Libraries and Copyright in the

Digital Age

Section 108 exceptions for preservation & ILL

Program Agenda

Careful reading of section 108 Conditions for reproduction & distribution of library

materials: Preservation Interlibrary Loan

Restrictions on digital copies Options for required notice to users CONTU guidelines for ILL Alternatives and recommendations

Section 108(a)

Is an exception to the exclusive rights of reproduction and distribution.

Allows one copy, or more as described in subsections (b) & (c).

Applies to libraries, archives and their employees who act within the scope of their employment

The reproduction & distribution is made without direct or indirect commercial advantage.

The collection is either open to the public or to researchers doing research in same or similar field.

The copy made & distributed contains the notice of copyright from the item or a legend stating that the work may be protected by copyright if the work has no such notice.

Section 108 Study Group

Reviewed 108 & its application in digital age Made several recommendations

Most re. preservation No action yet

One major recommendation re. eligibility: Add non-profit museum.

108(b) – preservation of unpublished material

Up to three copies can be made and distributed IF Purpose is preservation, security or deposit in

another library for research of unpublished work. Original is owned by the library Restriction -- If copy is digital, it cannot be

distributed or made available to the public outside premises of the library

Issues for the digital age

Right of first publication What about “born digital” works? Does digital

copy restriction apply? Study group said physical digital media should be

able to be loaned off-site. No recommendation re. remote access.

Three copy limit impractical for digital Study Group recommended a limitation to number

“reasonably necessary.”

108(c) – Preservative of published material

Up to three copies can be made & distributed IF The purpose is to replace a published work that is

damaged, deteriorating, lost, stolen or obsolete. Library is unable to find unused replacement at a

fair price after reasonable effort. Restriction -- If copy is digital, it cannot be

distributed or made available to the public outside premises of the library.

When is a format obsolete?

When the machine or device necessary to render perceptible a work stored in that format is no longer manufacture or no longer reasonably available in commercial marketplace

What is “reasonable effort?”

“will vary according to circumstances of a particular situation.”

Usually requires Recourse to commonly-known trade sources,

wholesale and/or retail. Contact © holder or publisher, if known. Use authorized reproduction service

What is a “fair price?’

AAP Suggested retail price from publisher Prevailing retail price Normal price charged by authorized reproduction

service ALA

Latest suggested retail price Manufacturing costs plus royalty payments

Issue of multi-volume set If single volumes not available, could argue that

full set price is not a fair price for a single volume.

Study group recommended

That a trigger condition be added for “fragile” or “at-risk” works.

That “born digital” works be included Website preservation be permitted, With opt-out for commercial sites.

That published/unpublished distinction be changed to publicly disseminated v. not.

So far…

We have talked about copying for preservation.

108(d) – ILL – articles for users

Right or reproduction & distribution from 108(a) applies IF User requests no more than one article or other

contribution to collected work or periodical issue, either from owning library or another (i.e. ILL)

Copy becomes property of the user Library has no notice that use will be beyond fair

use Library prominently displays copyright warning

where orders are placed & on forms.

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 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.

Restrictions on digital ILL?

Copyright Act intended to be technologically neutral

Section 108 says “reproduce,” not “photocopy”

Required notice says “libraries are authorized to furnish a photocopy or other reproduction.”

Section 101 definition of copies broad enough to include digital.

More on digital copies

Is the designation of “one” copy a problem? Study group recommended revision Note 108(d)(1) – copy must become property of

users. If digital files are deleted, we can argue that only one (persistent) copy was made.

Study group recommended explicit rule that lending library could not retain scanned image for reuse without permission

108 (e) – ILL – copies for users

Right of reproduction & distribution from 108(a) applies to a copy of an entire work, or substantial part thereof, IF User requests either from owning library or

another library Library first determines by reasonable

investigation that copy cannot beobtained at fair price.

More from 108(e)

Copy must become property of user. Library cannot have notice that the user has a

purpose beyond those permitted as fair use (§107) Library displays copyright warning (from Copyright

Office regulations) on order form & where orders are placed.

Study group made same recommendations re digital copies as for 108(d). Flexible standard re. number, no retention by lender,

security measures to deter unauthorized copying.

108(f)(1) – Unsupervised copiers

No liability on library or employees for unsupervised use of reproduction equipment.

Provided: Such equipment displays a notice that making a copy may be subject to copyright law.

Options for notice

The Copyright Office warning “Notice – Making a copy may

be subject to the copyright law” (from 108(f)(1))

“Notice: The copyright law of the United States (Title 17, U.S. Code) governs the making of photocopies or reproductions of copyrighted material; the person using this equipment is liable for any infringement.”

Any wording the library chooses.

108(f)(2) – the flip side

Nothing in section 108 Excuses from liability User of unsupervised

equipment or person who requests a copy under 108(d) from liability if they exceed section 107 fair use.

Other provisions of 108(F)

Nothing in this section – Limits the reproduction & distribution rights by

lending a limited number of copies… of an audiovisual news program (108(f)(3))

Affects the right of fair use under §107, or any contractual obligations assumed at any time by the library when it obtained a copy of a work in its collection. VERY important in digital age – License agreements

govern!!

108(g)(1) – general limitation

108 rights extend to “isolated and unrelated” reproduction & distribution of a single copy of the same material on separate occasions, but not to cases where: Library or employee is aware or has substantial

reason to believe it is engaged in concerted reproduction of multiple copies OR

Is engaged in systematic reproduction & distribution of single or multiple copies of materials described in subsection (d)

108(g)(2) – Proviso to that limit

Nothing in this clause prevents a library or archives from participating in Interlibrary arrangements that do not have, as their purpose or effect, receipt of copies in such aggregate quantities as to substitute for a subscription to or purchase of a work. This permits consortia, but borrowing must not be

concerted or replace purchase Role of CONTU guidelines!

CONTU Guidelines for ILL (H. Rept. 94-1733)

ILL “Suggestion of Five” Each year, a borrowing library may make five

requests from a periodical title going back five years.

Current year = 2009 Five articles per year from most recent 60 months of

one title (since July 2004).

Other CONTU provisions

Do not count in Suggestion of Five if Title is owned but missing Title is on order

Non-periodical material Five requests per year (for copies!) during entire

term of copyright

Other CONTU provisions (cont.)

Borrowing library must maintain records for three calendar years.

Lending libraries must require a representation from the borrowing library that the request conforms to the guidelines

NOTE – the guidelines take no position regarding periodical materials older than five years. Systematic copying still not allowed, but definition

is open.

Now we have discussed the rules for ILL

Some alternatives & recommendations

What to do with the 6th request Tell user “no, come back on Jan. 1.” Order copy from authorized document delivery

service Pay royalties to publisher, directly or through

CCC Enter a subscription for

the title Once in a “blue moon,”

make an exception.

Copyright Clearance Center

Non-profit corporation that collects royalties for use in excess of fair use and distributes that $$$ to copyright holders.

CCC members are Publishers, who establish per page or per article

royalties. CCC can only license works owned by member

publishers Business & libraries that pay royalties for non-fair

use copying.

Paying the CCC

Pay per use Relatively easy search & order function Can use credit card or set up invoice account

Business licenses Annual Campus License

Based on FTE Covers many uses on campus (course packs,

electronic reserves, use of course management system)

BUT, it does not include ILL.

Copyright.com (CCC)

Copyright.gov (LoC)

108(h) – from the CTEA

Library, archive or non-profit educational institution may, in the last 20 years of a works copyright term, reproduce distribute, display or perform in facsimile or digital form for preservation, scholarship or research a copy of the work

IF the library has first determined by reasonable investigation that:

Conditions on 108(h)

The work is not subject to normal commercial exploitation.

A copy of the work cannot be obtained at a reasonable price

Owner has not provided notice that either of the above conditions apply This exception does not apply to subsequent uses

by users other than the library or archive.

108(i) – the final section The rights in section 108 do not apply to:

A musical work

A pictorial, graphic or sculptural work, or A motion picture or other audiovisual work other

than one dealing with news (see 108(f)(3))

Exceptions to 108(i)

No limitation applies with respect to rights granted by subsections (b), (c) & (h) So preservation copying, within prescribed limits,

is allowed for musical, artistic & a/v works. But not ILL (subsections (d) & (e))

However, pictorial or graphic works that are part of an article may be reproduced along with the article; they are treated as text for ILL purposes.

QUESTIONS?