COPYRIGHT ISSUES IN
FOR-PROFIT SPECIAL LIBRARIES:
A HANDBOOK FOR NON-LAWYERS
By Carol Helgerson
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
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 Is the “library exemption” no longer valid in a law, medical, museum, or corporate library that is not open to the public?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
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
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:
Works that can be copyrighted:
Works that cannot be copyrighted:
Literary works (prose, poetry, drama, Computer programming)
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)
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
A Web page
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.”
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.
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.
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.
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
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.”
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
• 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.
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.
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
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.
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.
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