ILL & Copyright:
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13th Annual VIVA Interlibrary Loan Community Forum 15 July 2011 Sweet Briar College
Jessica Bowdoin Head, Interlibrary Loan, George Mason University (OCLC: VGM) In consultation with Claudia Holland, Copyright Officer, George Mason University
The information in this presentation is not legal advice. I am not a lawyer. I am not interpreting or analyzing elements of the law. You should discuss your copyright practices with your institution’s copyright officer and/or legal counsel to insure that your institution is copyright compliant. The presentation may include interpretations offered by others.
Federal law, Title 17—Copyrights (created by Copyright Act of 19 Oct. 1976, effective Jan. 1978) National Commission on New Technological Uses of Copyrighted Works (CONTU) issued its report on 31 July 1978 Copyright law does change, ie: Digital Millennium Copyright Act of 1998 amended Section 108
Allows libraries to purchase and lend copyrighted works* Ownership applies to the physical item, not the intellectual content* Does not apply to works licensed by contract*
*See Kristof, Cindy. “U.S. Copyright and Interlibrary Loan Practice.” Interlibrary Loan Practices Handbook (2011, 3rd ed.) 52.
1. Purpose of Use Personal; Educational; Nonprofit; Scholarship; Research; Commentary or Criticism
Commercial; For Profit
2. Nature of Work Fact; Published
Fiction; Highly Creative (art, music, novels, films, plays); Unpublished
3. Amount Used Small Amount
Large Amount; “Heart” of work
4. Effect on Potential Market Out of print/unavailable; Limited & restricted audience; User owns lawfully acquired copy; No similar product available from copyright holder
Competes with the market & may replace a sale; Avoids paying copyright royalties; Repeated & long-term use; Made widely accessible; Many copies made
http://copyright.cornell.edu/policies/docs/Fair_Use_Checklist.pdf
http://librarycopyright.net/fairuse/
Allows ILL departments to make, send and receive copies of works Allows libraries to make copies for individual patrons, other libraries or for preservation purposes Typically, does not apply to a musical work; a pictorial, graphic or sculptural work; or a motion picture or other audiovisual work There are conditions!!!
“Rule of 5” Requires including a copyright compliance statement on ILL copy request (CCG or CCL) Requires libraries to keep records of borrowing copy requests for current year + 3 full years
Usually means articles from periodical titles ◦ Up to 5 “recently published” articles from a periodical title within 1 calendar year ◦ “Recently published” published periodicals = within the past 5 years
Can mean article/chapter from non-periodical work ◦ Up to 5 copies of articles/chapters from non-periodical work within 1 calendar year ◦ During work’s entire copyright term
For Periodical Articles: The article was published within the last 5 years AND Your library does not have a current subscription to this title AND Your library has requested and received 4 or fewer copies from this title this calendar year AND You are requesting only 1 article from any issue per patron*
*condition of Section 108 of Copyright Law
For Book Chapters: The book is “in” copyright AND Your library does not own a copy AND Your library has requested and received 4 or fewer copies from this book this calendar year AND You are requesting only 1 chapter (or a small portion) from this book per patron*
*condition of Section 108 of Copyright Law
The periodical article was published more than 5 years ago OR Your library has a current subscription to this periodical title (or owns the book) but does not have access to the title (ie: at bindery) OR Your library otherwise determines another exception under Copyright Law applies OR You are paying copyright royalties or you have permission to copy from the copyright holder
Pay copyright fee to CCC Obtain permission to copy from copyright holder (may include payment of royalty fee) Purchase article from document delivery vendor who pays copyright on your behalf (including publisher) – such as BRI Borrow entire volume from another library Refer patron to a nearby library with the issue in its holdings Start a subscription to the journal Cancel/deny ILL request until next calendar year
Entire works in public domain Entire works or sections of works, if -- after reasonable investigation -- a copy of a work cannot be obtained at a “fair price” Works governed by the provisions of a contract or license agreement
Copies made/distributed with no purpose of commercial gain Collections open to the public Copies include a notice of copyright
From 17 U.S.C. § 108 (a)
Patron requests no more than 1 article per periodical issue or only a “small portion” of any other copyrighted work Copy becomes the property of the patron Library believes copy will be used only for private study, scholarship or research Library displays a “warning of copyright” prominently at the place where orders are accepted, and on the order form From 17 U.S.C. § 108 (d)
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 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.
From 37 C.F.R. § 201.14
Screenshot from Mason’s ILLiad article request form
Display copyright warnings Determine if CONTU Guidelines or Copyright Law applies AND if you can fill the request legally Indicate Copyright Compliance on all ILL copy requests Keep records Work with others at your institution to examine ILL requests and economic impacts—a subscription may be cheaper than copyright royalty fees!
Know of copyright limitations impacting borrowing libraries Make sure copyright compliance is indicated ◦ If no: request cannot be filled
Determine if request from a borrowing library appears to violate restrictions on copying set by CONTU and Copyright Law ◦ If yes: request should be refused
Include appropriate Notice of Copyright on copies provided to other libraries
Example of part of flowchart that might be used to in Lending to determine if an article request adheres to CONTU Guidelines or Copyright Law copy limits
If available, include copyright notice that appears in the work (often on first page of article/chapter or in front matter of work)
If not available, include a legend, such as: Notice: This material may be protected by Copyright Law (Title 17 U.S.C.)
Bartholomew, Mel. Square Foot Gardening: A New Way to Garden in Less Space with Less Work. Rodale, 2005. Copyright statement from verso page in book.
Archaeology Ethnology & Anthropology of Eurasia. 38/4 (2011) 52–59. Copyright statement on first page of article in journal.
ABA Journal, July 2002 issue. Copyright statement in front matter of issue.
Limited copying for purposes such as education, research or private study, are usually exceptions within national copyright legislation. The requesting library must follow the copyright laws of the supplying country. The supplying library should inform the requesting library of any copyright restrictions that might apply.
International Resource Sharing & Document Delivery: Principles and Guidelines for Procedure (IFLA, latest revision: 2009) http://www.ifla.org/files/docdel/documents/international-lending-en.pdf
U.S. Copyright Office (www.copyright.gov) CONTU Guidelines ◦ Final Report of the National Commission on New Technological Uses of Copyrighted Works (1978) (http://digital-law-online.info/CONTU/PDF/ index.html) ◦ CONTU Guidelines on Photocopying under ILL Arrangements (excerpt of report from Chapter 4) (www.cni.org/docs/infopols/CONTU.html)
Medical Library Association’s Interlibrary Loan FAQ (www.mlanet.org/government/positions/illfaq.html) [MLA’s FAQ is excellent—if you read nothing else from my list of Primary or Secondary Sources, this is the document to read. It covers a lot of article copyright questions in a very thorough and straightforward manner. And it’s available online for free!] Kristof, Cindy. “U.S. Copyright and Interlibrary Loan Practice.” Interlibrary Loan Practices Handbook, 3rd ed., 2011 (Chapter 4) [There is a new edition of the Virginia Boucher’s Interlibrary Loan Practices Handbook.Virginia Boucher retired a while back, but her legacy lives on. The 3 rd edition, like previous editions, includes a chapter on Copyright. I highly, highly recommend it.] “Interlibrary Loan: Copyright Guidelines and Best Practices.” (Copyright Clearance Center White Paper: March 2011) (http://www.copyright.com/content/dam/cc3/marketing/ documents/pdfs/ILLBrochure.pdf) [CCC’s white paper updates an older document similarly named. There is a typo in this paper—it lists best practices for lending libraries twice—the first should be lending libraries, the second should be borrowing libraries. Note: CCC tends to have a very conservative view of copyright law and practice.Your institution may have a more liberal interpretation.] University of Texas Libraries’ “Copyright Crash Course– Making Copies: Interlibrary Loan” (http://copyright.lib.utexas.edu/l-108g.html) [Many universities have good copyright tutorials and resources online, such as this one from Texas—which specifically deals with ILL. Other ones you might want to explore for general copyright topics: Stanford, Columbia, Minnesota. Just Google the institution’s name + “copyright”.] Band, Jonathan. “The Impact of the Supreme Court’s Decision in Costco v. Omega on Libraries.” (Library Copyright Alliance Policy Paper: January 2011) (http://www.arl.org/news/pr/costcoupdate31jan11.shtml) [Library Copyright Alliance Policy Paper on potential threats to exception in Section 109, which gives libraries the right to lend copyrighted works.]
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