Copyright exception for U.S. libraries and archives when works not available at reasonable price

Interesting exception in US copyright law tied to pricing of works, and year of copyright term.

While the United States has put countries on its Special 301 list for imposing reasonable pricing requirements for copyrighted works, it has a similar exception that benefits US libraries and archives, during the last twenty years of the copyright term. The U.S. provision is designed to moderate the impact of the Sony Bono copyright extension of copyright terms, but it also serves as a good example of how one can impose an exception that is triggered by the reasonableness of the price of the work, or which comes into play after the TRIPS and Berne minimum copyright term, but before the longer national term expires.

17 U.S.C. § 108(h) Limitations on exclusive rights: Reproduction by libraries and archives

(h)(1) For purposes of this section, during the last 20 years of any term of copyright of a published work, a library or archives, including a nonprofit educational institution that functions as such, may reproduce, distribute, display, or perform in facsimile or digital form a copy or phonorecord of such work, or portions thereof, for purposes of preservation, scholarship, or research, if such library or archives has first determined, on the basis of a reasonable investigation, that none of the conditions set forth in subparagraphs (A), (B), and (C) of paragraph (2) apply.

(2) No reproduction, distribution, display, or performance is authorized under this subsection if—

(A) the work is subject to normal commercial exploitation;

(B) a copy or phonorecord of the work can be obtained at a reasonable price; or

(C) the copyright owner or its agent provides notice pursuant to regulations promulgated by the Register of Copyrights that either of the conditions set forth in subparagraphs (A) and (B) applies.

(3) The exemption provided in this subsection does not apply to any subsequent uses by users other than such library or archives.