Transcript Interlibrary Loan, E-Reserves, Replacements: When Can My Library Make Legal Copies? Infopeople Webcast Tuesday April 6, 2004 12:00 noon to 1:00 p.m Mary Minow, J.D., A.M.L.S. LibraryLaw.com [email protected].

Interlibrary Loan, E-Reserves,
Replacements:
When Can My Library Make Legal Copies?
Infopeople Webcast
Tuesday April 6, 2004
12:00 noon to 1:00 p.m
Mary Minow, J.D., A.M.L.S.
LibraryLaw.com
[email protected]
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Legal Disclaimer
• Legal information
• Not legal advice!
ILL, E-Reserves, Replacements
When Can My Library Make Legal Copies?
AGENDA
Flow Chart
1. Interlibrary Loan
2. Replacement and
Preservation Copies
3. E-Reserves
SimpleYour
FlowSpecial
Chart Collection?
Is It OK to Digitize
Photocopies or Scans
Public
Domain
If no
Sec. 108
Librarie
s
If no
Fair Use
If no
Get Permission/License
e.g. Copyright Clearance Center
Archived Webcasts Explain
Public Domain, Fair Use
Public
Domain
Sec. 108
Librarie
s
Fair Use
Get Permission/License
www.infopeople.org/training/webcasts/
CLICK ARCHIVED
Public Domain: In the
FRIDGE
Facts
Recipes
Ideas
Dedicated works
Government works
(U.S.)
Expired works
Libraries
Should Understand
Fair Use
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
Fair Use
Criticism, comment, teaching (including multiple
copies for classroom use), scholarship and research
Courts consider
Purpose
Nature of work
Amount
Market harm
PNAM
Factors
17 U.S.C. Sec. 107
Fair Use
Likely Yes Likely No
Purpose
Nonprofit
Create new
Nature
Reference,
nonfiction
Amount
Published
Small amt
(relative to
whole
Market
original)
+
Doesn’t hurt
Hurts market or
market of
potential market
original
+ of original
work
Commercial
No new work
+
Fiction, Art
Music
+
Unpublished
Complete work
Heart of work
Sec. 108
Libraries
“Library”
Open to public
OR
Specialized researchers nonaffiliated
with institution
17 U.S.C. Sec. 108 (a)(2)
Sec. 108
Libraries
I am a
LIBRARY
• No copies for
commercial advantage
and
108
• Include notice of
copyright on copies
17 U.S.C. Sec. 108 (a)(1),(3)
“Notice” on Copies
• Must copy original notice
© Mary Minow 2004
If none, must include
legend stating that
“the work may be
protected by copyright”
17 U.S.C. Sect. 108(a)(3)
1. Interlibrary Loan Copies
Harbinger of Copyright Battles to Come
National Library of Medicine
sued for “unauthorized
photocopies” for researchers
Appellate Court: FAIR USE
Supreme Court: 4-4 affirm
Congress added ILL
to 1976 Copyright law
Sec. 108
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
1. Interlibrary Loan Desk Forms:
Required Wording
18 point type
Prominent display
Durable paper
37 C.F.R. 201.14
Interlibrary Loan:
Articles, Small Excerpts
• Library may copy for
user’s private study
or for ILL
• Photocopies or scans
• Becomes user’s
property
17 U.S.C. Sect. 108(d)and(i)
No Systematic Copying
Rule of Five
Systematic copying may
substitute for purchase
Must be “isolated and
unrelated”
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
17 U.S.C. Sect. 108(g) and CONTU www.cni.org/docs/infopols/CONTU.html
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
5 requests from issues published in last 5 years
www.cni.org/docs/infopols/CONTU.html
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”
Interlibrary Loan:
Copy Entire Works and Substantial Parts
May copy if
reasonable investigation
shows library cannot
buy copy at a fair price
e.g. out of print
17 U.S.C. Sect. 108(e)and(i)
May NOT Copy for ILL
Sheet Music
Graphic
Audiovisual
Works
17 U.S.C. Section 108(i)
OK to Copy for ILL
Graphics that are part
of a book (print)
DOES
NOT news
APPLY TO
Audiovisual
programs
Musical,
Graphic,
AV Works
17 U.S.C. Section 108(i)
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)
If library scans article
it’s no different from
photocopies
So what’s the big deal?
17 U.S.C. Sect. 108(f)(4)
Big Deal: Licenses Agreements
Trump ILL Copyright Law
Nothing in any way
affects the contractual
obligations assumed
by the library
Librarians who sign
contracts MUST
understand this!
To explain …
17 U.S.C. Section 108(f)(4)
Starting Point:
Sec. 108 Allows ILL
Default:
COPYRIGHT LAW
Allows ILL
www.copyright.gov/title17/
Yet Contracts Override
Copyright Law
Librarians should not
ASK FOR ILL
It is already ours
by law
Librarians should not
sign contracts that
prohibit ILL
If License Silent ..
Defaults back to
COPYRIGHT LAW which
Allows ILL
But license may have so many
restrictions that ILL not possible
(even without mentioning it)…
so look at ILL clauses
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 Resources
Digital Library Federation
Yale University Library
“Model” License
Binds library to CONTU Guidelines
Interlibrary Loan.
Licensee may fulfill requests from other
institutions,
a practice
commonly called
though not
too meaningful
since
Interlibrary
Loan.
Lender Library
not bound by
Rule ofagrees
Five to fulfill such requests in
Licensee
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 Resources
Digital Library Federation
Yale University Library
Do you know what
your licenses say?
New Project: Standard vendor ILL
license clauses at Liblicense project
images.library.yale.edu/liblicense/
Standard Elsevier licenses allow copying
for interlibrary loan if printed and faxed
www.library.yale.edu/~llicense/index.shtml
IsCan
It OK
to Digitize
Your
Collection?
Still
Evaluate
To Special
See If FAIR
USE
Public
Domain
If no
Sec. 108
Librarie
s
If no
Fair Use
If no
Get Permission/License
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 Copies
I am a
LIBRARY
Make 3 Copies
MAY copy anything
Music, AV, Graphics
108
17 U.S.C. Sec. 108 (b)
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
UNPUBLISHED WORKS
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)
IsCan
It OK
to Digitize
Your
Collection?
Still
Evaluate
To Special
See If FAIR
USE
Public
Domain
If no
Sec. 108
Librarie
s
Nothing in any way
affects the right of
fair use
… or get permission
If no
Fair Use
If no
Get Permission/License
17 U.S.C. Section 108(f)(4)
Is It OK to Digitize
Your Special Collection?
3. E-Reserves
Public
Domain
If no
Sec. 108
Librarie
s
If no
Fair Use
If no
Get Permission/License
e.g. Copyright Clearance Center
May Post Links
to database articles
Facts
Links are addresses
FACTUAL
License agreements do
not normally forbid
Still accessible only by
authorized users
Becomes technical issue
Sec. 108
Libraries
I am a
LIBRARY
108
Not too helpful
Libraries can make
individual copies on
request by user
17 U.S.C. Sec. 108 (a)(1),(3)
Fair Use
Criticism, comment, teaching (including multiple
copies for classroom use), scholarship and research
Courts consider
Purpose
Nature of work
Amount
Market harm
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 Association
Association of American Law Libraries
Association of College and Research Libraries
Medical Library Association
Special Libraries Association
Encourages use …
Importance of using Paint ourselves into
corner – if we always
FAIR USE
pay permissions, we lose
FAIR USE
www.arl.org/access/eres/erespolicies.shtml
Library Assns
Fair Use E-Reserves
Likely Yes
Likely No
Purpose
+
Nature
+
Reference,
nonfiction
Fiction, Art
Music
Amount
+
Complete work
(but may be
necessary to teach)
Market
+
Nonprofit
education
Small amt
(relative to
whole original)
Students
-
MULTIMEDIA
Off-Air Broadcast Recording Guidelines
Keep up to 45 days
… more specifics at
www.loc.gov/copyright/circs/circ21.pdf
Music (Digital Audio)
Whole works okay
Authorized users only
…more specifics at
www.musiclibraryassoc.org/Copyright/eres
erves.htm
CONFU Multimedia Guidelines
Music -10% but not more than 30 seconds
Motion 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
Brevity
Chapter from book
Newspaper article
Short story, essay or poem
Chart, graph, diagram, drawing,
picture from book or newspaper
Spontaneity
Unlikely to get permission in time
Cumulative Effect
Not a part of a larger amount of multiple copying,
especially works of one author or from one volume.
www.loc.gov/copyright/circs/circ21.pdf
Classroom Guidelines
Stingy, but “Safe Harbor”
• Purpose was to state
minimum not
maximum
• Do not have the
force of law
• If followed risk of
suit is minimal –
called “safe harbor”
Conference on Fair Use (CONFU)
E-Reserve Guidelines Fights
CONFU
If you use these guidelines,
know they have no legal
force or even industry
agreement
www.utsystem.edu/ogc/intellectualproperty/confu.htm
Customs and FAIR USE
Customs, professional
norms factor heavily in
shrinking FAIR USE
Fair
Use
Fair
Use
No Reported Litigation on EReserves ... unlike Coursepacks
•E-Reserves
– Brevity, spontaneity
•Coursepacks
– Copy shops lose
Two court decisions
Many recent settlements
– 1983 settlement
against NYU
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)
If You Don’t Think It’s
Fair Use
Public
Domain
If no
Sec. 108
Librarie
s
If no
Fair Use
If no
Get Permission/License
Get Permission
Copyright Clearance Center
March 2004
CCC fees changed
was
.30 per copy
Now $3.00 per
transaction
Plus royalty fees
Vary a lot - average
13 cents per page
per student
www.copyright.com/
Don’t Forget Your Licensed Databases:
Cornell Students Saved $34,000
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.copyright.cornell.edu
Bonus Slide: Cornell Shares
Publishers Fees 2002
Publisher views on Fair Use
e.g. Bantam Doubleday 10%
Publisher Charges
Beyond Fair Use
www.store.cornell.edu/text/cpub/publist.html
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 Association
www.ala.org/copyright
Getting Permission. Copyright Crash Course.
University of Texas
www.utsystem.edu/ogc/intellectualproperty
Richard Stim. Getting Permission: How to
License & Clear Copyrighted Materials Online &
Off. (Nolo: 1999)
LibraryLaw.com
Summary: Flow Chart
Public
Domain
1. Interlibrary Loan
2. Replacement and
Preservation Copies
3. E-Reserves
Sec. 108
Librarie
s
Fair Use
Get Permission/License
Summary: Flow Chart
Public
Domain
1. Interlibrary Loan
LICENSES TRUMP
2. Replacement
and
COPYRIGHT
LAW
Sec. 108
Librarie
s
Preservation Copies
3. E-Reserves
Read Carefully and
Negotiate
Fair Use
Get Permission/License