Interlibrary Loan, E-Reserves, Replacements: When Can My Library Make Legal Copies? Mary Minow, J.D., A.M.L.S. LibraryLaw.com [email protected] Infopeople.

Interlibrary Loan, E-Reserves, Replacements:

When Can My Library Make Legal Copies?

Mary Minow, J.D., A.M.L.S.

[email protected]

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• Legal information

•Not legal advice!

ILL, E-Reserves, Replacements When Can My Library Make Legal Copies?

AGENDAFlow Chart

1. Interlibrary Loan

2. Replacement and Preservation Copies

3. E-Reserves

Is It OK to Digitize Your Special Collection?

Public Domain

Fair Use

Get Permission/License

If no

Sec. 108Librarie

s

If no

If no

Simple Flow Chart Photocopies or Scans

e.g. Copyright Clearance Center

www.infopeople.org/training/webcasts/ CLICK ARCHIVED

Public Domain

Fair Use

Get Permission/License

Sec. 108Librarie

s

Archived Webcasts Explain Public Domain, Fair Use

Facts

Recipes

Ideas

Dedicated works

Government works (U.S.)

Expired works

Public Domain: In the

FRIDGE

Lawsuits $750-$30,000 per incident

willful up to $150,000; innocent as low as $200

Reasonable belief it’s FAIR USE

and you are nonprofit library… $0 17 U.S.C. 504 (c); see also www.fairuse.stanford.edu

LibrariesShould Understand

Fair Use

Criticism, comment, teaching (including multiple copies for classroom use), scholarship and research

Courts consider

Purpose

Nature of work

Amount

Market harm

Fair Use

PNAM Factors

17 U.S.C. Sec. 107

Fair Use

Likely Yes Likely No

Purpose Nonprofit Create new

work +

Commercial No new work

Nature Reference, nonfiction

Published +

Fiction, Art Music Unpublished

Amount Small amt (relative to whole

original) +

Complete work Heart of work

Market Doesn’t hurt market of

original +

Hurts market or potential market of original

“Library”Open to public

17 U.S.C. Sec. 108 (a)(2)

Sec. 108Libraries

Specialized researchers nonaffiliated with institution

OR

• No copies for commercial advantage

and

• Include notice of copyright on copies

17 U.S.C. Sec. 108 (a)(1),(3)

I am aLIBRARY

Sec. 108Libraries

108

“Notice” on Copies

• Must copy original notice

© Mary Minow 2004

If none, must includelegend stating that

“the work may be protected by copyright”

17 U.S.C. Sect. 108(a)(3)

1. Interlibrary Loan CopiesHarbinger of Copyright Battles to Come

National Library of Medicine

sued for “unauthorized photocopies” for researchers

Appellate Court: FAIR USESupreme Court: 4-4 affirm

Congress added ILL to 1976 Copyright law

Williams & Wilkins v. U.S., 487 F.2d 1345, (1973), aff'd by an equally divided court, 420 U.S. 376 (1975)

See also Paul Goldstein, Copyright’s Highway for vivid history of case

CANADA: CCH Canadian Ltd. v. Law Society of Upper Canada, [2004] S.C.J. No. 12

Sec. 108

1. Interlibrary Loan Desk Forms: Required Wording

37 C.F.R. 201.14

18 point typeProminent displayDurable paper

Interlibrary Loan: Articles, Small Excerpts

17 U.S.C. Sect. 108(d)and(i)

• Library may copy for user’s private study or for ILL

• Photocopies or scans

• Becomes user’s property

No Systematic Copying Rule of Five

Systematic copying may substitute for purchase

Must be “isolated and unrelated”

17 U.S.C. Sect. 108(g) and CONTU www.cni.org/docs/infopols/CONTU.html

National Commission on New Technological Uses of Copyright Works (CONTU) established by Congress in 1976 – quantified 108(g)

Library may request 5 copies of articles from most recent 5 yrs of single journal title during calendar year

CONTU Rule of 5 Guidelines

Library may request 5 copies of articles from most recent 5 yrs of single journal title during calendar year

CONTU Rule of 5 Guidelines

Rule of Five Example

You don’t subscribe to MacAddict.

Can request ILLs for articles

Must tell lender you comply with copyright law

Keep log three years

www.cni.org/docs/infopols/CONTU.html

5 requests from issues published in last 5 years

What Do We Do If We Need a SIXTH Copy for a User?

SAFE OPTIONS

Borrow the issue

Permission from owner

Subscribe to journal

Request article through ILL but pay Copyright Clearance Center (CCC)

Order through reputable document delivery service

Or evaluate to see if use is FAIR USE

Or consider guidelines as

“suggestion of 5”

Or evaluate to see if use is FAIR USE

Or consider guidelines as

“suggestion of 5”

Interlibrary Loan: Copy Entire Works and Substantial Parts

May copy if

reasonable investigationshows library cannotbuy copy at a fair price

e.g. out of print

17 U.S.C. Sect. 108(e)and(i)

Sheet Music

Graphic

Audiovisual Works

May NOT Copy for ILL

17 U.S.C. Section 108(i)

DOES NOT APPLY TO

Musical, Graphic,

AV Works

17 U.S.C. Section 108(i)

OK to Copy for ILL

Graphics that are part of a book (print)

Audiovisual news programs

Interlibrary Loan Digital Copies (also Virtual Reference)

If library scans an article and follows the same rules, it’s no different from photocopies

So what’s the big deal?

17 U.S.C. Sect. 108(f)(4)

Interlibrary Loan Digital Copies (also Virtual Reference)

17 U.S.C. Sect. 108(f)(4)

If library scans article it’s no different from photocopies

So what’s the big deal?

Nothing in any way affects the contractual obligations assumed by the library

Librarians who sign contracts MUST understand this!

To explain …

Big Deal: Licenses Agreements

Trump ILL Copyright Law

17 U.S.C. Section 108(f)(4)

Default:

COPYRIGHT LAW

Allows ILL

Starting Point: Sec. 108 Allows ILL

www.copyright.gov/title17/

Librarians should notASK FOR ILL

It is already oursby law

Librarians should notsign contracts that prohibit ILL

Yet Contracts Override Copyright Law

Defaults back toCOPYRIGHT LAW which

Allows ILL

But license may have so many restrictions that ILL not possible (even without mentioning it)…

so look at ILL clauses

If License Silent ..

www.copyright.gov/title17/

“Model” License Binds library to CONTU Guidelines

Interlibrary Loan. Licensee may fulfill requests from other institutions, a practice commonly called Interlibrary Loan.

Licensee agrees to fulfill such requests in compliance with Section 108 of the United States Copyright Law (17 USC 108, "Limitations on exclusive rights: Reproduction by libraries and archives") and clause 3 of the Guidelines for the Proviso of Subsection 108(g)(2) prepared by the National Commission on New Technological Uses of Copyrighted Works.

Council on Library and Information ResourcesDigital Library FederationYale University Library

“Model” License Binds library to CONTU

GuidelinesInterlibrary Loan. Licensee may fulfill requests from other institutions, a practice commonly called Interlibrary Loan.

Licensee agrees to fulfill such requests in compliance with Section 108 of the United States Copyright Law (17 USC 108, "Limitations on exclusive rights: Reproduction by libraries and archives") and clause 3 of the Guidelines for the Proviso of Subsection 108(g)(2) prepared by the National Commission on New Technological Uses of Copyrighted Works.

Council on Library and Information ResourcesDigital Library FederationYale University Library

though not too meaningful since Lender Library not bound by Rule of Five

images.library.yale.edu/liblicense/

New Project: Standard vendor ILL license clauses at Liblicense project

Do you know what your licenses say?

Standard Elsevier licenses allow copying for interlibrary loan if printed and faxed

www.library.yale.edu/~llicense/index.shtml

Is It OK to Digitize Your Special Collection?

Public Domain

Fair Use

Get Permission/License

If no

Sec. 108Librarie

s

If no

If no

Can Still Evaluate To See If FAIR USE

Nothing in any way affects the right of fair use

May copy audiovisual, sheet music, graphics or anything else

if FAIR USE…or request permission

17 U.S.C. Section 108(f)(4)

2. Replacement and Preservation Copies2. Replacement and Preservation Copies

Make 3 CopiesMAY copy anything

Music, AV, Graphics

17 U.S.C. Sec. 108 (b)

I am aLIBRARY

108

Replacement Copies

PUBLISHED WORKS

damaged, deteriorating, lost, stolen works

Reasonable effort shows no new copy at fair price

Digital copies okay but may not be made available outside the library premises

17 U.S.C. Section 108(c)

Format Obsolete Replacement Copies Okay

May also copy if  the existing format in which the work is stored has become obsolete

17 U.S.C. Section 108(c)

Preservation and Security

Original is in your library

Digital copies okay but may not be made available outside the library premises

Research use in another library

17 U.S.C. Sec. 108 (b)

UNPUBLISHED WORKS

Is It OK to Digitize Your Special Collection?

Public Domain

Fair Use

Get Permission/License

If no

If no

If no

Can Still Evaluate To See If FAIR USE

Nothing in any way affects the right of

fair use

… or get permission

17 U.S.C. Section 108(f)(4)

Sec. 108Librarie

s

Is It OK to Digitize Your Special Collection?

Public Domain

Fair Use

Get Permission/License

If no

Sec. 108Librarie

s

If no

If no

3. E-Reserves

e.g. Copyright Clearance Center

Facts

Links are addresses FACTUAL

License agreements do not normally forbid

Still accessible only by authorized users

Becomes technical issue

May Post Linksto database articles

Not too helpful

Libraries can make individual copies on request by user

17 U.S.C. Sec. 108 (a)(1),(3)

I am aLIBRARY

Sec. 108Libraries

108

Criticism, comment, teaching (including multiple copies for classroom use), scholarship and research

Courts consider

Purpose

Nature of work

Amount

Market harm

Fair Use

PNAM Factors

17 U.S.C. Sec. 107

Applying Fair Use in the Development of Electronic Reserves Systems

Statement endorsed by Association of Research Libraries American Library AssociationAssociation of American Law Libraries

Association of College and Research LibrariesMedical Library Association Special Libraries Association

Encourages use … Importance of using FAIR USE

www.arl.org/access/eres/erespolicies.shtml

Paint ourselves into corner – if we always pay permissions, we lose FAIR USE

Library AssnsFair Use E-Reserves

Likely Yes Likely No

Purpose + Nonprofit education

Nature + Reference, nonfiction

Fiction, Art - Music

Amount + Small amt (relative to whole original)

Complete work (but may be necessary to teach)

Market + Students One Semester May not weigh as heavily based on PNA

MULTIMEDIA

Off-Air Broadcast Recording GuidelinesKeep up to 45 days … more specifics at

www.loc.gov/copyright/circs/circ21.pdf

Music (Digital Audio)Whole works okayAuthorized users only…more specifics at www.musiclibraryassoc.org/Copyright/

ereserves.htm

CONFU Multimedia GuidelinesMusic -10% but not more than 30 secondsMotion media - 10% but not more than 3 minutes…more at www.utsystem.edu/ogc/intellectualproperty/ccmcguid.htm

E-Reserves as extension of FAIR USE Classroom Guidelines

BrevityChapter from bookNewspaper articleShort story, essay or poemChart, graph, diagram, drawing, picture from book or newspaper

Spontaneity Unlikely to get permission in time

www.loc.gov/copyright/circs/circ21.pdf

Cumulative Effect Not a part of a larger amount of multiple copying, especially works of one author or from one volume.

• Purpose was to state minimum not maximum

• Do not have the force of law

• If followed risk of suit is minimal – called “safe harbor”

Classroom Guidelines Stingy, but “Safe Harbor”

Conference on Fair Use (CONFU)

E-Reserve Guidelines Fights

CONFUIf you use these guidelines, know they have no legal force or even industry agreement

www.utsystem.edu/ogc/intellectualproperty/confu.htm

Customs, professional norms factor heavily in

shrinking FAIR USE

Customs and FAIR USE

Fair Use

Fair Use

•E-Reserves– Brevity, spontaneity

•Coursepacks– Copy shops lose

Two court decisionsMany recent settlements

– 1983 settlement against NYU

No Reported Litigation on E-Reserves ... unlike Coursepacks

Princeton Univ. Press v. Michigan Document Service, 99 F.3d 1381 (6th Cir.1996); Basic Books v. Kinko's Graphics, 758 F.Supp. 1522 (S.D.N.Y. 1991);

Addison-Wesley Pub. v. New York University, 1983 (settled)

Public Domain

Fair Use

Get Permission/License

If no

Sec. 108Librarie

s

If no

If no

If You Don’t Think It’sFair Use

Get Permission Copyright Clearance Center

www.copyright.com/

March 2004

CCC fees changedwas .30 per copy Now $3.00 per

transaction

Plus royalty fees

Vary a lot - average13 cents per page per student

Don’t Forget Your Licensed Databases: Cornell Students Saved

$34,000

www.copyright.cornell.edu

Library-bookstore collaboration

Fees averaged $200,000 semester

Librarians reviewed subscription licenses for over 20,000 journals

Many had coursepack clauses

Negotiated for more

www.store.cornell.edu/text/cpub/publist.html

Bonus Slide: Cornell SharesPublishers Fees 2002

Publisher views on Fair Usee.g. Bantam Doubleday 10%

Publisher Charges Beyond Fair Use

MODEL LICENSE

Course Packs. Licensee and Authorized Users may use a reasonable portion of the Licensed Materials in the preparation of Course Packs or other educational materials.

Electronic Reserve. Licensee and Authorized Users may use a reasonable portion of the Licensed Materials for use in connection with specific courses of instruction offered by Licensee and/or its parent institution.

Council on Library and Information Resources Digital Library Federation

Yale University Library

www.library.yale.edu/~llicense/standlicagree.html

More Resources

American Library Associationwww.ala.org/copyright

Getting Permission. Copyright Crash Course. University of Texaswww.utsystem.edu/ogc/intellectualproperty

Richard Stim. Getting Permission: How to License & Clear Copyrighted Materials Online & Off. (Nolo: 1999)

LibraryLaw.com

Summary: Flow Chart

1. Interlibrary Loan

2. Replacement and Preservation Copies

3. E-Reserves

Public Domain

Fair Use

Get Permission/License

Sec. 108Librarie

s

Summary: Flow Chart

1. Interlibrary Loan

2. Replacement and Preservation Copies

3. E-Reserves

Public Domain

Fair Use

Get Permission/License

Sec. 108Librarie

sLICENSES TRUMP

COPYRIGHT LAW

Read Carefully and Negotiate