Transcript ILL & Copyright:

13th Annual VIVA Interlibrary Loan Community Forum
15 July 2011
Sweet Briar College
Jessica Bowdoin
Head, Interlibrary Loan, George Mason University (OCLC: VGM)
In consultation with Claudia Holland, Copyright Officer, George Mason University
The information in this presentation is not legal advice. I am not
a lawyer. I am not interpreting or analyzing elements of the law.
You should discuss your copyright practices with your
institution’s copyright officer and/or legal counsel to insure that
your institution is copyright compliant. The presentation may
include interpretations offered by others.



Federal law, Title 17—Copyrights (created by
Copyright Act of 19 Oct. 1976, effective Jan. 1978)
National Commission on New Technological Uses of
Copyrighted Works (CONTU) issued its report on 31
July 1978
Copyright law does change, ie: Digital Millennium
Copyright Act of 1998 amended Section 108



Allows libraries to purchase and lend copyrighted
works*
Ownership applies to the physical item, not the
intellectual content*
Does not apply to works licensed by contract*
*See Kristof, Cindy. “U.S. Copyright and Interlibrary Loan
Practice.” Interlibrary Loan Practices Handbook (2011, 3rd
ed.) 52.
1. Purpose of Use
Personal; Educational; Nonprofit;
Scholarship; Research; Commentary
or Criticism
Commercial; For Profit
2. Nature of Work
Fact; Published
Fiction; Highly Creative
(art, music, novels, films,
plays); Unpublished
3. Amount Used
Small Amount
Large Amount; “Heart” of work
4. Effect on Potential Market
Out of print/unavailable; Limited
& restricted audience; User
owns lawfully acquired copy; No
similar product available from
copyright holder
Competes with the market &
may replace a sale; Avoids paying
copyright royalties; Repeated &
long-term use; Made widely
accessible; Many copies made
http://copyright.cornell.edu/policies/docs/Fair_Use_Checklist.pdf
http://librarycopyright.net/fairuse/




Allows ILL departments to make, send and receive
copies of works
Allows libraries to make copies for individual patrons,
other libraries or for preservation purposes
Typically, does not apply to a musical work; a pictorial,
graphic or sculptural work; or a motion picture or
other audiovisual work
There are conditions!!!



“Rule of 5”
Requires including a copyright compliance statement
on ILL copy request (CCG or CCL)
Requires libraries to keep records of borrowing copy
requests for current year + 3 full years

Usually means articles from periodical titles
◦ Up to 5 “recently published” articles from a periodical title
within 1 calendar year
◦ “Recently published” published periodicals = within the past 5
years

Can mean article/chapter from non-periodical work
◦ Up to 5 copies of articles/chapters from non-periodical work
within 1 calendar year
◦ During work’s entire copyright term
For Periodical Articles:
 The article was published within the last 5 years AND
 Your library does not have a current subscription to
this title AND
 Your library has requested and received 4 or fewer
copies from this title this calendar year AND
 You are requesting only 1 article from any issue per
patron*
*condition of Section 108 of Copyright Law
For Book Chapters:
 The book is “in” copyright AND
 Your library does not own a copy AND
 Your library has requested and received 4 or fewer
copies from this book this calendar year AND
 You are requesting only 1 chapter (or a small portion)
from this book per patron*
*condition of Section 108 of Copyright Law




The periodical article was published more than 5
years ago OR
Your library has a current subscription to this
periodical title (or owns the book) but does not have
access to the title (ie: at bindery) OR
Your library otherwise determines another exception
under Copyright Law applies OR
You are paying copyright royalties or you have
permission to copy from the copyright holder







Pay copyright fee to CCC
Obtain permission to copy from copyright holder (may include
payment of royalty fee)
Purchase article from document delivery vendor who pays
copyright on your behalf (including publisher) – such as BRI
Borrow entire volume from another library
Refer patron to a nearby library with the issue in its holdings
Start a subscription to the journal
Cancel/deny ILL request until next calendar year



Entire works in public domain
Entire works or sections of works, if -- after
reasonable investigation -- a copy of a work cannot be
obtained at a “fair price”
Works governed by the provisions of a contract or
license agreement



Copies made/distributed with no purpose of
commercial gain
Collections open to the public
Copies include a notice of copyright
From 17 U.S.C. § 108 (a)




Patron requests no more than 1 article per periodical
issue or only a “small portion” of any other
copyrighted work
Copy becomes the property of the patron
Library believes copy will be used only for private
study, scholarship or research
Library displays a “warning of copyright” prominently
at the place where orders are accepted, and on the
order form
From 17 U.S.C. § 108 (d)
The copyright law of the United States (title 17, United States Code) governs the
making of photocopies or other reproductions of copyrighted material.
Under certain conditions specified in the law, libraries and archives are authorized
to furnish a photocopy or other reproduction. One of these specific conditions is that
the photocopy or reproduction is not to be “used for any purpose other than private
study, scholarship, or research.” If a user makes a request for, or later uses, a photocopy
or reproduction for purposes in excess of “fair use,” that user may be liable for
copyright infringement.
This institution reserves the right to refuse to accept a copying order if, in its
judgment, fulfillment of the order would involve violation of copyright law.
From 37 C.F.R. § 201.14
Screenshot from Mason’s ILLiad article request form





Display copyright warnings
Determine if CONTU Guidelines or Copyright Law
applies AND if you can fill the request legally
Indicate Copyright Compliance on all ILL copy
requests
Keep records
Work with others at your institution to examine ILL
requests and economic impacts—a subscription may
be cheaper than copyright royalty fees!


Know of copyright limitations impacting borrowing
libraries
Make sure copyright compliance is indicated
◦ If no: request cannot be filled

Determine if request from a borrowing library appears
to violate restrictions on copying set by CONTU and
Copyright Law
◦ If yes: request should be refused

Include appropriate Notice of Copyright on copies
provided to other libraries
Example of part of flowchart that might be used to in Lending
to determine if an article request adheres to CONTU Guidelines
or Copyright Law copy limits

If available, include copyright notice that appears in the
work (often on first page of article/chapter or in front
matter of work)

If not available, include a legend, such as:
Notice: This material may be protected by
Copyright Law (Title 17 U.S.C.)
Bartholomew, Mel. Square Foot Gardening: A New Way to
Garden in Less Space with Less Work. Rodale, 2005.
Copyright statement from verso page in book.
Archaeology Ethnology & Anthropology of Eurasia. 38/4
(2011) 52–59. Copyright statement on first page of
article in journal.
ABA Journal, July 2002 issue. Copyright
statement in front matter of issue.



Limited copying for purposes such as education,
research or private study, are usually exceptions
within national copyright legislation.
The requesting library must follow the copyright laws
of the supplying country.
The supplying library should inform the requesting
library of any copyright restrictions that might apply.
International Resource Sharing & Document Delivery: Principles and Guidelines for
Procedure (IFLA, latest revision: 2009)
http://www.ifla.org/files/docdel/documents/international-lending-en.pdf


U.S. Copyright Office (www.copyright.gov)
CONTU Guidelines
◦ Final Report of the National Commission on New Technological Uses of Copyrighted
Works (1978) (http://digital-law-online.info/CONTU/PDF/ index.html)
◦ CONTU Guidelines on Photocopying under ILL Arrangements (excerpt of report
from Chapter 4) (www.cni.org/docs/infopols/CONTU.html)





Medical Library Association’s Interlibrary Loan FAQ
(www.mlanet.org/government/positions/illfaq.html) [MLA’s FAQ is excellent—if you read nothing else
from my list of Primary or Secondary Sources, this is the document to read. It covers a lot of article
copyright questions in a very thorough and straightforward manner. And it’s available online for free!]
Kristof, Cindy. “U.S. Copyright and Interlibrary Loan Practice.” Interlibrary Loan Practices Handbook, 3rd
ed., 2011 (Chapter 4) [There is a new edition of the Virginia Boucher’s Interlibrary Loan Practices
Handbook.Virginia Boucher retired a while back, but her legacy lives on. The 3 rd edition, like previous
editions, includes a chapter on Copyright. I highly, highly recommend it.]
“Interlibrary Loan: Copyright Guidelines and Best Practices.” (Copyright Clearance Center White
Paper: March 2011) (http://www.copyright.com/content/dam/cc3/marketing/ documents/pdfs/ILLBrochure.pdf) [CCC’s white paper updates an older document similarly named. There is a typo in this
paper—it lists best practices for lending libraries twice—the first should be lending libraries, the
second should be borrowing libraries. Note: CCC tends to have a very conservative view of
copyright law and practice.Your institution may have a more liberal interpretation.]
University of Texas Libraries’ “Copyright Crash Course– Making Copies: Interlibrary Loan”
(http://copyright.lib.utexas.edu/l-108g.html) [Many universities have good copyright tutorials and
resources online, such as this one from Texas—which specifically deals with ILL. Other ones you
might want to explore for general copyright topics: Stanford, Columbia, Minnesota. Just Google the
institution’s name + “copyright”.]
Band, Jonathan. “The Impact of the Supreme Court’s Decision in Costco v. Omega on Libraries.” (Library
Copyright Alliance Policy Paper: January 2011)
(http://www.arl.org/news/pr/costcoupdate31jan11.shtml) [Library Copyright Alliance Policy Paper on
potential threats to exception in Section 109, which gives libraries the right to lend copyrighted
works.]
Questions?