in any format, including digital, but digital copies may be used only within the library premises.
Before a library may make a copy under section 108(c) it must have made a reasonable effort to acquire an unused replacement copy, and must not have been able to find such a copy at a fair price. The legislative history notes that a reasonable effort varies according to the circumstances, but that a library should contact commonly-known trade sources such as dealers and jobbers, and generally the publisher or other copyright owner.[1] You do not need to contact used book dealers; you must only determine that you cannot get an unused copy at a fair price.
What is a fair price? In 1983, the Register of Copyrights wrote that a fair price for a book or periodical is that which is charged by a publisher, a dealer specializing in remainders, or a jobber or dealer in bulk issues of periodicals, but not if the only unused copies are available at high prices from rare or antique dealers.[2] The Register’s statement makes more sense for books than for journals when you consider the following scenarios.
Example 1. The Case of the Missing Issue
You are ready to bind the six issues from a scholarly journal, and discover that the July/August issue is missing. The subscription price was $40 for six issues, or about $7.00 per issue.
- Comment. If the publisher or jobber charges $10 to $15 to replace the July/August issue, the price seems fair. If it costs $20 or more to replace one issue, you might conclude that it is not. (Of course if you consider what it costs two libraries to request, reproduce, receive, and do the bookkeeping for an ILL request, it makes sense to just buy the issue.)
Example 2. The Case of the Missing Article
Someone cut out one article from the same journal. Each of the six issues has eight to ten articles. In other words, you “lost” about 2% of the volume.
- Comment: If it will cost $15 to $20 to replace the issue in which the article appeared, or $10 just for a reprint of the article, you may conclude that the price is not fair and ask another library to copy the article for you under section 108(c).
