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Interlibrary Loan, E-Reserves, Replacements: When Can My Library Make Legal Copies? Mary Minow, J.D., A.M.L.S. LibraryLaw.com Infopeople.

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Presentation on theme: "Interlibrary Loan, E-Reserves, Replacements: When Can My Library Make Legal Copies? Mary Minow, J.D., A.M.L.S. LibraryLaw.com Infopeople."— Presentation transcript:

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

2 HorizonLive Chat Area

3 Questions and Comments 1.Type your questions into the Send a Message Box 2.What you type is displayed in the Chat Box for all to see

4 Getting Help 1.For technical problems, click on IM Button 2.Send a Private Message to HorizonHelp

5 Legal Disclaimer Legal information Not legal advice!

6 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

7 Is It OK to Digitize Your Special Collection? Public Domain Fair Use Get Permission/License If no Sec. 108 Librarie s If no Simple Flow Chart Photocopies or Scans e.g. Copyright Clearance Center

8 www.infopeople.org/training/webcasts/ CLICK ARCHIVED Public Domain Fair Use Get Permission/License Sec. 108 Librarie s Archived Webcasts Explain Public Domain, Fair Use

9 F acts R ecipes I deas D edicated works G overnment works (U.S.) E xpired works Public Domain: In the FRIDGE

10 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 Libraries Should Understand Fair Use

11 Criticism, comment, teaching (including multiple copies for classroom use), scholarship and research Courts consider P urpose N ature of work A mount M arket harm Fair Use PNAM Factors 17 U.S.C. Sec. 107

12 Fair Use

13 “Library” Open to public 17 U.S.C. Sec. 108 (a)(2) Sec. 108 Libraries Specialized researchers nonaffiliated with institution OR

14 No copies for commercial advantage and Include notice of copyright on copies 17 U.S.C. Sec. 108 (a)(1),(3) I am a LIBRARY Sec. 108 Libraries 108

15 “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)

16 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 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

17 1. Interlibrary Loan Desk Forms: Required Wording 37 C.F.R. 201.14 18 point type Prominent display Durable paper

18 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

19 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

20 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

21 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”

22 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)

23 Sheet Music Graphic Audiovisual Works May NOT Copy for ILL 17 U.S.C. Section 108(i)

24 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

25 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)

26 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?

27 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)

28 Default: COPYRIGHT LAW Allows ILL Starting Point: Sec. 108 Allows ILL www.copyright.gov/title17/

29 Librarians should not ASK FOR ILL It is already ours by law Librarians should not sign contracts that prohibit ILL Yet Contracts Override Copyright Law

30 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 If License Silent.. www.copyright.gov/title17/

31 “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

32 “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 though not too meaningful since Lender Library not bound by Rule of Five

33 images.library.yale.edu/liblicense/ New Project: Standard vendor ILL license clauses at Liblicense project Do you know what your licenses say?

34 Standard Elsevier licenses allow copying for interlibrary loan if printed and faxed

35 www.library.yale.edu/~llicense/index.shtml

36 Is It OK to Digitize Your Special Collection? Public Domain Fair Use Get Permission/License If no Sec. 108 Librarie s 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)

37 2. Replacement and Preservation Copies Make 3 Copies MAY copy anything Music, AV, Graphics 17 U.S.C. Sec. 108 (b) I am a LIBRARY 108

38 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)

39 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)

40 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

41 Is It OK to Digitize Your Special Collection? Public Domain Fair Use Get Permission/License 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. 108 Librarie s

42 Is It OK to Digitize Your Special Collection? Public Domain Fair Use Get Permission/License If no Sec. 108 Librarie s If no 3. E-Reserves e.g. Copyright Clearance Center

43 F acts Links are addresses FACTUAL License agreements do not normally forbid Still accessible only by authorized users Becomes technical issue May Post Links to database articles

44 Not too helpful Libraries can make individual copies on request by user 17 U.S.C. Sec. 108 (a)(1),(3) I am a LIBRARY Sec. 108 Libraries 108

45 Criticism, comment, teaching (including multiple copies for classroom use), scholarship and research Courts consider P urpose N ature of work A mount M arket harm Fair Use PNAM Factors 17 U.S.C. Sec. 107

46 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 FAIR USE www.arl.org/access/eres/erespolicies.shtml Paint ourselves into corner – if we always pay permissions, we lose FAIR USE

47 Library Assns Fair Use E-Reserves

48 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

49 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 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.

50 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”

51 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

52 Customs, professional norms factor heavily in shrinking FAIR USE Customs and FAIR USE Fair Use

53 E-Reserves –Brevity, spontaneity Coursepacks –Copy shops lose Two court decisions Many 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)

54 Public Domain Fair Use Get Permission/License If no Sec. 108 Librarie s If no If You Don’t Think It’s Fair Use

55 Get Permission Copyright Clearance Center www.copyright.com/ 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

56 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

57 www.store.cornell.edu/text/cpub/publist.html Bonus Slide: Cornell Shares Publishers Fees 2002 Publisher views on Fair Use e.g. Bantam Doubleday 10% Publisher Charges Beyond Fair Use

58 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

59 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

60 Summary: Flow Chart 1.Interlibrary Loan 2.Replacement and Preservation Copies 3.E-Reserves Public Domain Fair Use Get Permission/License Sec. 108 Librarie s

61 Summary: Flow Chart 1.Interlibrary Loan 2.Replacement and Preservation Copies 3.E-Reserves Public Domain Fair Use Get Permission/License Sec. 108 Librarie s LICENSES TRUMP COPYRIGHT LAW Read Carefully and Negotiate


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