night at the Opera. Here is what it says:
Nothing in this section [108] in any way affects the right of fair use as provided by section 107, or any contractual obligations assumed at any time by the library or archives when it obtained a copy or phonorecord of a work in its collections.
