ill & copyright: putting it all together
TRANSCRIPT
ILL & Copyright: Putting it all together
ACRL Vermont and New Hampshire Interlibrary Loan LibrariansFall 2016
Jon Cavicchi, J.D., LL.M. (IP), Professor & IP LibrarianFaculty Fellow : Franklin Pierce Center for Intellectual Property
Resources
ContentsLegal PeriodicalsLegal treatise sectionsList of copyright & libraries books in UNH Law IP
LibraryGovernment docs NGO grey materialsLink to helpful ILL tools
To be honest, copyright is a topic which confuses and scares most librarians—even though the ALA
Code of Ethics commits us to uphold it!
Who makes copyright decisions within an organization?
UNH exampleGeneral CounselUNHInnovationDimond LibraryUNH Law IP LibraryUNH Law copyright professorsCopyright lawyer?
Is copyright a “big deal” for Libraries?
Carrot and the sticksearch shows Libraries are not
receiving desist letters or being sued
Librarians proactiveprofessional associations spend large
sums to protect educate members on the law and to lobby to keep legislation friendly to libraries and information accessible to the public
Copyright trials are rare
According to Table C-4 in "Judicial Business of the US Courts," only 20 copyright cases that terminated in 2015 went to jury.
Percent reaching trial 0.7%
Jon - don’t tell them its OK to infringe because they won’t
get caught !APA
sharing decreases subscriptions and drives prices up
copying drives prices upquality control costspublishers need revenue streamspublishers need revenue to reinvest and develop
subsidiary uses
They won’t sue libraries but they won’t concede in negotiating legislation and guidelinesRobert L. Oakley, Growing Pains : Adapting
Copyright for Libraries, Education, and Society (Rothman)
Is the copyright law...
Accommodation of interests?
Protection of capital structure?
The right of access on behalf of copyright proprietors raises significant concerns for libraries and their patrons in their efforts to access and use copyrighted works. Libraries acquire copyrighted books and materials and have traditionally made them available to library users. The first sale doctrine permits libraries to lend their copies of copyrighted works to users without seeking permission or paying fees to the copyright holder. Access controls have the potential to disrupt traditional library service by converting access to materials to a pay-for-use system regardless of the purpose of the user who is accessing the work. Although libraries could fund access for all of its patrons, the reality of library budgets makes this highly unlikely. Thus, individual library users are likely to have to pay for their access or for various levels of access which will create a world of information haves and have nots. Additionally, access controls could eliminate the first sale doctrine, although it is arguable that the first sale doctrine may be meaningless, in any event, in a pay-for-use world. Laura N. Gasaway, The New Access Right and Its Impact on Libraries and Library Users, 10 J. Intell. Prop. L. 269 (2003)
Give not into temptation...Copying is quicker and cheaper than
tackling the copyright law learning curve?drafting policies and procedures?clearing copyright use?keeping records?
Statutory damages up to $150,000 (libraries?)
Premise of copyright is consistent with missing and goals of librarianship: “to serve social interests and the public welfare by encouraging learning, free speech and the advancement of knowledge.”
Today’s Libraries in NHPublicSchoolCollege & UniversitySome little to no technologySome fully “wired” with extensive electronic
collections
Diversity of library settings - SLA
Business / CorporateEducationalGovernmentalLawMuseums PublicResearch
Scenarios differ but we allAcquirePreserveOrganizeMake available
CopyDistributeLendPerformDisplay
The content of others
Most of the time protected by law
Copyright has come a long way
Based on English lawTradition of proprietary right in artistic and
intellectual labor developed over many centuriesSt. Columba copies Psalter of St. Fennian (600s)
Irish King Diarmait arbitrates “To every calf her cow, to every book its copy”
Organized law of copyright
Craxton introduces printing press in 1476Patronage & royal prerogativecensor seditious literatureMonopoly by Stationers CompanyStatute of Anne in 1710 provided literary work
was property of authorTransition of author as gentleman and scholar to proprietor
U.S. Copyright lawsPre-Constitution all colonies passed law
protecting creative worksArticle I, clause 8, section 8
“The Congress shall have the power…to promote the progress of science and useful arts…by securing for limited times to authors and inventors the exclusive rights to their respective writings and discoveries”
Dueling public policies
Promote creativity by granting exclusive rights Enhance the use of the public fund of knowledgeCreators clash with users?That which is a financial detriment to an author
a detriment to the public?
Copyright law became purely Federal
U.S. Copyright Acts17901831187019091976
1976 Act is the current law amended many times in the last two decades
Copyright “law” : 3 branches of government ConstitutionCopyright Act
Federal RegulationsCopyright Compendium II
Appellate court decisions interpreting the three above authorities
Many interpretations
The long tail of litigation?TEACH Act 2002 passed almost 15 years agoNo interpretive cases“The TEACH Act is too new to have been
judicially interpreted, and case law may be long in coming.”
Raymond T. Nimmer & Holly K. Towle, The Law of Electronic Commercial Transactions (Pratt, Last updated August 2016)
“Official” GuidelinesLegislative history to the 1976 ActCopyright Office CircularsCONTUCONFUYou may be obligated to follow them by
agreement“Safe harbors?”
have courts made them maximum guidelines?
Model PoliciesALA Model PoliciesALA Interlibrary Loan Code for the United States
(RUSA)
Interlibrary Loan: Copyright Guidelines and Best Practices
Code of Best Practices in Fair Use for the Visual Arts
May adopt and be bound by themwithin institutionby agreement
Oh no, there are international rules too?
U.S. is a party to conventions and treaties
move to harmonize U.S. law e.g. Digital Millenium Copyright Act implements
World Intellectual Property legislation
How do I figure this all out?
Black Listclearly prohibited by law or court decision in your
CircuitGrey List
no clear lawGuidelines allow
White listclearly allowed by law or court decision in your
Circuit
When white is black and black is white
Contracts may control what you can doa license or agreement may limit
what is lawful and allow what is prohibited
Contract preemption: an issue to watchSee Ass'n for Info. Media & Equip.
v. Regents of the Univ. of Cal., No. CV 10-9378 CBM, slip op. at 9-10 (C.D. Cal. Oct. 3, 2011).
Spectrum of books
Helpful Web Sources
Making copyright ILL decisions
Digital ILL : profit?
Copyright ActProtected Y/N
Fair Use Y/N
108 Y/N
Permissive useGetting permission can be easyPay close attention to whether content
participates in Creative Commons.
NOT protectedContent beyond copyright duration
PUBLIC DOMAINU.S. government worksFacts Ideas“Scenes a faire” refers to things that are typical of a
genreRealistic – rather than whimsical – representations of
nature have less protection
First Sale Doctrine – Section 109• Allows us to borrow and lend “returnables”
– Books– Theses and dissertations– Microforms– Videos– DVDs– CDs– Whole issues or bound volumes of journals
8 sections…many subsections... 4 pages of fine print
108(a) - no more than one copy108(b) - Archival Reproduction of Unpublished Works108(C) - Reproduction to Replace Lost or Damaged Works108(d) - Articles or small excerpts108(e) - entire works108(f) - Unsupervised Reproduction Equipment108(g) - Systematic Reproduction108(h) - Rights of this section do not apply to...
§108 Section 108 of the Copyright Act provides that, notwithstanding the exclusive rights granted to
copyright owners, “libraries and archives” shall be exempt from liability for copying and distributing otherwise protected works under a set of specifically delineated conditions for limited purposes such as preservation or replacement.
The framework of Section 108 was developed over a quarter century ago and, although amended since, is perceived by many as in need of reexamination.
In April 2005, the Copyright Office and the Library of Congress's National Digital Information Infrastructure and Preservation Program (“NDIIPP”) established a Section 108 Study Group charged with examining how Section 108 may be amended to account for the widespread use of digital technologies.
In March 2006, the Study Group held public roundtable discussions in Los Angeles, California and Washington, D.C. and requested written comment on issues relating to (1) what entities should be eligible for the advantages of the section (e.g. museums); (2) possible amendments to the preservation and replacement provisions of the section; (3) a proposal to permit preservation copies of certain types of Internet content; and (4) a proposal to permit preservation copies of published works under certain circumstances.
More recently, the Study Group has examined the provisions of Section 108 governing copies made by libraries and archives, at the request of users (including interlibrary loan copies), as well as whether new provisions relating to copies, performances or displays made in the course of providing public access are necessary. Public Study Group meetings continued through early 2007, with the report released in 2008
Legal Academics RespondSavanna Nolan, Standing on the Shoulders of Giants: How A
Drastic Remodeling of 17 U.S.C. S 108 Could Help Save Academia, 19 J. Intell. Prop. L. 457 (2012)
Moderator: Nancy Weiss et. al., Session 2: Section 108 Issues Other Than Mass Digitization, 36 Colum. J.L. & Arts 547 (2013)
Mary Rasenberger, Copyright Issues and Section 108 Reform, 34 Colum. J.L. & Arts 15 (2010)
James G. Neal, A Lay Perspective on the Copyright Wars: A Report from the Trenches of the Section 108 Study Group Horace S. Manges Lecture: April 1, 2008, 32 Colum. J.L. & Arts 193 (2009)
ILLOriginally about distributionDigital ILL about distribution and copying.
Digital ILLNo longer send original items
Original paper copyScanned copy Digitized copy via internetRequestor copy often printed out
108(a)
108(b)
108(c)
Section 108(C) - Reproduction to Replace Lost or Damaged Works
The purpose of such duplication is to replace a published damaged, deteriorating, lost or stolen copy…
After the library makes a reasonable effort to determine that an unused copy cannot be obtained at a fair price
FAIR PRICEAssociation of American Publishers
definition
The suggested retail price if available from the publisher If not so available, the prevailing retail priceThe normal price charged by an authorized reproducing
service
108(d)
Photocopy warning 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 reproductions. 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 judgement, fulfillment of the order would involve violation of copyright law. 37 C.F.R. Section 201.14
108(e)
108(f)
108(g)
108(h)
108(i)
CONTU• Not to be confused with CONFU…• “Commission on new technological uses of
copyrighted works”– Group of publishers, librarians, teachers, and other
stakeholders– Controversy over 108 & ILL– Designed to eliminate confusion
• Pursuant to the Copyright Act of 1976– Final Report – 1978
• http://digital-law-online.info/CONTU/PDF/index.html– Chapter 4 - Guidelines on Photocopying under
Interlibrary Loan Arrangements
CONTU Guidelines• Provides clarification for Section 108• Attempts to quantify…
– “Systemic reproduction”– “Aggregate quantities”
• Attempts to mitigate effects of library subscription patterns on market and sales
CONTU Guidelines• “5/5 Rule” or “Rule of Five”
– For BORROWING library– Articles published fewer than five years before
date of request– Requesting and receiving six or more articles
from a single journal title in a calendar year• Deny request• Start a subscription to the journal• Pay royalties on requests that exceed this rule
ILL, CCG and CCL…?Library staff that request copies of magazine and
journal articles through Interlibrary Loan need to indicate on their request compliance with copyright laws
They do this by indicating either “CCG” or “CCL” in the request. But what do those letters mean?
CCG indicates compliance with the CONTU Guidelines. If those statements are not true, then you must
indicate “CCL” to show compliance with the U.S. Copyright Law.
http://libraries.idaho.gov/node/951
CONTU Guidelines
• All ILL photocopy requests must include a copyright compliance statement by the BORROWING library– CCG
• ILL request complies with 108 (g) (2) Guidelines• Falls within Rule of Five
– CCL• ILL request complies with other provision of
copyright law• Falls outside Rule of Five
Each year, a borrowing library may make five requests from a periodical title going back five years
H. R. 94-1733
In the current year 2016
2015
2014 5 times per year within these volume years : most recent 60 months
2013
2012
2011
Borrowing library must maintain records for three calendar years.
Lending library must require representation from borrowing library that request conforms to guidelines.
The guidelines take no position on materials older than five years.
6th request for a titleTell the user no, come back Jan.1.Order copy from an authorized
document delivery service.Pay royalties through CCC or directly
to publisher.Enter a subscription to the title.“Once in a blue moon exception”:
make the copy.
ConsortiaSection 108(g)(2) Proviso:“Nothing prevents a library or archives from
participating in interlibrary arrangements that do not have as their purpose or effect receiving copies in such aggregate quantities as to substitute for subscription to or purchase of a work.”Consortia permittedBut, borrowing must follow ILL guidelinesEffects of intra v. interlibrary loan
Copyright Clearance Center
• Clearance for textual works since 1978– http://www.copyright.com– For ILL
• Pay royalties on “CCG” photocopies that exceed the “Rule of Five”
– ILL transactions fall under Pay-per-use Permissions– Why are some clearance fees so expen$ive?
• Not all publishers work with the Copyright Clearance Center
What about non-CCC titles?
• Commercial Document Delivery Services– Copyright fees are included in the price
• British Library Document Supply Services• CISTI (Canada Institute for Scientific
and Technical Information)
• Purchase from the publisher– Subscriptions– Issues– Individual articles
Non library exemptions 109. Limitations on exclusive
rights: Effect of transfer of particular copy or phonorecord
110. Limitations on exclusive rights: Exemption of certain performances and displays
111. Limitations on exclusive rights: Secondary transmissions
112. Limitations on exclusive rights: Ephemeral recordings
113. Scope of exclusive rights in pictorial, graphic, and sculptural works
114. Scope of exclusive rights in sound recordings
115. Scope of exclusive rights in non dramatic musical works: Compulsory license for making and distributing phonorecords
116. Negotiated licenses for public performances by means of coin-operated phonorecord players
117. Scope of exclusive rights: Use in conjunction with computers and similar information systems
118. Scope of exclusive rights: Use of certain works in connection with noncommercial broadcasting
119. Limitations on exclusive rights: Secondary transmissions of superstations and network stations for private home viewing
120. Scope of exclusive rights in architectural works
121. Limitations on exclusive rights: reproduction for blind or other people with disabilities
If you conclude you have no right to use so far, the
final step is to apply The Doctrine of Fair Useenacted to provide the
widest exploitation of copyrighted works
It’s a DEFENSE
Four prong testPurpose and character of the use
commercial ornonprofit educational purposes
nature of copyrighted workamount & substantiability of portion used in
relation to the wholeeffect upon potential market or value of work
Tell me librarian, do you feel lucky?
May be used to get around black listBalancing testLook to way judges in Circuit apply the testIf you are wrong you may be liable for statutory
damages and paying the owner’s attorney fees
Risk toleranceBeyond fair use, permission,
license…negotiateaccept riskget insurance
Coverage Under The Comprehensive (or Commercial) General Liability Policy
Direct coverage
Relationship 107/1081983 Reports of the Register of
Copyrights on Section 108 The position of the authors and publishers on the relationship
between Sections 107 and 108 may be seen from the following remarks of Charles Lieb: On the initial question of 107 and 108, we think it clear that
108 provides additional [copying rights] over and above those afforded libraries by Section 107. And we think that this conclusion is supported not only by the legislative history but by the illogic of contrary review.
We think if Section 108 does not put a cap for all practical purposes on library copying rights and all unspecified rights, and we found fair use under 107 what purpose would Section 108 serve? Why was it the subject of such bitter controversy? Why did the library representatives, in their efforts to eliminate Section 108(g) state their fear [that] if (g)(2) became part of the law traditional library copying will be impeded if not made impossible. And these arguments, really, may have to be made in a different forum.
Charles Lieb quoted in Patry on Fair Use § 9:31(Thomson West 2016)
The position of the educators and librarians may be seen in the following remarks by John Stedman at the same meeting:
It is important to look at, first of all, Section 107 in terms of its history and context. This, after all, is a long-standing doctrine, the doctrine of fair use, which has been in the law for a good hundred years, as I recall.
It has been basically a legal court made and court applied doctrine, a sort of safety valve to take care of situations that they felt needed taking care of and which the strict, literal language of the Copyright Law did not take care of. It has been a safety valve. In putting this into the statute for the first time Congress really agreed to a couple of changes, not changes so much as clarifications that they have made, have simply restated what has been the law.
This becomes a provision of the law which Congress was simply reaffirming, in effect, telling the parties, “Go ahead and continue to apply the fair use doctrine” as they have been doing for decades. All right. That was in the law and it was in the law.
Then comes along Section 108 which presumably resulted because of concerns over the vagueness and the generalities of Section 107. That attempts in some respects—I think it poses some difficulties, but at least it was an attempt to satisfy the educators by putting in some specific language.
Now, as I read the two sections, 108 says, “Here are some things that you can definitely do.”
Section 107 says, quite apart from Section 108, “We will continue to apply the fair use doctrine,” and whether the fair use doctrine may be narrower in some situations than the Section 108 case or broader in some situations than 108 I think are debatable questions.
Patry on Fair Use § 9:31 (Thomson West 2016)
Developments?Copyright Act enacted in 1976Has been amended.DMCA changes integrated into section 108 In exchange for unprecedented access to copyright-
protected material for distance education, the TEACH Act (2002) requires that the academic institution meet specific requirements for copyright compliance and education. TEACH Act specifically do not extend to electronic
reserves, coursepacks (electronic or paper), interlibrary loan (ILL) or commercial document delivery.
Some copyright challenges for today’s
librariesPotential mass copying of electronic contentPreservation copying - digital format life is 15-20
yearsUnsupported digital formats Orphan worksDigital resource sharing
consortia ILLcooperative collection development plans
Library shift from print to e-resources
Questions? Doubts?• Remember copyright’s primary purpose• Confer with your designated copyright
expert/decision maker• Consult ILL/copyright resources• Ask your colleagues
EVERYONE BENEFITS WHEN LIBRARIES SHARE?