Once a library or archives has determined that it is qualified to use Section 108, it may make copies of materials for purposes of preserving items in the collection or replacing items that are lost, damaged, stolen, or deteriorated, or that are in an obsolete format. The law applies in a significantly different manner to unpublished and published works, as summarized below. Remember, if you do not fit the requirements of Section 108, you may still evaluate whether your use is within fair use or another statutory exception, or you may seek permission from the copyright owner.
Unpublished Works (Section 108(b))
A library or archives is permitted to make up to three copies of an unpublished work solely for purposes of preservation, security, or deposit at another library. One of the most important benefits of this provision is that a library may make copies of any unpublished work and even deposit copies at another library. The statute also explicitly permits digital formats for preservation, but with the restriction that access to the digital copy must be limited to the premises of the library.
Published Works (Section 108(c))
A library or archives is permitted to make up to three copies of a published work in order to replace an item that was in the collections. The work may be reproduced only if it is damaged, deteriorating, lost, stolen, or in an obsolete format. A work is considered to be in an obsolete format if the device needed to view the work is no longer available on the commercial marketplace for a reasonable price. In all events, the library must first determine whether an unused replacement of the work may be obtained on the market at a fair price. Like the law on unpublished works, this law permits digital formats for these reproductions, but again with the restriction that access to the digital copy must be limited to the premises of the library.