interlibrary loan, e-reserves, replacements: when can my library make legal copies? mary minow,...
TRANSCRIPT
Interlibrary Loan, E-Reserves, Replacements:
When Can My Library Make Legal Copies?
Mary Minow, J.D., A.M.L.S.
Infopeople Webcast
Tuesday April 6, 200412:00 noon to 1:00 p.m
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•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Fiction, Art Music Unpublished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