Academic Libraries Remediating “Born PDFs”

Submission Date:

Monday, June 9, 2025

Question:

We currently offer a service that collects older static PDFs of library/research content and provide faculty with a URL (or permalink) to that resource in our library’s digital collections. This service provides the following enhancements:

• Increases accessibility as links will always test as accessible in Brightspace (DLE/LMS)
• Enhance student discovery of library resources.
• Provide more accurate usage metrics that influence library subscription decisions.

Occasionally, we come across an old scanned PDF of a book chapter or scholarly article that we do not subscribe to.

Our question is: If we publicly offer to remediate (as best we can) published content that we do not subscribe to or own so that faculty can place an accessible version of them in their course shells, are we violating copyright? Keep in mind these materials would only be shared with students of specific courses and would be available only through the learning management system that requires a login.

Answer:

This is a great question! I cannot wait to dive into the various sections of the Copyright Act that address this.

Before that, however, it is important to define the scope of what is being done (and what is NOT being done).

Of relevance:

• This is being done by an academic library;
• This is being done in a closed environment (not the open web);
• This is being done for access to materials in academic classes.

Also of relevance: the question is limited to published material that the institution does not subscribe to or own. We will assume that this “old” content is not so old as to be out of copyright.

I am sure there are many names in the archives/library biz for this type of asset (“old scanned article” being one of them). But for purposes of this answer, let’s call them Useful But Unacquired Proprietary Electronic Academic Artifacts, or UBUPEAA’s.[1]

And now it is time to dive.

There are not many ways an academic library can justify re-homing and providing a UBUPEAA[2] via a permalink in the library’s digital collections for purposes of classroom use.

Let’s talk about what doesn’t allow this:

Section 108 of the Copyright Act, which does allow libraries to make copies under certain circumstances, specifically doesn’t apply when the library “is aware… that it is engaging in the related or concerted reproduction or distribution of multiple copies… intended… for separate use by the individual members of a group.”[3] So, expressly creating the link for a class (“a group”) is not allowed by Section 108.

Section 107 (“fair use”), which allows anybody to make copies under certain circumstances, cannot reliably enable internal posting of UBUPEAA’s, because each article would have to be analyzed separately (and the analysis could change, based on a particular use).[4]

Section 110, sub-sections (1) and (2), could allow the URL if it is enabling the “performance or display” of the PDF during a synchronous or asynchronous teaching session,[5] but only to the extent that the materials are displayed and shared during the class (not for homework outside class time).

BUT!

Let’s go back to Section 108.

It is important to remember that the decision of the library to make one copy under Section 108 is different than a decision by an instructor or student regarding how to use the copy.

Under Section 108, an academic library can:

(a)… reproduce no more than one copy… if—

(1) the reproduction or distribution is made without any purpose of direct or indirect commercial advantage;

(2) the collections of the library or archives are (i) open to the public… ; and

(3) the reproduction or distribution of the work includes a notice of copyright…

Although the law and the guidance on it largely pre-date scanning and the internet,[6] Section 108 does NOT state how this 108(a) “reproduction” must be made.

So, a regular practice of putting a UBUPEAA on its own URL as part of that academic library’s collection might—unless the library is doing so to gain a “commercial advantage”—be allowed, if the other requirements of Section 108 are followed.[7]

After that, “distribution” of the copy in the collection to others must fall into one of the uses allowed by Section 108.

In this case, after making the article part of the collection, Section 108(d) allows a user (not the library!) to make a copy if:

(1) the copy… becomes the property of the user, and the library or archives has had no notice that the copy or phonorecord would be used for any purpose other than private study, scholarship, or research; and

(2) the library or archives displays prominently, at the place where orders are accepted, and includes on its order form, a warning of copyright in accordance with requirements that the Register of Copyrights shall prescribe by regulation.

This approach turns on TWO VERY IMPORTANT things: 1) no awareness that the original PDF is creating a “commercial advantage” (like saving a licensing fee) and 2) no awareness by the library that there is a plan for “concerted reproduction” (like creating a course pack).

This is where defining the role of the academic library in creating the link is critical.

Unlike when assembling a course packet or ensuring articles available via subscription are accessible prior to listing them on the syllabus,[8] UBUPEAA should only be listed in the collection as available—not prepared for organized dissemination.

And now, I have to set out a very clear disclaimer.

This is NOT a work-around for making articles available without purchase or a license! Remember that the library must be confident that the PDF was not created in a way that creates a “commercial advantage”; if a copy or a subscription is available, this is NOT the solution!

How does this play out in the real world? If a library happens upon a scan of an article published in 2020 with a clear copyright notice published by a readily discernible source that will license it, further use of it will very likely create a “commercial advantage.” But, if a library happens upon a scan of an article it can’t locate via a subscription service, and the copyright owner cannot be discerned, the “108(a) and(d) solution” may be a good approach.

The other approach alluded to in the question—which is to make the copies available but ensure they are behind logins and thus not easily detectable by owners who might be trying to ferret out infringement—is not an allowable use but rather a type of risk management.[9]

For a state institution that is arguably newly immune from copyright liability,[10] this risk might be one the institution wants to take.[11]

For a private institution that is unquestionably subject to the jurisdiction of the federal courts for copyright infringement claims, this risk is much higher and should simply not be taken.

So where does this leave us?

The member asked: If we publicly offer to remediate (as best we can) published content that we do not subscribe to or own so that faculty can place an accessible version of them in their course shells, are we violating copyright?

The answer is “very likely yes.”

But if the question is:

If we publicly offer to remediate (as best we can) published content that we cannot otherwise subscribe to or own and place it in our collection, are we violating copyright?

The answer is, “with proper care, no.”

A heuristic for deciding to add UBUPEAA to a library’s collection would be:

1. Are we aware that or are there clear signs that the PDF was made/obtained illegally?
2. Is there a readily discernable copyright owner or licensing agent we can ask for permission to make/access the copy?
3. Is there an easily determined, reasonable cost to otherwise obtaining the content of the PDF?

If the answer to any of these questions is “yes,” the PDF might not just be UBUPEAA; it could also be an IFALS.[12] But if the answers document that there is no “commercial advantage” to using the PDF, making and hosting a copy as allowed by Section 108(a) and adding it to the collection, for use as any other library item under Section 108(d), is feasible.

Thank you for a great question!

Tag:

Copyright, Academic Libraries, Section 108, Fair Use, Copyright Act Section 107, Licensing