My work Resource Sharing brought me to dip my toe in Copyright issues, which brought me to wade in a bit, which brought me to be pulled full force into the stream. While I would not consider myself particularly drawn to legal issues, I guess I do find a bit of delight in the intellectual stimulus of analyzing all the layers of legal, social, and practical issues that surface when we have to consider copyright issues in a real-world context.
This week, I’ve been teaching a workshop on ILL and Copyright with Stephanie Spires at Atlas Systems (developer of the ILLiad software). One of the questions that came up in the workshop was how to address copyright royalty payments when you offer document delivery (aka doc del, providing copying and/or scanning service of print periodical holdings for your patrons) services for your patrons. I didn’t have an answer off the top of my head and so ended writing a pretty lengthy discussion of the issue. I thought it made for a good blog post.
How are you handling your copyright for this kind of service?
Question: Handling Doc Del for patrons of library of materials owned by library
As always, I have to preface these comments with the disclaimer that, while I might be knowledgeable of copyright matters, I am by no means an expert nor a lawyer. That said, here are a couple of thoughts regarding the question of how to handle what permissions might be required when providing a document delivery service of your print holdings to patrons.
First of all the “Rule of Five” from the CONTU guidelines is specifically addressed to the Interlibrary Loan environment with the purpose to deal with the “aggregate” of copying that might arise from an institution’s ILL practice that is allowed by Section 108–the exception to make copies on behalf of patrons. Consequently, this aspect of the CONTU guidelines cannot be applied to the Document Delivery question.
Typically, I hear of 2 types of document delivery services–one for distance education students and one for “typical” patrons who are residing or working on campus. I’ll address each one separately.
Distance Education
In Chapter Four “Machine Reproduction–Photocopying,” Section “Provisions of the 1976 Copyright Act Affecting Photocopying” of the CONTU sets out the fact that copying for teaching/instructional purposes is covered under fair use in Section 107.
“Copying for teaching purposes is dealt with, not by specific statutory exemptions, but rather by a list of permissible practices held to be fair use under section 107. This is accomplished by means of the so-called educational guidelines, the “Agreement on Guidelines for Classroom Copying in Not-for-Profit Educational Institutions,” which were negotiated by educational, author, and publisher organizations and accepted by the congressional committees.214“
Pasted from <http://digital-law-online.info/CONTU/contu23.html>
The specific legislation states that Fair Use is invoked
“for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research . . . .”
Pasted from <http://www.copyright.gov/title17/92chap1.html#108>
It seems to me that the transfer of educational/instructional material through document delivery for distance education students has a stronger argument for fair use in that it is a requirement for that instructional modality. To reiterate what I said in the workshop, I don’t think the type of use that an on-campus user would have (going to the shelf, pulling a bound journal and making a copy of an article) should be considered different simply because a library staff worker is doing the copying on his/her behalf. Alas, that is my opinion. The problem here lies in the fact that the Fair Use claim for copies in the classroom has not been tested in court. (The current pending lawsuit against Georgia State for its reserves policies may have ripple effects on this question.)
For Local Patrons
The issue of providing a service to our local patrons might come under closer scrutiny as this type of service moves closer to “systematic distribution. ” Here is another excerpt from the Introduction to Chapter 4 of the CONTU guidelines:
All of the rights to make copies that are enumerated in section 108 are limited by the prohibition in section 108(g) against “the related or concerted reproduction . . . of multiple copies . . . of the same material” and the “systematic reproduction or distribution” of periodical articles or other small portions of copyrighted works. This prohibition against systematic reproduction and distribution, however, is in turn limited by the proviso in section 108(g) (2), which states “[t]hat nothing in this clause prevents a library or archives from participating in interlibrary arrangements 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 aggregate quantities as to substitute for a subscription to or purchase of such work.” The aggregate quantities that constitute a substitution for a subscription or purchase of a work are defined in the CONTU guidelines, which are described in the next section.
Pasted from <http://digital-law-online.info/CONTU/contu23.html>
The “aggregate quantities are defined in the guidelines for ILL, but not for activity such as Doc Del. (The CONTU documents do include an interesting survey of copying for internal use and the economic impact of that use but, as far as I can tell, no recommendations were included with the study. (http://digital-law-online.info/CONTU/contu25.html and http://digital-law-online.info/CONTU/contu27.html) While this service might look a lot like systematic reproduction and distribution, it would not “constitute a substitute for a subscription or purchase.” There lies the tension.
So to summarize, your institution can claim either the Sect. 108 exemption or the Fair Use one for your Doc Del activity. If you chose the Section 108 option, the “Rule of Two” would apply as would other conditions (see text of exception below.) This is the “safer” route but would also be more costly.
I believe there are good arguments to support claiming Fair Use for this activity (for either local or distance patrons); however, it is more “risky.” If you choose this route, I would recommend having a very well articulated policy that describes how the service meets all 4 factors of fair use. Additionally, I would recommend defining the point at which you believe the service becomes “systematic copying” at which time you would then make royalty payments.
Please feel free to offer your thoughts for discussion!
Additional resources
Section 108 (Copies on Behalf of Patrons)
(d) The rights of reproduction and distribution under this section apply to a copy, made from the collection of a library or archives where the user makes his or her request or from that of another library or archives, of no more than one article or other contribution to a copyrighted collection or periodical issue, or to a copy or phonorecord of a small part of any other copyrighted work, if —
(1) the copy or phonorecord becomes the property of the user, and the library or archives has had no notice that the copy or phonorecord would be used for any purpose other than private study, scholarship, or research; and
(2) the library or archives displays prominently, at the place where orders are accepted, and includes on its order form, a warning of copyright in accordance with requirements that the Register of Copyrights shall prescribe by regulation.
Pasted from <http://www.copyright.gov/title17/92chap1.html#108>