COPYRIGHT ISSUES IN
FOR-PROFIT SPECIAL LIBRARIES:
A HANDBOOK FOR NON-LAWYERS
By Carol Helgerson
INTRODUCTION
1. Copyright terminology
2. Copyright Act of 1976
3. Section 106: What is Copyright?
4. Section 107: Fair Use
5. Section 108: The Library Exemption
6. Guidelines for For-Profit Libraries
a. Robert Goddard’s Guidelines
b. AALL Guidelines (1997, Revised 2001
)
c. CONTU Guidelines
7. Digital Millenium Copyright Act (DMCA
)
8. Copyright Clearance Center (CCC
)
9. Document Delivery Services (DDS
)
10. Getting Permission
11. Collective Rights Organizations
CONCLUSION
INTRODUCTION
For-profit special libraries share many of the same copyright concerns
as not-for-profit libraries. What are the differences? What
are the similarities? What adjustments must a library professional
make when entering the for-profit special library setting or changing from
the non-profit setting to the for-profit setting? Does a commercial
setting mean “fair use” no longer applies? Is the “library exemption”
no longer valid in a law, medical, museum, or corporate library that is
not open to the public? How do the CONTU guidelines operate? What is CCC?
What are Document Delivery Services; are they reliable? What changes
did the DMCA make affecting the for-profit special library? Who makes
the final call in determining whether a copyright infringement has occurred?
Will Copyright Law be a constant battleground for librarians, publishers,
software developers, lawyers, and legislators? If ignorance of the
law is no excuse, how do librarians, educators and writers protect themselves
and their libraries, schools and writings?
The Library of Congress and the U.S. Copyright Office are the best sources
for answers about the Copyright Law. The Internet provides easy access to
straightforward definitions and the Copyright Law itself, as well as the
complex arguments behind the present laws. A legal advisor, skilled
in intellectual property law, and copyright law
in particular, can be an important asset in explaining those laws.
Remember that legislators make the laws, but courts interpret them. So implications
of laws can change as court decisions determine circumstantial nuances.
Educating oneself is the first step toward preventing copyright disasters.
This may involve reviewing original documents and laws, as well as cases
that have tested the laws. Copyright professionals who are librarians,
lawyers, publishers, and information technology specialists each have a point
of view on copyright issues. Librarians can read about copyright in publications
from professional library associations like ALA, SLA, ARL, MLA,
AALL. Each divulges a wealth of fact and opinion, imbued with a practical
eye toward helping librarians accomplish their mission without needing copyright
damage control.
1. Copyright terminology
The United States Copyright Office website at
http://www.copyright.gov/help/faq/faq-definitions.html
defines
basic concepts and terminology for the lay person or the librarian on
its FAQ pages. Some definitions include
• What is Copyright?
• Who can claim Copyright?
• What works are protected?
• Who is an author?
• What is a deposit?
• What is a publication?
• What is a copyright notice and how do I put a copyright
notice on my work?
• What is copyright infringement?
• What is peer-to-peer (P2P) networking?
• Where is the public domain?
• What is mandatory deposit?
• What is a work made for hire?
Most definitions from the Copyright Office link to a printable Publication
or Circular. The librarian desiring more detail and depth will investigate
the Copyright Office website or other sources and find several ways to contact
the Copyright Office with questions. If a reader prefers to order copies
of Circulars or Publications, the Office has a Contact Us provision for
basic assistance, but not legal opinion, on copyright subjects. Factsheets
and Circulars that give advice about forms, fees, registration, and other
copyright procedures can be printed in text or PDF format and are on
Circular 1
at http://www.copyright.gov/circs/circ1.html
.
Commissioned works
While most librarians think they know all the
basic definitions, a review of concepts like “works made for hire” discloses
the exceptions to authors owning copyright. When an employee writes a document
that is commissioned by his employer, or that is written within the scope
of his or her employment, the employee may transfer ownership to the employer
or university the author works for. The copyright transfer would be a formal
agreement signed by the author(s). The terms of this transfer arrangement
are usually determined by the legal office of the employer or university.
For an example of a copyright transfer agreement for the Society of Naval
Architects and Marine Engineers, see
http://www.sname.org/author_instructions.htm
.
These are the commissioned works covered in article 101 of Title 17 U.S.
Code: http://www.copyright.gov/circs/circ01.pdf
• a contribution to a collected work
• a part of a motion picture or other audiovisual work
• a translation
• a supplementary work
• a compilation
• an instructional text
• a test
• answers to a test
• an atlas
Q. What if there are multiple authors who have made original “copyrightable
expressions?”
A. The joint authors of a book are co-owners of the copyright, unless they
make other agreements.
Q. What is “copyrightable expression?”
A. Copyrightable expression is original authorship, fixed in a tangible
medium of expression. 17
Table 1. Works that can and cannot be copyrighted:
http://www.copyright.gov/circs/circ01.pdf
|
Works that can be copyrighted: |
Works that cannot be copyrighted: |
|
Literary works (prose, poetry, drama, Computer programming) |
Mere facts |
|
Musical works, including any accompanying words |
Exact duplication of public domain works |
|
Dramatic works, including any accompanying music |
Forms that collect but not provide information |
|
Pantomimes and choreographic works
|
Logos and slogans (other IP protection) |
|
Pictorial, graphic, sculptural (includes maps and architectural plans) |
Ideas |
|
Recorded music and/or song (CDs, audiotapes, 33’s, & other recorded media) |
Titles and short phrases |
|
Video footage, motion pictures, other Audio Visual work including animations |
Works by Fed. Govt. employees |
|
Java applets |
Systems |
|
A Web page |
|
|
Photographs |
|
|
Musical notation |
|
Feist Publications v. Rural Telephone Service co., Inc. – 1991
This case dealt with the originality and creative
expression necessary for a work to be copyrightable and receive the protection
of copyright. Feist Publications’ compilation of a telephone directory
from information in the Rural Telephone Service White Pages was not a copyright
infringement, because the contents were mostly facts arranged conventionally
not artistically or creatively. (Diotalevi 2003, 2) This telephone book was
not copyrightable.
Publication of an article in a journal transfers some rights to publishers
and, when digitized, to a library’s licensed database publisher, which establishes
the terms of the license. It is up to the Librarian to read, understand,
and interpret the license, even if the license was “shrink-wrapped” and non-negotiable.
The more digital and available our documents become, the more convoluted
copyright issues become. Recognizing copyright ownership becomes important
when reproduction issues arise in non-profit situations but even more in
for-profit libraries. A good website to see about “Who owns what?”
is at the
The UT website offers questions to ask when trying to establish legal ownership and links to a document entitled “Getting Permission.”
http://www.utsystem.edu/ogc/intellectualproperty/permissn.htm
Check out the websites
at UT for many hints on what to do next.
2. COPYRIGHT ACT OF 1976
Justice Sandra Day O’Connor wrote in the 1994 Supreme Court in Feist
v. Rural Telephone that “[t]he primary objective of copyright is not
to reward the labor of authors, but to promote the Progress of Science and
useful Arts. To this end, copyright assures authors the right to their
original expression, but encourages others to build freely upon the ideas
and information conveyed by a work.” (Feist Publication, Inc. v.
Rural Tel. Serv. Co., 449 U.S. 340, 349-50
(1991) quoted in Diotalevi 2003, 2) Justice O’Connor reaffirmed the
Constitutional framework for copyright law set up by the founding fathers
in U. S. Constitution, Article 1, Section 8, clause 8. Balancing the
rights of authors and copyright owners with the benefits to society of access
to information, literature, music, art, and archival documents is the purpose
of copyright law. Librarians work to protect access to individual users
within the confines of Copyright Law.
Copyright law is encoded in Title 17 of the Copyright Act of October, 1976
(17 U.S. Code, Article 101).
Article 101 deals with copyright basics.
Article 106 deals with the copyright holder’s "Exclusive Rights in copyrighted
works.”
Article 107 defines Fair Use, which limits exclusive rights and makes exceptions
for
“reproduction in copies or phonorecords” when all four Fair Use factors
are met.
Article 108 discusses “Reproduction by libraries and archives” and
gives conditions whereby an employee making reproductions at the request
of a patron is not a copyright infringement of the copyright holder’s exclusive
rights. The entire code provides protection to the copyright owner
of “original works of authorship.” The specific exemptions that free some
libraries and archives from needing to seek and receive permission to copy
are not always available to the specialized or corporate for-profit library.
The profit factor may change all that.
3. Section 106: What is Copyright?
Section 106 gives the copyright owner "exclusive rights" to do or to authorize
others to do the following:
• To reproduce the work in copies or phonorecords;
• To prepare derivative works based upon the work;
• To distribute copies or phonorecords of the work to
the public by sale or other transfer of ownership, or by rental, lease, or
lending;
• To perform the work publicly, in the case of literary,
musical, dramatic, and choreographic works, pantomimes, and motion pictures
and other audiovisual works;
• To display the work publicly, in the case of literary,
musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic,
or sculptural works, including the individual images of a motion picture
or other audiovisual work; and
• In the case of sound recordings, to perform the work
publicly by means of a digital audio transmission.
http://www.copyright.gov/circs/circ01.pdf
Q. When does copyright protection begin?
A. Copyright protection starts as soon as the work is created in
a fixed or tangible form. At that time, the author immediately claims
copyright, even if he has not made any effort to contact the U.S. Copyright
Office. If the author wishes to pursue copyright infringement against others,
registering his creative work and paying the essential, nonrefundable filing
fee of $30 to the Library of Congress, Copyright Office is necessary to prove
his claim of authorship. The protection is valid for both published
and non-published works, no matter what nationality or residence the author
has.
http://www.copyright.gov/circs/circ01.pdf
4. Section 107: Fair Use
Copyright protection is not limited in the following use of materials
:
Notwithstanding the provisions of sections 106 and 106A, the fair use of
a copyrighted work, including such use by reproduction in copies or phonorecords
or by any other means specified by that section, for purposes such as criticism,
comment, news reporting, teaching (including multiple copies for classroom
use), scholarship or research, is not an infringement of copyright.
17 U.S. Code [section] 107
If literary criticism is the end result, the
writing to be criticized may be selectively copied. If commentary
is the use for photocopying statement, the statement may be copied.
In addition to the above uses of works, three automatic defenses against
copyright infringement are available when
1. The work is in the public domain. This includes
most U. S. Federal Government documents except for those that are protected
for security reasons and works that do not meet statutory requirements for
copyright.
2. The copyright has expired. For example, the
life of the author + 70 years (This was changed from 50 years March 1, 1978
when the Sonny Bono Term Extension Act added 20 years.)
3. The copyright holder may have granted permission to
use the work to another.
With “public domain” there are no exclusive rights associated with the
work and no one to ask permission to use it, copy it, distribute it, or
adapt it. It belongs to everyone.
4 Fair Use Factors
Determining the Use of a copyrighted work is a key to the defense under
the fair use doctrine by any library, but particularly the for-profit library
in a commercial establishment. Librarians who are asked to reproduce
works need to consider four questions about the use of the item in order
to apply all four of these “fair use” factors.
1. purpose and character of the use, including
whether such use is of a commercial nature or is for nonprofit educational
purposes;
2. nature of the copyrighted work;
3. amount and substantiality of the portion used
in relation to the copyrighted work as a whole; and
4. effect of the use upon the potential
market for or value of the copyrighted work.
When a non-profit, academic, government or school library considers “fair
use” factor 1, purpose and character of use, making photocopies that are
for non-profit, educational use are not generally a problem. These
libraries still must assure that the other three factors are not ignored,
even if the first factor is definitely “fair use.” Most important for
the for-profit library which might be in a hospital, business, or law firm,
is the nature of the use. There is no definitive test, but a judgment
call, which might, unfortunately be made by a court.
American Geophysical Union v. Texaco, Inc.
One example of a disastrous legal outcome, that was petitioned to but not
argued in the Supreme Court, established a legal precedent is the Texaco
case in mid 1980’s. In the early 1980’s a large number of publishers and their
representatives, the American Association of Publishers (AAP) and Copyright
Clearance Center (CCC), brought suit against Texaco, Inc. The publishers
had won a few recent cases against other businesses (Gnomon, Cyanamid, Squibb
and Pfizer) accusing them of copyright infringement. (Ralph 1994 and 2001,
6) The case of American Geophysical Union v. Texaco, Inc. has since become
an unfortunate landmark for libraries and librarians, especially those in
commercial establishments. In the Texaco case, photocopies of articles
in a specialized journal were made for research and development purposes
by a company scientist, supposedly not a librarian. Six scientific publishers
filed a class action suit in New York State District Court against Texaco
representing other publishers registered with the Copyright Clearance Center
(CCC). The District Court and the Second Circuit Court of Appeals ruled
against Texaco’s “fair use” defense that the photocopies were made for personal
research use to benefit the general public. The courts followed a
strict interpretation of Section 107. Section 108 was not used by
Texaco in its defense.
http://arl.cni.org/info/frn/copy/texaco.html
The Decision against Texaco
Using “fair use” standards, the U. S. District Court ruled against Texaco,
on the basis that an analysis of the purpose of “fair use” #1 was related
to the company’s profit motive. The court argued that researchers would use
the information for corporate gain, not purely personal edification. They
also decided against Texaco on “fair use” #3, the proportion of the work
used, since entire original articles, notes and letters were copied, and
also on “fair use”#4, the affect on the market, stating that Texaco had not
paid but could have paid royalties through the CCC. The 2d Circuit Court
of Appeals upheld the first court’s decision in 1994. After petitioning
the Supreme Court in April of 1995, Texaco came to an agreement with a
representative committee from the publishers and settled out of court on
May 15, 1995. In settling out of court, Texaco did not admit it had
committed a copyright infringement, but paid a huge seven figure settlement
and a licensing fee to the CCC that was retroactive. Texaco also made
annual license agreements with CCC for five years following the settlement.
http://arl.cni.org/info/frn/copy/texaco.html
Amicus Curiae brief
The Association of Research Libraries (ARL), ALA, and other library associations
vehemently disputed the lower court’s flawed reasoning and decision.
ARL recognized the distinction between photocopying in academic or non-profit
libraries and what happened at Texaco. ARL and the American Library
Association (ALA) filed Amicus Curiae briefs in March, 1993. Sarah
Wiant ‘s thoughtful description of the settlement shows the difference between
educational types of copying by librarians under Section 108 and the way
the court interpreted this case under Section 107. The ARL brief also
indicates how many relevant “fair use” issues the lower courts in the Texas
case ignored, which are issues that were never put to a legal test by a Supreme
Court Justice when the case did not go to trial there. This case has made
life difficult for libraries, especially the for-profit libraries, ever
since.http://arl.cni.org/info/frn/copy/texaco.html
The ARL brief was written by Sarah K. Wiant. A portion of it reads
:
“The [Texaco] case does not apply to the following:
• copying done in nonprofit educational institutions
for educational purposes;
• copying done by libraries and archives under section
108 of the Copyright Act of 1976.
For-profit institutions directly affected should think about how they wish
to handle licenses for copying that exceeds fair use. Permission to
copy may be obtained directly from publishers, document delivery service
whose fees include royalty payments may provide another avenue for paying
royalties, or organizations may choose to join the CCC and other licensing
agencies.” http://www.arl.org/copyright/texaco/settlement
(Sarah K.Wiant 1995)
Fair Use tests
Several helpful tests for “fair use” can be
found online. Georgia Harper from the University of Texas, Office of General
Counsel, Intellectual Property Division provides
a test of Fair Use that allows the user to balance each factor on a continuum
from “probably fair use” to “probably not fair use.” She warns that
at the end, courts seem inclined to favor the fourth
Fair Use factor, when the other 3 factors lean toward a for-profit
use. See
http://www.utsystem.edu/ogc/intellectualproperty/copypol2.htm
A helpful checklist for “fair use” created at
Purdue University can be found by visiting their Copyright Management Center
at
http://www.copyright.iupui.edu/
In both cases, commercial motivations are likely to sway the court against
the for-profit library’s use of the “fair use” exemption. Publishers
want their authors protected.
5. Section 108: The Library Exemption
Section 108 of the U.S. Copyright Law extends the exemption beyond “fair
use” to allow libraries and archives to make copies for interlibrary loan
(ILL), preservation, and replacements. As opposed to “fair use” considerations
which are determined on a cases-by-case basis, Section 108(a) begins with
a general statement and makes three additional qualifying statements: (Minow
and Lipinski 2003, 40-41)
Except as otherwise provided in this title and notwithstanding the
provisions of section 106, it is not an infringement of copyright for a library
or archives, or any of its employees acting within the scope of their employment,
to reproduce no more that one copy or phonorecord of a work, except as provided
in subsections (b) and (c), or to distribute such copy or phonorecord, under
the conditions specified by this section, if -
1. the reproduction or distribution
is made without any purpose of direct or indirect commercial advantage; [italics
mine]
2. the collections of the library
or archives are
a. open to the public, or
b. available not only to researchers
affiliated with the library or archives or with the institution of which
it is part, but also to other persons doing research in a specialized field;
and
3. the reproduction or distribution of the work includes a
notice of copyright that appears on the copy or phonorecord that is reproduced
under the provisions of this section, or includes a legend stating that the
work may be protected by copyright if no such notice can be found on the
copy or phonorecord that is reproduced under the provisions of this section. (U.S.
Code Section 106)
http://www.copyright.gov/circs/circ01.pdf
The issue of whether a for-profit library is
open to the public or to scholars has another side. Participating in
Interlibrary Loan services opens up the library to the public by phone, fax,
Internet and mail from scholars or another library needing documents.
Even if a special library is primarily an internally operated information
place in a profit-oriented company, where stacks are not open, the library
can still qualify under Section 108 by offering document finding services
and ILL. When there is no user physically present at the library, it is even
more important for the copies made to be labeled with the copyright warning.
The receiving individual will not touch or see the copying machine or fax
machine where the copyright warning might be posted. The recipient
still needs to be advised of the copyright status of the information provided
and know what the law prohibits.
The non-profit and for-profit library must, according to library exemption
#1 above limit any copying to non-profit situations where there is no “purpose
of direct or indirect commercial advantage.” Merely charging a patron to
recover the costs of locating an article (his or her time) and photocopying
(paper, toner, costs of renting and maintaining the copying equipment) does
not constitute commercial gain to the library as long as the cost to the
user is fair.
In developing the Copyright Law, the House and the Senate wrote reports
that expressed some divergence and then a Conference Report made the final
report when the law was enacted. The House Report leading up to Section 108
focused on immediate motivation rather than long-term profit motive.
On the other hand, the Senate Report on Section 108 was “intended to preclude
a library in a profit-making organization from providing photocopies of copyrighted
materials to employees engaged in furtherance of the organization’s commercial
enterprise, unless such copying qualifies as a fair use, or the organization
has obtained the necessary copyright licenses.”
The Conference Report
compromised by saying the “isolated, spontaneous” copies or “participation
by such a library or archive [in a for-profit organization without any commercial
motivation] in interlibrary arrangements, would come within the scope of
section 108.”
http://www.copyright.gov/circs/circ01.pdf
Rephrasing Section 108 (a), the Library Exemption
• May only be used at the request of a user.
• Only one copy of an article from a periodical or part
of a collected work per person may be photocopied.
• The copy becomes the property of the user, not part
of the library’s collection.
• The library should not know of any use of the copy
by the patron other than fair use.
• The copy should have a notice of copyright if it is
a visible work.(© or word copyright
+ author + yr. of publication)
In addition, the library must post a copyright warning in the place where
photocopies are made and on the order form. This is the wording of
the copyright notice: (Minow and Lipinski 2003,64
)
Copyright Warning Notice:
Notice Warning Concerning Copyright Restrictions
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 other 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.
37 C.F.R. sec.201.14 (b).
Mary Minow and Tomas A.
Lipinski explain in The Library’s Legal Answer Book that librarians
have several situations where reproducing is allowed: (Minow and Lipinski
2003, 41-42)
• For reproduction of unpublished works for “preservation
and security” for the library
• For replacement of published works (that are damaged,
deteriorating, lost, stolen, or in an obsolete format) for the library
• For reproduction for a patron of a serial or less than
whole part of a work
• For reproduction for a patron of an entire or substantial
portion of a work
Section 108 does not give protection to the staff member for copying for
his own personal reasons, but only to the employee acting within the scope
of his job to help a patron and, if the copying meets fair use standards.
Under 108 (d) a library must first meet the qualifying library distinction
to be covered by the library exemption. This appears to place the For-profit
library in a difficult position.
Many guidelines have been written to assist librarians in making the distinction
between the nature of their library and the use of the photocopy made from
a copyrighted item. Remember that guidelines are suggestions, not court
decision or a code of law to follow scrupulously. Guidelines do not
carry the weight of legal precedence in a court of law. There are several
guidelines that have been promulgated by library associations and by individuals.
6. Guidelines for For-Profit Libraries
6. a. Robert Goddard’s Guidelines for Copyright
Compliance -
In 1986, after the 1976 Copyright Law revision, Robert W. Goddard published
a list of nine rules for corporate librarians to follow when making photocopies
of copyrighted materials:
1. Don’t reproduce systematically any copyrighted item
or make multiple copies for wide distribution.
2. Don’t copy commercially produced performance materials
of any kind without permission.
3. Try to locate the author or distributor of a copyrighted
item prior to copying it.
4. Don't copy works and publications that are intended
to be consumable (workbooks, tests, etc.)
5. Don’t copy anything if it appears that this copying
will reduce the market value to the author or copyright owner.
6. Don’t copy an item to avoid its purchase.
7. Make sure that all copies of a copyrighted item include
notice of copyright.
8. Don’t reproduce any copyrighted item if there is a
direct or indirect commercial advantage to be gained from the copies.
9. Don’t request multiple copies of published articles
from your corporate library or reproduction center.
Goddard cites the four factors to be considered according to Section 107
of the Copyright Revision Act of 1976 when determining fair use but he adds
a fifth - "good faith - [which] is not even mentioned in the Copyright Act,
but it may be the most important of all." (Ralph 1994, 2001, 9)
This is apparently not the Robert Goddard of NASA fame. Goddard’s guidelines,
which are quoted in a document by Randy D. Ralph that details the historical
relevance of the Texaco suit to the copyright and fair use discussion, make
good sense to follow for a for-profit library. The guidelines were written
from a common sense point of view.
6. b. AALL Electronic Fair Use Committee (1997 Guidelines, revised 2001)
The American Association of Law Libraries published a more recent document
from its Fair Use Committee with copyright recommendations to a variety of
law libraries, including government libraries (court, county and agency libraries),
bar association and other membership libraries and for-profit law libraries.
Laura Gasaway was the chair of the Electronic Fair Use Committee which produced
the 1997 guidelines and James Heller was the 2000-01 Copyright Committee
chair. Although the Guidelines should be viewed in their entirety,
with the preamble, there are applicable recommendations for the corporate
for-profit library that is not law related. They include updates to
Section 108 since the Digital Millenium Copyright Act (DMCA).
http://www.aallnet.org/about/policy_fair.asp
For-Profit Library Copying for External Users
In Section 2.1 of the AALL Electronic Fair Use Committee Guidelines the
for-profit library copying for external users,
“Libraries in the for-profit sector may provide a single copy of an article,
a chapter, or a portion of another copyrighted work to clients to support
work done for the client. The copy provided may be either a photocopy
or an electronic copy, provided it includes the appropriate notice” of
copyright or a legend such as “This work may be protected by copyright; further
reproduction and distribution in violation of United States copyright law
is prohibited.”(AALL 2001) (Guideline 1.4.1 Notice of Copyright under Section
108)
http://www.aallnet.org/about/policy_fair.asp
For-Profit Library Copying for Internal Users
Law firms and other law libraries in the for-profit sector should be aware
that the Texaco decision may apply to them. The AALL Model law Firm
Copyright Policy cautions against copying and distributing articles for later
(rather than current) use. Libraries are also cautioned against systematically
routing journals with knowledge or reason to believe that recipients will
copy the articles for later (rather than current) use and creating personal
libraries. Libraries may copy tables of contents, but should not solicit
requests for copies of articles that would constitute systematic copying. (AALL
2001) (Guideline 2.1 Copying from the Library's own Collection)
http://a;;net.org/about/model-law.asp
Any attempt to circumvent purchase of a periodical or journal subscription
by a for-profit library may meet with the same result as the Texaco decision.
Continuing with the AALL Model Law Firm Copyright Policy, AALL discusses
the source of copies
Sources of these copies
Under this policy, sources of copies should
be the lawfully obtained original copyrighted work, whether found in the
library, obtained through inter-library loan from a lending library or retrieved
from an online source or document delivery service that receives permission
from or pays royalties to the copyright owner. (
AALL 2001)
http://a;;net.org/about/model-law.asp
Format of these copies
Any for-profit firm that follows the advice
and warnings of the AALL would have a better chance of abiding by copyright
provisions. Here are AALL’s format suggestions:
• to satisfy a user’s request, a library may make a photocopy
or other printed copy of a printed work such as an article, a chapter or
portions of other copyrighted works. (2.1.1 AALL Guidelines Printed Copies
of Printed Works)
http://www.aallnet.org/about/policy_fair.asp
• to satisfy a user’s request a library may scan an article
from a periodical issue, a chapter, or portions of other copyrighted works
and provide an electronic copy to the user in lieu of a photocopy.
The library may not retain the scanned image. A copy may be faxed or
otherwise transmitted electronically to the user, but the library should
destroy any temporary copy made incidental to the transmission. In
other words, an incidental copy made to facilitate transmission is a fair
use, as long as that copy is not retained. (2.1.2 AALL Guidelines)
http://a;;net.org/about/model-law.asp
• unless prohibited or otherwise restricted by the terms
of a valid license agreement, a library may print a copy of an article, a
chapter, or portions of other copyrighted digital works at the request of
a user. (2.1.3 AALL Guidelines)
http://a;;net.org/about/model-law.asp
• unless prohibited or otherwise restricted by the terms
of a valid license agreement, a library may download a copy of an article
or portions of other copyrighted digital works at the request of a user and
forward it electronically to the user.(2.1.4 AALL Guidelines)
http://a;;net.org/about/model-law.asp
In all the above situations, law libraries and other for-profit libraries
may only charge the user a fair and reasonable price for procuring, copying,
and transmitting the requested items. In all cases, the library may
not retain copies of the items after the requesting user has confirmed receipt
of the request.
6. c. CONTU Guidelines “suggestion of
5:”
The National Commission on New Technological uses of Copyrighted works,
nicknamed CONTU, offered guidelines which are also not considered law, but
which provide guidance to libraries, most often in the interlibrary loan
(ILL) photocopying situation. The guidelines deal with subsection 108 (g)
(2) in attempt to suggest limits for what the law intended when it said interlibrary
arrangements are permitted “that do not have, as their purpose or effect,
that the library or archives receiving such copies or phonorecords for distribution
does so in such aggregated quantities as to substitute for a subscription
to or purchase of such work.”
• The “suggestion of five” allows libraries to copy five
articles from the most recent five years of a single title of a periodical
or other collected work without paying a royalty.
• Articles beyond five years old may be copied without
paying royalty fees.
• The requesting library maintains the record to keep
track of how many requests are made for copies or phonorecords.
• The length of time recommended shall be the end of
the calendar year in which the request was made. (U.S. Copyright Office,
Circular 21, (“The Reproduction of Copyrighted Works by Educators and Librarians”)
http://www.loc.gov/copyright
Although the “suggestion of five” is only a guideline, it makes sense that
anything above 5 requested articles from the same periodical or material
may signal that patrons would like access and the library should subscribe
to the periodical or purchase the item. Anything
more than the “suggestion of five” may diminish the likelihood of “fair use”
and also bring attention to possible copyright infringement, especially in
a library that has a record of such excesses.
AALL agrees that CONTU guidelines should be followed and that print or
electronic format for response to ILL user request. AALL reminds the
law library that neither the borrowing nor the requesting library has permission
to keep either the print or the digital image. The copy goes to the
user who requested it.
http://www.aallnet.org/about/policy-fair.asp
[CONTU] Conference Report: Discussion of Libraries and Archives in Profit-Making
Institutions
CONTU also reported another interpretation of the scope of Section 108
(a) involving the term “indirect commercial advantage” …in the case of libraries
or archival collections within industrial, profit-making, or proprietary
institutions.
“As long as the library meets the criteria in section 108 (a) and the other
requirements of the section, including the prohibitions against multiple
and systematic copying in subsection (g), the conferees consider that the
isolated, spontaneous making of single photocopies by a library of archives
in a for-profit organization without any commercial motivation, or participation
by such a library or archives in interlibrary arrangements, would come within
the scope of section 108.” U.S. Copyright Office, Circular 21 (“The Reproduction
of Copyrighted Works by Educators and Librarians”)
http://www.loc.gov/copyright
This concern with immediate motivation versus long-term commercial motivation
was present in earlier versions of the Copyright Law presented by the House
when Congress was preparing to pass Section 8.
7. The Digital Millenium Copyright Act
(DMCA)
When the AALL updated its guidelines on Fair Use of Copyrighted Works by
Law Librarians, The Digital Millenium Copyright Act had already been signed
into law by President Clinton (on
Here are nine changes made by the DMCA:
1. Limits copyright infringement liability for Internet
Service Providers (ISPs) for the mere transmission of information as a conduit
or transient host, provided no knowledge of financial gain is present,
2. Establishes guidelines for the removal by ISPs of
material from the Internet that appears to be an infringement upon the knowledge
by the ISP,
3. Limits liability against institutions
when faculty members use educational facilities in order to publish materials
electronically.
4. Makes criminal the circumvention of anti-piracy devices,
also known as :little black boxes,”
5. Outlaws code-cracking devices but not ones being employed
for research, testing, law enforcement activities and related legal means
,
6. States that the fair use doctrine remains a viable
defense in copyright infringement matters, but does not go into much detail
,
7. Updates the library exemption for facilities to take
advantage of digital technology while engaging in activities similar to those
for non-digital methodologies,
8. Directs The Register of Copyright
to consult with educators, copyright owners and libraries, and to submit
recommendations for the promotion of distance education through digital means,
and
9. Implements two international
treaties regarding the respecting of copyright laws. (Diotalevi
2003, 10)
http://southernlibrarianship.icaap.org/content/v04n01/Diotalevi-r01.htm
DMCA is a huge document of 150 pages, divided into 5 titles. Except
for Title I, the treaties, Titles II – V took effect immediately. Section
1201 (Anti-Circumvention Provision) would activate in 2000 and was one of
the most controversial parts of DMCA. " The effective date of the
anti-circumvention provision was delayed until October 23, 2000, to allow
time for the Librarian of Congress to issue rules that would allow certain
users to access certain "classes of works" if they needed to circumvent in
order to make "non-infringing" uses of the works."
http://www.ala.org/ala/washoff/WOissues/copyrightb/dmca/dmcasection1201.htm#2000
In October, 2000, after two years of deliberations with members
of the Shared Legal Capability (representatives of ALA, AALL, ARL, MLA,
and SLA) the Librarian of Congress announced two narrow classes of exempted
works.
http://arl.cni.org/info/frn/copy/timeline.html
Exempt from the prohibition on circumvention of technological protection
measures until
1. compilations of lists of
Web sites blocked by filtering software applications and
2. literary works, including
computer programs and databases, protected by access control mechanisms that
fail to permit access because of malfunctions, damage, or obsolescence. (ARL
Timeline 2002)
http://arl.cni.org/info/frn/copy/timeline.html
The Librarian of Congress stressed the need to have Congress go back and
reinvestigate issues of fair use of protected material by library users.
Both the Assistant Secretary for Commerce, Gregory Rohde and the Librarian
were concerned that some DMCA provisions are interfering with access to information
needed publicly for scholarship, research, comment, and criticism, news
reporting, life long learning. (ARL Timeline 2002)
http://arl.cni.org/info/frn/copy/timeline.html
For the whole story including the updated Rulemaking on Anticircumvention
which extends the DMCA legislation until
DMCA adds Criminal Penalties for Copyright Damages
While copyright infringement has been a civil
charge in the past, with violators paying hefty fines, under the DMCA, libraries
should use caution and seek legal advice on copyright law more than ever.
Federal criminal penalties, added by DMCA, would be much more severe.
Both librarians and educators should consider the risks. Since the
passage of the Digital Theft Deterrence and Copyright Damages Improvement
Act of 1999, the minimum damages for copyright infringement have increased
considerably. (H.R. 3456) The minimum went from $500 to $750. The maximum
penalty increased from $20,000 to $30,000. Willful infringement increased
from $100,000 to $150,000. The cost of not asking the right questions
about copyright liability is greater than ever. Dr. Robert N. Diotalevi,
Esq., LL.M. Program Coordinator and Assistant Professor of Law at
1. Does copyright law protect this work?
2. Am I trying to use it and copy it for myself as my
own work?
3. Does any exception to the law apply (e.g., fair use)?
(Diotalevi 2003, 9)
http://southernlibrarianship.icaap.org/content/v04n01/Diotalevi-r01.htm
If in doubt, consult the copyright Office or pay the royalty fee to ask
permission (in writing) from the copyright holder. Most likely this is a
for-profit library’s safest option.
8.
Q. How do for-profit special libraries get access to materials they do
not own, when the material is commercially valuable, difficult to find,
the materials are protected by copyright laws, AND when the use is not Fair
Use?
A. One way is to purchase permission through a contract with a copyright
clearinghouse, like
The slogan of this company is “CCC really does take the pain out
of the permission process, making compliance easy.”
http://www.copyright.com/
Founded in 1978 at
the suggestion of the U.S. Congress, CCC is a member of the International
Federation of Reproduction Rights Organizations (IFRRO). The company
has bilateral agreements with RRO in 13 countries, under which it repatriates
fees for overseas use of US works. As of
9. Document Delivery Service (DDS
)
Another way to access information that is copyrighted is to go through
a Document Delivery Service. A helpful source of information about
Document Delivery is DocDel.net available at
http://www.docdel.net/Copyright_Sites.html
where Web sites with tips on using document delivery are available. The Association of American Publishers copyright site provides links and information at http://www.ppublishers.org/home/abouta/copy
Jean Shipman, a librarian at
Document Delivery Example
Ingenta is one such Document Delivery Service that supplies 27,000+
publications, 6,000+ full-text online journals and 260+ academic and professional
publishers. The list of publications competes favorably with the journal
and database services at a large university library. In addition to
the service for a library’s patrons, free registration at ingenta provides
free statistical information for the library administrator on usage data
about their patrons’ information seeking behavior, e-mailed upon request.
The service is available to corporate libraries, research libraries, academic
libraries and consortia. More than 14, 000 libraries use ingenta to
assist them in accessing online publications. Distribution is either electronic
in PDF or HTML format or by Fax or Ariel (for articles not available electronically)
within 48 hours unless the order is initiated during a weekend or holiday.
Ingenta tells the publisher’s name, whether the DDS with that publisher is
free to print subscribers, whether there is a publisher royalty fee and what
it is, and notes. See http://www.ingenta.com/
Ingenta also is listed as a service that handles rights of some authors
through the Publication Rights Clearinghouse. For a fee “ingenta” can distribute
an article by a freelance writer, who retains copyright protection when he
submits a writing to a periodical or newspaper. The Publication Rights
Clearinghouse is described as a collective licensing agency that represents
some writer’s groups, such as The National Writer’s Union, the Canadian
Science Writer’s Association, and the Periodical Writer’s Association of
Canada, also the Society of Children’s Book Writer’s and Illustrators. These
groups may choose whether to make rights available to commercial interests.
http://www.ingenta.com/
10. Getting Permission
Getting permission means paying royalties for license to use someone else’s
creative works. The Library of Congress Copyright Office is an excellent
place to start. A copy of the work may have been submitted for registration
purposes. The ownership may have changed since that time, but it is
safe to start there. For a fee, the Copyright Office can conduct a
search for the ownership information sought. Then one must contact
the owner, seek permission, and pay the amount requested. In some libraries
where specific collections have been donated to the library, the ownership
may rest with the holding library, as at a museum library. Consider
asking there also.
On the
In For-profit situations, when fair use is not an exemption available and the work needed is not licensed for your online use, there are possibilities for paying for permission. The following chart can help decide where to go to seek and pay for that permission.
10. Collective Rights
Organizations
For-profit libraries or special libraries seeking permission should inquire
at whichever rights organization serves the type of material to be used or
copied. Fees vary considerably.
Table 2. Where to seek copyright permission
Type of material Where to get permission Length of time Other notes
Part of a book or journal
article Copyright Clearance Center Within
24-36 hours Except at beginning of terms when service
is busy
International collectives for multimedia VERDI-
Very Extensive Rights Data Information Finland,
France, Germany, Ireland, Netherlands and Spain
Digital versions of existing print works in repertoire Copyright
Licensing Agency (CLA) Higher education
and pharmaceuticals
Image archives Academic Image Cooperative
Image archives Saskia/Luna Imaging Project
Architecture slides of classical sites Lantern slides
of Classical Antiquity: In cooperation
with Bryn Mawr College
Architectural images Soc. of Architectural
Hist. Image Exchange
Images Media Image Resource Alliance
Images Artists Rights Foundation
Photography/in media American Soc. Of Media Photographers
Photography Prof. photography
organizations
Periodical articles (journal or newspaper) ingenta
24-48 hours a document delivery service which handles
rights for Publication Rights Clearinghouse
Music Performance ASCAP, BMI, SESAC
To record/distribute music already recorded Harry Fox
Agency, Inc. Also to synchronize music
+ visual images
Play rights Samuel French, Inc.
Rights to a play for young people
News Archives See archives on WWW 24/7
Movie Rights Motion Picture Licensing Corp.
Movie Rights Swank Motion Pictures, Inc.
Public performances not in theatrical market
Liability-free Movies Movie Licensing USA
Public libraries and schools
Wake Forest University
Links to publisher, find in the Literary Marketplace (books), or Ulrich’s
International Periodicals (journals).
Owner, author, publisher and © Copyright owner information on
literary authors, authors in and outside the Humanities, Politicians and
public figures in English, WATCH Writers, Artists, and
their Copyright Holders Univ. of Texas
Austin’s Harry Ransom Humanities Research Center in conjunction with the
University of Reading (UK) available at http://tyler.hrc.utexas.edu/
© owner info The Copyright Office
Online searching of registration records for a fee
Most of the above information is available in greater detail at
http://www.utsystem.edu/ogc/intellectualproperty/permissn.htm
This site was posted by
Georgia Harper, attorney for the Intellectual Property Office of the Office
of General Counsel, for the
(Harper 2004, 6) http://www.utsystem.edu/ogc/intellectualproperty/permissn.htm
The author says this
is a theoretical assumption, not tested in the courts. But it is possible
to lower the risk by doing a thorough search for the copyright owner, from
whom you seek permission.
When the holder of copyright is found, ask for permission in writing, stating
what and how the materials will be used and any formats that might be used.
If permission is oral, at least document that permission was received, and
consider sending a letter to the owner for his/her
initials and approval so that the letter reflects the agreement reached.
CONCLUSION
This handbook is intended for the librarian
who may be moving to a for-profit library setting, possibly from a non-profit
setting. The “fair use” test must be applied to any situation where
copyright questions of liability and infringement are pertinent. If
“fair use” is not probable, and the library exemption is doubtful or not
applicable, then permission should be sought from the copyright owner or
a named representative. The list of Collective Rights Organizations above
is not complete. But it offers a head start in the permission process.
Without a Fair Use or library exemption, photocopying multiple copies from
a book, a database, a periodical, or duplicating any creative work in a
tangible form, and distributing, storing, or transmitting by E-mail, Fax,
mail or scanning should be avoided in the commercial library. When
profit is the immediate motivation, a for-profit library should pay for
permission to use someone else’s work, either to the copyright owner, a
document delivery service or a Collective Rights Organization, unless copyright
does not apply or the information is in the public domain. A commercial
library can then assess a user fee for this service that would include royalty
fees and costs of procurement. The majority court in the Michigan Document
Services Case (MDS) argued that “courts seem increasingly willing to let
the fourth factor of the fair use analysis trump all the other factors so
that where there is a market for permissions, ‘fair use is negated.’” (Harper
2004, 14)
http://www.utsystem.edu/ogc/intellectualproperty/copypol2.htm
A lawyer’s opinion, which might not agree with a judge’s opinion, should
be sought for interpretation of Fair Use, when in doubt. Timely provision
of information in the corporate setting means buying licenses for databases
that the corporate library can use to expedite single document delivery to
a single user who requests it. Ethical behavior means reading the fine print
in licenses, confirming the meaning of those license restrictions with reputable
sources, and conforming to the terms. While the library professional worries
about copyright permission, other information seekers in the company may
have already printed out multiple copies from the Internet for everyone in
the boardroom. Learning to determine Fair Use may get easier but it is never
certain. The library professional is probably the only one in the firm considering
the risk of copyright liability. This makes the job of the corporate
librarian more difficult than one would imagine. Non-profit librarians
in academic, school and public libraries have a great many more safety nets
to rely on than for-profit librarians. All library professionals have
many information tools at their fingertips, but making an ethical decision,
based on correct information, means more than speedy delivery in the long
run.
Reference List
American Association of Law Libraries. AALL
Guidelines on the Fair Use of Copyrighted Works by Law Libraries, Revised
ed. 2001.
http://aallnet.org/about/policy_fair.asp
; Internet; accessed
American Geophysical
Association of Research Libraries. 2002. Timeline:
A History of Copyright in the
Copyright Clearance Center, Inc. 2004. Web page.
http://www.copyright.com/About/default.asp
; Internet; accessed
Diotalevi, Robert N. 2003. An Education in ©opyright Law: A Primer
for Cyberspace. Electronic Journal of Academic and
Special Librarianship. 1-18.
http://southernlibrarianship.icaap.org/content/v04n01/Diotalevi_r01.htm
; Internet; accessed
Federal Relations E-News. December 2003-January
2004. Association of Research Libraries.
http://arl.cni.org/info/frn/enews.html
; Internet; accessed
Gasaway, Laura N. 1999. Copyright Considerations
for Fee-Based Document Delivery Services.
http://www.unc.edu/unclng/fee-based.htm
; Internet; accessed
Goddard, Robert W.1986. The Crime of Copying: Copyright Law and the Use of Photocopy Equipment. Management World 15 July-August 1986 20-22.
Harper, Georgia. 2004. Getting Permission.
http://www.utsystem.edu/ogc/intellectualproperty/permissn.htm
; Internet; accessed
Harry Ransom Humanities Research Center.University
of
Heller, James S. 2000. Where have you gone, Fair Use:
Document Delivery in the For-Profit Sector.
http://www.unc.edu/~unclng/copy-corner17.htm
Internet; accessed14 April 2004.
Ingenta. 2004. Web page. About ingenta
for librarians.
http://www.ingenta.com/isis/generalJsp/ingenta
; Internet; accessed
Isenberg, Doug. 2000. The Basics of Copyright Law.
http://www.gigalaw.com
; Internet; accessed
Klinefelter, Anne. 2000. States Begin to Adopt UCITA – Model Legislation for Licensing. http://www.unc.edu/~unclng/copy-corner22.htm ; Internet; accessed 15 April 2004.
Libraries, Museums, and Archives; Legal Issues
and Ethical Challenges in the New Information Era, edited by Tomas A.
Lipinski. 2002.
Legal Information Institute (lii). 2002. Copyright: an overview.
Cornell University, School of Law.
http://www.law.cornell.edu/topics/copyright.html
.; Internet; accessed
Legal Information Institute (lii). 2002. US Code Collection.
Title 17 > Chapter 1 > Sec. 108.
Cornell University.
http://www4.law.cornell.edu/cgi-bin/
; Internet; accessed 17 April 2004.
Library of Congress. U.S. Copyright Office. 1998. Circular 21. Reproduction of Copyrighted Works by Educators and Librarians. http://www.loc.gov/copyright ; Internet; accessed 24 April 2004.
Martins, Cristine and Sophia Martins. 2002. Electronic Copyright in a Shrinking World. Computers in Libraries. 22:5 May 2002; available from EBSCOhost. Business Source Premier. accessed 13 April 2004.
Minow, Mary and Tomas A. Lipinski.
2003. The Library’s Legal Answer Book.
Phelan, Marilyn. 2000. Notes on Copyright Protection and Liability
in a Digital Environment. Special Libraries Association, Legal Division
Quarterly Summer 2000 7:1
http://www.slalegal.org/Newsletter/v7no1_copyright.htm
. Internet; accessed
Ralph, Randy D. 1994, updated 2001. Copyright and Fair use: The American Geophysical Union vs. Texaco Corporation. http://www.netstrider.com/documents/copyright/ . Internet; accessed 23 April 2004.
Snow, Maryly. Digital Images and Fair use Web Sites.
http://www.utsystem.edu/ogc/intellectualproperty/portland.htm
. Internet; accessed
Sutton, David C. 1996. Watch Makers: seeking out copyright holders. (Reprint of article published in The Author. Journal of the Society of Authors, UK. Autumn/Winter 145-146.) Harry Ransom Humanities Research Center at the University of Texas at Austin. http://tyler.hrc.utexas.edu/article.cfm . Internet; accessed 25 April 2004.
Internet; accessed 21 April 2004.
Wells, GladysAnn. (2003). “Libraries and the 21st century: what forms of information distribution will survive?” Journal of Internet Law, Jan 2003 v6 i7 p12. Infotrac (LegalTrac); accessed 24 April 2004.
“Who owns what?” 2000. University of Texas.
Office of the General Counsel.
http://www.utsystem.edu/ogc/intellectualproperty/whowns.htm
.; Internet; accessed
Wiant, Sarah K. Amicus curiae. http://www.arl.org/copyright/texaco/settlement ; Internet; accessed 25 April 2004.
S. REP. NO. 94-1476 (1976), reprinted
in U.S. Copyright Office, Circular 21: REPRODUCTION OF COPYRIGHTED WORK BY
TEACHERS AND LIBRARIANS 8 (1993)
H.R. CONF. REP. NO. 94-1733 (1976), Reprinted in U.S. Copyright Office, Circular 21: REPRODUCTION OF COPYRIGHTED WORK BY EDUCATORS AND LIBRARIANS 8 (1993)