3 Copyright and Libraries: Resource Sharing
Cindy Kristof and Collette Mak
Constitutional and Statutory Law
Statutory Law: text of section 108
Constitutional and Statutory Law
U.S. Const., Art. I, § 8, cl. 8. The Congress shall have Power * * * To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.
Section 108 Limitations on exclusive rights: Reproduction by libraries and archives, 17 U.S.C. §108 [The text of section 108 is found at the end of this chapter after the Scenarios section.]
Case Law
The Williams & Wilkins Co. v. U.S., 487 F. 2d 1345 (Court of Claims, 1973). [Affirmed by an equally divided Court, The Williams & Wilkins Co. v. U.S., 420 U.S. 376 (1975).]
Opinion
DAVIS, Judge:
We confront a ground-breaking copyright infringement action under 28 U.S.C. § 1498(b), the statute consenting to infringement suits against the United States. Plaintiff Williams & Wilkins Company, a medical publisher, charges that the Department of Health, Education, and Welfare, through the National Institutes of Health (NIH) and the National Library of Medicine (NLM), has infringed plaintiff’s copyrights in certain of its medical journals by making unauthorized photocopies of articles from those periodicals. Modern photocopying in its relation to copyright spins off troublesome problems, which have been much discussed. Those issues have never before been mooted or determined by a court. In this case, an extensive trial was held before former Trial Judge James F. Davis who decided that the Government was liable for infringement. On review, helped by the briefs and agreements of the parties and the amici curiae, we take the other position and hold the United States free of liability in the particular situation presented by this record.
Plaintiff, though a relatively small company, is a major publisher of medical journals and books. It publishes 37 journals, dealing with various medical specialties. The four journals in suit are Medicine, Journal of Immunology, Gastroenterology, and Pharmacological Reviews. Medicine is published by plaintiff for profit and for its own benefit. The other three journals are published in conjunction with specialty medical societies which, by contract, share the journals’ profits with plaintiff. The articles published in the journals stem from manuscripts submitted to plaintiff (or one of the medical societies) by physicians or other scientists engaged in medical research. The journals are widely disseminated throughout the United States (and the world) in libraries, schools, physicians’ offices, and the like. Annual subscription prices range from about $12 to $44; and, due to the esoteric nature of the journals’ subject matter, the number of annual subscriptions is relatively small, ranging from about 3,100 (Pharmacological Reviews) to about 7,000 (Gastroenterology). Most of the revenue derived from the journals comes from subscription sales, though a small part comes from advertising. The journals are published with notice of copyright in plaintiff’s name. The notice appears at the front of the journal and sometimes at the beginning of each article. After publication of each journal issue (usually monthly or bimonthly) and after compliance with the requisite statutory requirements, the Register of Copyrights issues to plaintiff certificates of copyright registration.
NIH, the Government’s principal medical research organization, is a conglomerate of institutes located on a multi-acre campus at Bethesda, Maryland. Each institute is concerned with a particular medical specialty, and the institutes conduct their activities by way of both intramural research and grants-in-aid to private individuals and organizations. NIH employs over 12,000 persons —4,000 are science professionals and 2,000 have doctoral degrees. To assist its intramural programs, NIH maintains a technical library. The library houses about 150,000 volumes, of which about 30,000 are books and the balance scientific (principally medical) journals. The library is open to the public, but is used mostly by NIH in-house research personnel. The library’s budget for 1970 was $1.1 million; of this about $85,000 was for the purchase of journal materials.
The NIH library subscribes to about 3,000 different journal titles, four of which are the journals in suit. The library subscribes to two copies of each of the journals involved. As a general rule, one copy stays in the library reading room and the other copy circulates among interested NIH personnel. Demand by NIH research workers for access to plaintiff’s journals (as well as other journals to which the library subscribes) is usually not met by in-house subscription copies. Consequently, as an integral part of its operation, the library runs a photocopy service for the benefit of its research staff. On request, a researcher can obtain a photocopy of an article from any of the journals in the library’s collection. Usually, researchers request photocopies of articles to assist them in their on-going projects; sometimes photocopies are requested simply for background reading. The library does not monitor the reason for requests or the use to which the photocopies are put. The photocopies are not returned to the library; and the record shows that, in most instances, researchers keep them in their private files for future reference.
The library’s policy is that, as a rule, only a single copy of a journal article will be made per request and each request is limited to about 40 to 50 pages, though exceptions may be, and have been, made in the case of long articles, upon approval of the Assistant Chief of the library branch. Also, as a general rule, requests for photocopying are limited to only a single article from a journal issue. Exceptions to this rule are routinely made, so long as substantially less than an entire journal is photocopied, i. e., less than about half of the journal. Coworkers can, and frequently do, request single copies of the same article and such requests are honored.
Four regularly assigned employees operate the NIH photocopy equipment. The equipment consists of microfilm cameras and Xerox copying machines. In 1970, the library photocopy budget was $86,000 and the library filled 85,744 requests for photocopies of journal articles (including plaintiff’s journals), constituting about 930,000 pages. On the average, a journal article is 10 pages long, so that, in 1970, the library made about 93,000 photocopies of articles.
NLM, located on the Bethesda campus of NIH, was formerly the Armed Forces Medical Library. In 1956, Congress transferred the library from the Department of Defense to the Public Health Service (renaming it the National Library of Medicine), and declared its purpose to be “* * * to aid the dissemination and exchange of scientific and other information important to the progress of medicine and to the public health * * *.” 42 U.S.C. § 275 (1970). NLM is a repository of much of the world’s medical literature, in essence a “librarians’ library.” As part of its operation, NLM cooperates with other libraries and like research-and-education-oriented institutions (both public and private) in a so-called “interlibrary loan” program. Upon request, NLM will loan to such institutions, for a limited time, books and other materials in its collection. In the case of journals, the “loans” usually take the form of photocopies of journal articles which are supplied by NLM free of charge and on a no-return basis. NLM’s “loan” policies are fashioned after the General Interlibrary Loan Code, which is a statement of self-imposed regulations to be followed by all libraries which cooperate in interlibrary loaning. The Code provides that each library, upon request for a loan of materials, shall decide whether to loan the original or provide a photoduplicate. The Code notes that photoduplication of copyrighted materials may raise copyright infringement problems, particularly with regard to “photographing whole issues of periodicals or books with current copyrights, or in making multiple copies of a publication.” [Emphasis in original text.] NLM, therefore, will provide only one photocopy of a particular article, per request, and will not photocopy on any given request an entire journal issue. Each photocopy reproduced by NLM contains a statement in the margin, “This is a single photostatic copy made by the National Library of Medicine for purposes of study or research in lieu of lending the original.”
In recent years NLM’s stated policy has been not to fill requests for copies of articles from any of 104 journals which are included in a so-called “widely-available list.” Rather, the requester is furnished a copy of the “widely-available list” and the names of the regional medical libraries which are presumed to have the journals listed. Exceptions are sometimes made to the policy, particularly if the requester has been unsuccessful in obtaining the journal elsewhere. The four journals involved in this suit are listed on the “widely-available list.” A rejection on the basis of the “widely-available list” is made only if the article requested was published during the preceding 5 years, but requests from Government libraries are not refused on the basis of the “widely-available list.”
Also, NLM’s policy is not to honor an excessive number of requests from an individual or an institution. As a general rule, not more than 20 requests from an individual, or not more than 30 requests from an institution, within a month, will be honored. In 1968, NLM adopted the policy that no more than one article from a single journal issue, or three from a journal volume, would be copied. Prior to 1968, NLM had no express policy on copying limitations, but endeavored to prevent “excessive copying.” Generally, requests for more than 50 pages of material will not be honored, though exceptions are sometimes made, particularly for Government institutions. Requests for more than one copy of a journal article are rejected, without exception. If NLM receives a request for more than one copy, a single copy will be furnished and the requester advised that it is NLM’s policy to furnish only one copy.
In 1968, a representative year, NLM received about 127,000 requests for interlibrary loans. Requests were received, for the most part, from other libraries or Government agencies. However, about 12 percent of the requests came from private or commercial organizations, particularly drug companies. Some requests were for books, in which event the book itself was loaned. Most requests were for journals or journal articles; and about 120,000 of the requests were filled by photocopying single articles from journals, including plaintiff’s journals. Usually, the library seeking an interlibrary loan from NLM did so at the request of one of its patrons. If the “loan” was made by photocopy, the photocopy was given to the patron who was free to dispose of it as he wished. NLM made no effort to find out the ultimate use to which the photocopies were put; and there is no evidence that borrowing libraries kept the “loan” photocopies in their permanent collections for use by other patrons.
Defendant concedes that, within the pertinent accounting period, NLM and the NIH library made at least one photocopy of each of eight articles (designated by plaintiff as the Count I-to-Count VIII articles) from one or more of the four journals in suit. These requests, as shown at the trial, were made by NIH researchers and an Army medical officer (stationed in Japan) in connection with their professional work and were used solely for those purposes. In seven of the eight counts in the petition, the article requested was more than two years old; in the eighth instance it was 21 or 22 months old.
II
We assume, for the purposes of the case, but without deciding, that plaintiff is the proper copyright owner and entitled to sue here, and we agree with plaintiff that, on that assumption, it can sue for infringement of the eight separate articles. This faces us squarely with the issue of infringement.
…
The court-created doctrine of “fair use” (discussed in Part III, infra) is alone enough to demonstrate that Section 1 does not cover all copying (in the literal sense). Some forms of copying, at the very least of portions of a work, are universally deemed immune from liability, although the very words are reproduced in more than de minimis quantity. Furthermore, it is almost unanimously accepted that a scholar can make a handwritten copy of an entire copyrighted article for his own use, and in the era before photoduplication it was not uncommon (and not seriously questioned) that he could have his secretary make a typed copy for his personal use and files. These customary facts of copyright-life are among our givens. The issue we now have is the complex one of whether photocopying, in the form done by NIH and NLM, should be accorded the same treatment—not the ministerial lexicographic task of deciding that photoduplication necessarily involves “copying” (as of course it does in dictionary terms).
…
This is quite a serious argument. However, in view of Congress’s general inclusion of the word “copy” in Section 1 and of the practice under the Act since 1909, we are not ready to accept fully this claim that infringement of periodical articles can come only through “printing,” “reprinting” or “publishing.” But we do believe this point—that there is a solid doubt whether and how far “copy” applies to books and journals —must be taken into account in measuring the outlines of “copying” as it involves books and articles.
Adding to this doubt that “copy” blankets such printed matter is the significant implication of a special segment of the background of the 1909 statute, a sector of history which is peripheral but revealing. The then Librarian of Congress, Herbert Putnam, was the leading public sponsor of that Act (outside of Congress itself), and was intimately involved in its preparation from at least 1906 on. While the bill was being considered in Congress, the Library’s 1908 “Rules and Practice Governing the Use and Issue of Books,” p. 6, specifically provided:
“Photographing. Photographing is freely permitted. The permission extends to the building itself and any of its parts, including the mural decorations. It extends to articles bearing claim of copyright, but the Library gives no assurance that the photograph may be reproduced or republished or placed on sale. These are matters to be settled with the owner of the copyright” (emphasis added).
…
These are the leading reasons why we cannot stop with the dictionary or “normal” definition of “copy”—nor can we extract much affirmative help from the surfacial legislative text. As for the other rights given in Section 1, “vend” is clearly irrelevant (since NIH and NLM do not sell), and the applicability to this case of “print,” “reprint” and “publish” is more dubious than of “copy.” The photocopy process of NIH and NLM, described in Part I, supra, does not even amount to printing or reprinting in the strict dictionary sense; and if the words be used more broadly to include all mechanical reproduction of a number of copies, they would still not cover the making of a single copy for an individual requester. If the requester himself made a photocopy of the article for his own use on a machine made available by the library, he might conceivably be “copying” but he would not be “printing” or “reprinting.” The library is in the same position when responding to the demands of individual researchers acting separately.
For similar reasons there is no “publication” by the library, a concept which invokes general distribution, or at least a supplying of the material to a fairly large group. The author of an uncopyrighted manuscript does not lose his common law rights, via publication, by giving photocopies to his friends for comment or their personal use—and publication for Section 1 purposes would seem to have about the same coverage. In any event, the hitherto uncodified principles of “fair use” apply to printing, reprinting, and publishing, as well as to copying, and therefore the collocation of general words Congress chose for Section 1 is necessarily inadequate, by itself, to decide this case.
III
In the fifty-odd years since the 1909 Act, the major tool for probing what physical copying amounts to unlawful “copying” (as well as what is unlawful “printing,” “reprinting” and “publishing”) has been the gloss of “fair use” which the courts have put upon the words of the statute. Precisely because a determination that a use is “fair,” or “unfair,” depends on an evaluation of the complex of individual and varying factors bearing upon the particular use (see H.R.Rep. No. 83, 90th Cong., 1st Sess., p. 29), there has been no exact or detailed definition of the doctrine. The courts, congressional committees, and scholars have had to be content with a general listing of the main considerations—together with the example of specific instances ruled “fair” or “unfair.” These overall factors are now said to be: (a) the purpose and character of the use, (b) the nature of the copyrighted work, (c) the amount and substantiality of the material used in relation to the copyrighted work as a whole, and (d) the effect of the use on a copyright owner’s potential market for and value of his work.
In addition, the development of “fair use” has been influenced by some tension between the direct aim of the copyright privilege to grant the owner a right from which he can reap financial benefit and the more fundamental purpose of the protection “To promote the Progress of Science and the useful Arts.” U.S.Const., art. 1, § 8. The House committee which recommended the 1909 Act said that copyright was “[n]ot primarily for the benefit of the author, but primarily for the benefit of the public.”
…
It has sometimes been suggested that the copying of an entire copyrighted work, any such work, cannot ever be “fair use,” but this is an overbroad generalization, unsupported by the decisions and rejected by years of accepted practice. The handwritten or typed copy of an article, for personal use, is one illustration, let alone the thousands of copies of poems, songs, or such items which have long been made by individuals, and sometimes given to lovers and others. Trial Judge James F. Davis, who considered the use now in dispute not to be “fair,” nevertheless agreed that a library could supply single photocopies of entire copyrighted works to attorneys or courts for use in litigation. It is, of course, common for courts to be given photocopies of recent decisions, with the publishing company’s headnotes and arrangement, and sometimes its annotations. There are other examples from everyday legal and personal life. We cannot believe, for instance, that a judge who makes and gives to a colleague a photocopy of a law review article, in one of the smaller or less available journals, which bears directly on a problem both judges are then considering in a case before them is infringing the copyright, rather than making “fair use” of his issue of that journal. Similarly with the photocopies of particular newspaper items and articles which are frequently given or sent by one friend to another. There is, in short, no inflexible rule excluding an entire copyrighted work from the area of “fair use.” Instead, the extent of the copying is one important factor, but only one, to be taken into account, along with several others.
… In the rest of this part of our opinion, we discuss seriatim the various considerations which merge to that conclusion. But we can help focus on what is probably the core of our evaluation by stating summarily, in advance, three propositions we shall consider at greater length: First, plaintiff has not in our view shown, and there is inadequate reason to believe, that it is being or will be harmed substantially by these specific practices of NIH and NLM; second, we are convinced that medicine and medical research will be injured by holding these particular practices to be an infringement; and, third, since the problem of accommodating the interests of science with those of the publishers (and authors) calls fundamentally for legislative solution or guidance, which has not yet been given, we should not, during the period before congressional action is forthcoming, place such a risk of harm upon science and medicine.
1.We start by emphasizing that (a) NIH and NLM are non-profit institutions, devoted solely to the advancement and dissemination of medical knowledge which they seek to further by the challenged practices, and are not attempting to profit or gain financially by the photocopying; (b) the medical researchers who have asked these libraries for the photocopies are in this particular case (and ordinarily) scientific researchers and practitioners who need the articles for personal use in their scientific work and have no purpose to reduplicate them for sale or other general distribution; and (c) the copied articles are scientific studies useful to the requesters in their work. On both sides—library and requester—scientific progress, untainted by any commercial gain from the reproduction, is the hallmark of the whole enterprise of duplication. There has been no attempt to misappropriate the work of earlier scientific writers for forbidden ends, but rather an effort to gain easier access to the material for study and research. This is important because it is settled that, in general, the law gives copying for scientific purposes a wide scope. …
2. Both libraries have declared and enforced reasonably strict limitations which, to our mind, keep the duplication within appropriate confines. The details are set forth in Part I supra, and in our findings. Both institutions normally restrict copying on an individual request to a single copy of a single article of a journal issue, and to articles of less than 50 pages. Though exceptions are made, they do not appear to be excessive, unwarranted, or irrational. For instance, though on occasion one person was shown to have ordered or received more than one photocopy of the same article, the second copy was for a colleague’s use or to replace an illegible or undelivered copy. Some care is also taken not to have excessive copying from one issue or one volume of the periodical. While a certain amount of duplication of articles does, of course, occur, it does not appear to be at all heavy. There is no showing whatever that the recipients use the libraries’ photocopying process to sell the copies or distribute them broadly.2.
NIH responds only to requests from its own personnel, so that its entire photoduplication system is strictly “inhouse”—in the same way that a court’s library may supply a judge of that court with a copy of a law journal article or a reported decision. NLM fulfills requests more generally but it has adopted the practice of not responding (outside of the Government) where the article appears in a recent (preceding 5 years) issue of a periodical on its “widely-available list”. The result is that the duplication of recent issues of generally available journals is kept within the Government, and distribution to the larger medical public is limited to older, less available issues and to journals which are harder to obtain from medical libraries. It is a fair inference, supported by this record, that at the very least in the latter classes the demand has been inadequately filled by reprints and the publisher’s sale of back issues. See, also, Part III, 4, infra. In those instances not covered by the “five year” policy, the impression left by the record is that, on the whole, older rather than current articles were usually requested.
Brushing aside all such breakdowns, plaintiff points to the very large number, in absolute terms, of the copies made each year by the two libraries. We do not think this decisive. In view of the large numbers of scientific personnel served and the great size of the libraries—NIH has over 100,000 volumes of journal materials alone, and NLM is currently binding over 18,000 journals each year—the amount of copying does not seem to us to have been excessive or disproportionate. The important factor is not the absolute amount, but the twin elements of (i) the existence and purpose of the system of limitations imposed and enforced, and (ii) the effectiveness of that system to confine the duplication for the personal use of scientific personnel who need the material for their work, with the minimum of potential abuse or harm to the copyright owner. The practices of NIH and NLM, as shown by the record, pass both of these tests, despite the large number of copies annually sent out.
Without necessarily accepting the full sweep of the concept that the library is nothing more than the individual requester’s ministerial agent, we do agree that the NIH and NLM systems, as described in the evidence, are close kin to the current Library of Congress policy, see note 16, infra, of maintaining machines in the library buildings so that readers can do their own copying. The principal extension by NLM and NIH is to service requesters who cannot conveniently come to the building, as well as out-of-town libraries. But the personal, individual focus is still present. The reader who himself makes a copy does so for his own personal work needs, and individual work needs are likewise dominant in the reproduction programs of the two medical libraries—programs which are reasonably policed and enforced.
3. We also think it significant, in assessing the recent and current practices of the two libraries, that library photocopying, though not of course to the extent of the modern development, has been going on ever since the 1909 Act was adopted. … In 1935 there was a so-called “gentlemen’s agreement” between the National Association of Book Publishers (since defunct and the Joint Committee on Materials for Research (representing the libraries), stating in part: “A library * * * owning books or periodical volumes in which copyright still subsists may make and deliver a single photographic reproduction * * * of a part thereof to a scholar representing in writing that he desires such reproduction in lieu of loan of such publication or in place of manual transcription and solely for the purposes of research * * *.” Though this understanding discountenanced photoduplication of an entire book it was regularly construed as allowing copying of articles. There have been criticisms of this pact, and we cite it, not as binding in any way on plaintiff or any other publisher, or as showing universal recognition of “single” photocopying, but as representing a very widely held view, almost 40 years ago, of what was permissible under the 1909 statute.
There is other evidence that, until quite recently, library photocopying was carried on with apparent general acceptance. …
The fact that photocopying by libraries of entire articles was done with hardly any (and at most very minor) complaint, until about 10 or 15 years ago, goes a long way to show both that photoduplication cannot be designated as infringement per se, and that there was at least a time when photocopying, as then carried on, was “fair use.” There have been, of course, considerable changes in the ease and extent of such reproduction, and these developments bear on “fair use” as of today, but the libraries can properly stand on the proposition that they photocopied articles for many years, without significant protest, and that such copying was generally accepted until the proliferation of inexpensive and improved copying machines, less than two decades ago, led to the surge in such duplication. The question then becomes whether this marked increase in volume changes a use which was generally accepted as “fair” into one which has now become “unfair.”
4. There is no doubt in our minds that medical science would be seriously hurt if such library photocopying were stopped. We do not spend time and space demonstrating this proposition. It is admitted by plaintiff and conceded on all sides. … The supply of reprints and back numbers is wholly inadequate; the evidence shows the unlikelihood of obtaining such substitutes for photocopies from publishers of medical journals or authors of journal articles, especially for articles over three years old. It is, moreover, wholly unrealistic to expect scientific personnel to subscribe regularly to large numbers of journals which would only occasionally contain articles of interest to them. Nor will libraries purchase extensive numbers of whole subscriptions to all medical journals on the chance that an indeterminate number of articles in an indeterminate number of issues will be requested at indeterminate times. The result of a flat proscription on library photocopying would be, we feel sure, that medical and scientific personnel would simply do without, and have to do without, many of the articles they now desire, need, and use in their work.
5. Plaintiff insists that it has been financially hurt by the photocopying practices of NLM and NIH, and of other libraries. The trial judge thought that it was reasonable to infer that the extensive photocopying has resulted in some loss of revenue to plaintiff and that plaintiff has lost, or failed to get, “some undetermined and indeterminable number of journal subscriptions (perhaps small)” by virtue of the photocopying. He thought that the persons requesting photocopies constituted plaintiff’s market and that each photocopy user is a potential subscriber “or at least a potential source of royalty income for licensed copying.” …
The record made in this case does not sustain that assumption. Defendant made a thorough effort to try to ascertain, so far as possible, the effect of photoduplication on plaintiff’s business, including the presentation of an expert witness. The unrefuted evidence shows that (a) between 1958 and 1969 annual subscriptions to the four medical journals involved increased substantially (for three of them, very much so), annual subscription sales likewise increased substantially, and total annual income also grew; (b) between 1959 and 1966, plaintiff’s annual taxable income increased from $272,000 to $726,000, fell to $589,000 in 1967, and in 1968 to $451,000; (c) but the four journals in suit account for a relatively small percentage of plaintiff’s total business and over the years each has been profitable (though 3 of them show losses in particular years and in all years the profits have not been large, varying from less than $1,000 to about $15,000, some of which has been shared with the sponsoring medical societies); and (d) plaintiff’s business appears to have been growing faster than the gross national product or of the rate of growth of manpower working in the field of science. Defendant’s expert concluded that the photocopying shown here had not damaged plaintiff, and may actually have helped it. The record is also barren of solid evidence that photocopying has caused economic harm to any other publisher of medical journals.
Plaintiff has never made a detailed study of the actual effect of photocopying on its business, nor has it refuted defendant’s figures. It has relied for its assumption (in the words of the chairman of its board) on “general business common sense and things that you hear from subscribers, librarians and so forth.”
…
To us it is very important that plaintiff has failed to prove its assumption of economic detriment, in the past or potentially for the future. One of the factors always considered with respect to “fair use,” see supra, is the effect of the use on the owner’s potential market for the work. This record simply does not show a serious adverse impact, either on plaintiff or on medical publishers generally, from the photocopying practices of the type of NIH and NLM. In the face of this record, we cannot mechanically assume such an effect, or hold that the amount of photoduplication proved here “must” lead to financial or economic harm. This is a matter of proof and plaintiff has not transformed its hypothetical assumption, by evidence, into a proven fact.
In this connection it is worth noting that plaintiff does not have to concern itself, with respect to these journals, with authors or medical societies who are interested in a financial return. The authors, with rare exceptions, are not paid for their contributions, and those societies which share profits do not press for greater financial benefits. Indeed, some of the authors of the copied articles involved in this case testified at the trial that they favored photo-copying as an aid to the advancement of science and knowledge.
6. Added to the powerful factors we have been considering is another (already suggested by the discussion in Part II, supra)—the grave uncertainty of the coverage of “copy” in Section 1 of the 1909 Act and the doubt whether it relates at all to periodicals. The latitude for “fair use” is of course lessened to the extent Congress has been explicit in spelling out protection to the copy-right owner. But Congress has, up to now, left the problem of photocopying untouched by express provision and only doubtfully covered to any extent by the generalizations of Section 1. … That being so, we think that, in evaluating “fair use,” we should give the benefit of the doubt—until Congress acts more specifically—to science and the libraries, rather than to the publisher and the owner.
…
The truth is that this is now preeminently a problem for Congress: to decide the extent photocopying should be allowed, the questions of a compulsory license and the payments (if any) to the copyright owners, the system for collecting those payments (lump-sum, clearinghouse, etc.), the special status (if any) of scientific and educational needs. …The theme of this subpart 6 of Part III of the opinion is that, on balance and on this record, thumb’s up seems to us less dangerous to the varying interests at stake during the period which remains before Congress definitively takes hold of the subject.
7. The revision of the 1909 Act is now under consideration and has been for several years. The House of Representatives passed a bill in the 90th Congress (in April 1967), but the Senate has not acted. In its report on the bill which the House adopted (H.R.Rep. No. 83, 90th Cong., 1st Sess.), the House Committee on the Judiciary discussed the existing doctrine of “fair use” at some length (pp. 29-37). We cite these comments, not as binding on us, but as the official views on the extent of “fair use” of the committee of the House of Representatives with cognizance over copyright; as such, they are and should be influential.
…
We read this report, as a whole, as recognizing affirmatively that, under the existing law, library photocopying can be “fair use” in proper circumstances, and as leaving the determination of whether the particular circumstances are proper ones to an evaluation “of all the applicable criteria and the facts of the particular case.” That is, of course, the overall standard we are using, and therefore we consider our approach to be consistent with that of the Committee. Although one cannot say that the report places its sanction directly on the photocopying practices now before us, neither does it suggest or intimate that they are “unfair.” That question is left open. The report is nevertheless helpful because it indicates the correctness of our general approach, and also because it contradicts the concept, urged by plaintiff, that photocopying of an entire article is necessarily an infringement.
…
IV
Fusing these elements together, we conclude that plaintiff has failed to show that the defendant’s use of the copyrighted material has been “unfair,” and conversely we find that these practices have up to now been “fair.” There has been no infringement.
…
[W]e underline again the need for Congressional treatment of the problems of photocopying. … Hopefully, the result in the present case will be but a “holding operation” in the interim period before Congress enacts its preferred solution.
On this record and for these reasons, we hold the plaintiff not entitled to recover and dismiss the petition.
Commentary
Intellectual property (IP), copyright in particular, touches nearly every aspect of librarianship but is uniquely visible in interlibrary loan, also known as resource sharing. While you may not be a lawyer (the authors are not) a basic understanding of the law and its requirements for libraries is essential both to provide quality services and to provide those services within the law.
Williams & Wilkins Case
Williams & Wilkins Co. v. United States, 487 F.2d 1345 (Ct. Cl. 1973) was a court case decided in the federal Court of Claims and later affirmed by the Supreme Court just a few years before the enactment of Copyright Act of 1976. This case set the stage for the codification of the doctrine of Fair Use in Section 107, along with Section 108, the exception to the exclusive rights of copyright owners that allows libraries and archives to make copies and distribute them under certain circumstances.
The Williams & Wilkins Company was a publisher of medical journals that filed a lawsuit against the U.S. Department of Health, Education and Welfare, alleging it had infringed Williams & Wilkins’ copyrights through the libraries of both the National Institutes of Health (NIH) and the National Library of Medicine, which had made and distributed copies from four of its journals. The libraries made copies for their own patrons and in the case of NLM, for other libraries, at no charge and on a no-return basis. Among the self-imposed limitations, they had limited copying to one article per journal issue, with an upper limit of 50 pages, although exceptions occasionally were made. No copying was made from a list of journals that were considered “widely available,” nor from issues newer than five years. These limitations were built into internal library copying procedures, and aligned with the General Interlibrary Loan Code agreed upon by interlibrary loan practitioners at that time. They represented a good faith effort to be fair, to supply readers with research information while respecting the rights of copyright owners.
The court found their copying to be fair with no infringement but urged Congress to enact a solution to the problem of photocopying (487 F.2d 1345, 1363). Reading through the libraries’ procedures shared in the case, one can readily observe how Section 108 and the subsequent CONTU “Rule of Five” guidelines took shape.
Reproduction by Libraries and Archives
As established in Section 106 of the U.S. Copyright Law, the copyright owner is granted a set of exclusive rights, frequently referred to as a “bundle.” Subsequent sections, including 107, 108, and 109, break up this bundle of rights, allowing others to make use of copyrighted works. These sections allow libraries to function as we know them, lending and borrowing library materials and making copies of copyrighted works.
Section 108, which addresses reproduction by libraries and archives, was first enacted as part of the Copyright Act of 1976 (ARL, Copyright Timeline). It allows libraries and archives to make and distribute copies under certain limitations for specified purposes, including for preservation or replacement. For library users, the library or archives is permitted to make a single copy of a work within limitations. The copies made must be without any intention of direct or indirect commercial advantage. The libraries or archives must be open to the public or otherwise made available to people without an institutional affiliation doing research in a specialized area. Copies made must become the property of the user, and the library must have had no notice that the copies will be used for any purpose other than private study, scholarship, or research.
Library users may make their own copies on unmonitored library photocopiers or other scanning and reproduction equipment. Libraries must inform library users of the limitations of copyright law with signage. Common wording for such signage is as follows:
Notice: The copyright law of the United States (Title 17, U.S. Code) governs the making of photocopies or other reproductions of copyrighted material. The person using this equipment is responsible for any infringement.
This required signage is a bare minimum; libraries may find it useful to provide users with additional signage or copyright educational materials and information. Not all materials held in libraries are under copyright; some materials are in the public domain and may be freely copied and distributed. Public domain materials will be discussed below.
If the library makes copies for its own users (document delivery) or obtains copies from other libraries for its users (interlibrary loan) the library or archives must display prominently, on request forms and in the place where the orders are taken, a copyright notice warning for which the text is prescribed in the Code of Federal Regulations. This code is subject to yearly revision:
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.
With the advent of modern interlibrary loan management systems featuring web-based request forms, the place where the orders are taken and the order forms themselves are the same. To abide by the law, these have an option to “Agree” to the copyright language before the order can be placed in the online system. The copies made to fulfill these requests must include the copyright information from the work itself or, if that cannot be located, otherwise labeled with a notice that the work may be protected by copyright. Electronic document delivery systems commonly carry a copyright notice on a separate page sent along with the scan of a journal article or other copyrighted work.
Copies of an entire work or substantial portion of a work are permitted, as well, provided that after a reasonable search, it is determined that a copy of the work cannot be obtained at a fair price. “Reasonable search” and “fair price” are not defined in the law, however, leaving it open to a flexible situational approach and market fluctuations.
Under the same limitations, Section 108 of the copyright law allows interlibrary loan, known as resource sharing, to function by providing valuable services to library users. However, copies borrowed under interlibrary loan should not be “in such aggregate quantities as to substitute for a subscription to or purchase of such work.” Of course, no library can subscribe to or purchase and store each journal possibly needed by its users which raises the question of what “aggregate quantities” of journal article borrowing substitute for an institutional journal subscription or purchase.
When the Copyright Act of 1976 was enacted, and Section 108 was new, Congress sought to respond to this question by assigning the task of interlibrary loan guideline creation to the CONTU (Commission on New Technological Uses of Copyrighted Works), a group of publishers, lawyers, librarians, and other stakeholders. CONTU studied journal subscription costs, library subscription patterns, and the state of the field of scholarly communication as well as findings from the Williams & Wilkins case to create the CONTU guidelines (CONTU Final Report, 1978). These guidelines, issued in 1978, are often referred to as “Rule of Five,” “Suggestion of Five,” “The 5/5 Rule,” or “The Fair Use Five.” In part, they stipulated that libraries were permitted to borrow up to five articles from any single journal title published within the past five calendar years. In calculating the point at which a library would typically start a subscription to a journal:
…such historical data as average annual subscription costs ranging from $13 to $108, depending on discipline, and copyright fees around $1.25 per article. The rule of five, for instance, was developed with the understanding that “[a] typical crossover point for the add/drop decision is four or five uses per journal title per year…with a subscription price of forty dollars and external lending fees of eight dollars.” (Oakley, Quilter, and Benson, 2020)
Under the CONTU guidelines, after the fifth article from a journal title published within the most recent five years is received, borrowing libraries are responsible for finding another supply option for the sixth article and beyond, or wait to borrow again until the beginning of the next calendar year. The latter option obviously hinders the work of researchers, creating a first-come, first-served scenario each year. Other supply options include starting a subscription, paying royalties on articles borrowed in excess of the guidelines, purchasing an article using a commercial document delivery service (which include copyright royalties as part of the service fee), referring the library user to a nearby library that owns or licenses a subscription (library licenses typically permit walk-in use of electronic materials), or looking to fair use as an alternative. By far, the most common approach has been paying royalties on excess copies.
Royalties
Royalties are fees paid for use of copyright-protected content. In the resource sharing context, this is by law, articles borrowed in excess of “such aggregate quantities as to substitute for a subscription to or purchase.” Under CONTU, this is the “Rule of Five.” Fees are set by the publisher and journal title. Royalties vary greatly with the highest fees generally associated with medical and scientific content, especially technology. After the 1976 Copyright Act was enacted, publisher and author organizations created what became known as the Copyright Clearance Center (CCC) to coordinate and collect royalties (Minnow and Hirtle, 2014). The CCC remains the most common way to pay royalties, and functionality for copyright tracking and payment is built into modern resource sharing systems including the ILLiad resource sharing management software licensed by OCLC, Inc.
Libraries have different approaches to royalties. Some libraries pass these charges, or a percentage of them, along to their users as a service fee whereas others cover all resource sharing expenses. These choices are a matter of institutional philosophy, not a matter of law. Library users place requests with no knowledge of copyright limits or associated royalties; therefore, libraries are advised to develop policies on when, if and, how much they are willing to pay.
Tracking and Communication
In addition to the “Rule of Five,” CONTU also created some standard resource sharing community practices followed to this day, to indicate and communicate copyright compliance. Borrowing libraries are responsible for all tracking of journal article requests by calendar year for copyright purposes. Borrowing libraries are responsible for keeping records of all requests, both filled and unfilled, for three calendar years, which happens to be the statute of limitations in a civil copyright lawsuit. State record retention laws may have other requirements. Borrowing libraries are also responsible for indicating on each request if they are following the CONTU “Rule of Five” guidelines (CCG) or the copyright law itself (CCL).
Likewise, lending libraries are responsible for checking each request to ensure the borrowing library indicated on each journal article request either CCG or CCL. If either the CCG or CCL indicator is missing from the request, the lending library is obliged to refuse to fill the request. However, the lending library is not an arbiter of whether or not CCG or CCL has been correctly applied by the borrowing library, and lending libraries do not track requests for purposes of copyright compliance. Lending libraries also are responsible for ensuring the copy they distribute includes the copyright notice from the work or including a legend if the notice cannot be located. Again, although these practices started under CONTU, they remain standard community practices to this day. Additional standard practices can be found in Interlibrary Loan Code for the United States, maintained by the Sharing and Transforming Access to Resources Section (STARS) section of the Reference and User Services Association (RUSA), a division of the American Library Association (ALA).
Alternatives to the CONTU “Rule of Five”
Included in the CONTU Final Report was that the “Rule of Five” was to be evaluated after five years; this never happened. The “Rule of Five” has remained as a de facto standard for many libraries. However, it is important to remember it is a guideline and not law. The depth and breadth of scholarly communication, subscription prices, and library budgets have changed enormously since that time. Journal subscription prices for libraries have exceeded the rate of inflation, and royalties for articles reported to the Copyright Clearance Center have increased over the years as well. Libraries may need to evaluate their contemporary subscription and interlibrary borrowing patterns to see how they currently relate to the law. Virtually all libraries have been faced with journal cancellation projects over the years; criteria for subscription decisions have adjusted accordingly. The question of the legitimacy of the “Rule of Five” in today’s environment is currently a debated one among resource sharing practitioners and copyright experts in libraries. The current Interlibrary Loan Code for the United States specifies in section 4.8 that requesting libraries “Comply with U.S copyright law (Title 17, U.S. Code) and be aware of related guidelines for copy requests.” The CONTU “Rule of Five” is no longer indicated as a community standard.
As a possible replacement for the “Rule of Five,” a library could calculate its own “crossover points” for subscriptions, for example, using a per-article combination of borrowing costs (including staff labor and charges assessed by lending libraries) and copyright royalties as paid to the Copyright Clearance Center (Quilter, Oakley, and Benson 2020). The Ohio State University has implemented an annual procedure in which borrowing is examined annually by journal title, number of patrons borrowing from that title, subscription and royalty prices, patron feedback, and more (Ohio State University, 2018). Another alternative for libraries may be to simply adjust the “Rule of Five” to a “Rule of X,” where X is a higher number than five, with or without a corresponding adjustment to the age of the journal article, somewhat akin to embargo periods commonly seen in electronic journal publishing. Other factors to consider are outlined in the ARL White Paper Modern Interlibrary Loan Practices: Moving beyond the CONTU Guidelines (Oakley, Quilter, and Benson, 2020).
Fair use may apply to resource sharing in some circumstances such as special projects or in cases of visiting scholars with teaching or research interests not within the usual research or curricular scope of the institution. The Fair Use Savings Clause is enumerated in Section 108(f)(4), “Nothing in this section… in any way affects the right of fair use as provided by section 107.” This allows libraries to consider invoking Section 107 for certain interlibrary transactions which do not precisely fit what other parts of the copyright law allow, specifically Section 108. Tools that can be used to assess whether or not a use might be fair are included in the resource list below. These tools incorporate examples and language used in infringement cases. See also the Copyright and Libraries: Fair Use chapter in this textbook at mlpp.pressbooks.pub/librarylaw/chapter/copyright-fair-use/#commentary.
Resource sharing practitioners are advised to collaborate with library administration, collection development personnel, and institutional counsel to develop a manageable approach to compliance with the law that fit in with the high-volume, fast-paced daily routines typical of interlibrary loan.
Contract vs. purchase
As mentioned briefly at the beginning of the chapter, Section 109 of the U.S. Copyright Law contains what is known as the First Sale Doctrine, which allows lawfully-acquired physical materials to be loaned not only to library users but also between libraries for their users. However, nearly all of the digital/online resources available in your library are not purchased but licensed under contracts. The terms of your contract govern your rights for those products and services. It is not just possible but probable that your ability to copy and share content is far more restricted than would be allowed under copyright.
Licenses make electronic content more akin to rental than ownership, and licenses frequently do not allow for borrowing, lending, or transfer of ownership, particularly for electronic books. Lending libraries are responsible for ensuring that journal license agreements allow for interlibrary lending of journal articles and under what conditions. Resource sharing practitioners are encouraged to work with collection management and electronic licensing staff to make sure those licenses allow for interlibrary loan of articles. This is not only important for individual libraries but also for the survival of resource sharing within libraries. It is vital that license agreements refer to copyright law and not to CONTU “Rule of Five” or other guidelines. For further discussion, see the Licensing Electronic Resources chapter, Interlibrary Loan section, in this textbook at: mlpp.pressbooks.pub/librarylaw/chapter/licensing-electronic-resources/
Public Domain–not protected by copyright, royalty free
The Public Domain is comprised consists of works, both creative and factual, that either cannot be copyrighted, have aged out of copyright protection, or have been intentionally put in the public domain by the creator. By law (Title 17 US Code, Section 105) works published by the U.S. Government are in the public domain unless otherwise indicated by a copyright statement. Works in the public domain can be copied, distributed and reworked without payment to the creator. That doesn’t mean it should be used without attribution, that’s plagiarism, but it means that the exclusive rights of publication, distribution, and making derivative works do not apply.
When considering the copying/scanning of some items, particularly older books, resource sharing practitioners might look for the possibility that they may have passed into the public domain. As of 2021, works published in 1925 or earlier have aged into the public domain. Many works published between 1925 and 1963 are in the public domain due to the copyright owners’ failure to comply with formalities required by law at that time. Whereas discovery of the latter requires some research–for copyright statements, registrations, and renewals–it can help serve patron and preservation needs. Please refer to the chart created by Peter B. Hirtle, Copyright Term and the Public Domain in the United States.
Open Access and Creative Commons Licenses
Since the early 1990’s the Open Access movement has been building in scholarly publishing. Some journals and books are produced by organizations or associations without the assistance of a traditional publishing house, and some traditional publishers have made some publications Open Access, sometimes by charging the author(s) a fee. In either case, Open Access means that the material is free of charge to the reader.
Open Access materials are protected by copyright, however, and carry a license informing the reader how the material can be used. Often, the publisher applies a Creative Commons license to the material; some commercial publishers have written their own licenses specifying permitted uses. Resource Sharing practitioners can leverage Open Access materials to help fill interlibrary loan and document delivery requests because frequently enough, researchers do not discover Open Access materials on their own. Tools created by Open Access Button, including InstantILL, help with discovery and fulfillment of article requests.
When filling requests with Open Access materials, resource sharing practitioners must be aware of a few caveats. Sometimes the requester of an article already has an Open Access version; sometimes these are pre-prints, which are the article versions that have not yet been peer-reviewed, or they are post-prints, which have been edited after peer-review, but are not formatted by the publisher. In either case, the requester may need the final, publisher’s version of the article. Resource sharing practitioners need to take care not to pay publisher royalties on Open Access materials made available by commercial publishers, sometimes known as Gold Open Access.
Interlibrary Loan of Electronic Books
Lending of electronic journal articles is usually permitted by license agreement; likewise, electronic scanning, transmission, and delivery through interlibrary loan management systems has become accepted practice over the course of the last 30 years. However, lending of electronic books between libraries has lagged behind. Unlike physical books, which may be loaned because of the First Sale Doctrine (Section 109), ebooks are licensed and subject to license terms. Lending of ebooks also has been hindered by the digital rights management (DRM) built into the ebook platforms, coupled with a lack of interoperability. Although some smaller endeavors with ebook interlibrary loan have met with some success, it has failed to become widespread standard practice. In short, recall of the loan of an ebook must be made possible to ensure the exclusive rights of the copyright owner to make and distribute copies.
One emerging endeavor is Controlled Digital Lending (CDL). CDL allows libraries to have printed books scanned and stored in the Internet Archive. Books are loaned, either to patrons or between libraries, on a one-copy to one-loan ratio. Participating libraries do not loan more books than copies owned. Books are given a due date after which they are no longer available to the patron or library, and other technological protections prevent further copying and distribution. Although this project does not serve as a replacement for licensed ebooks, it does open up electronic lending to older materials that are not otherwise available electronically and may keep deteriorating materials available to readers. This approach has been analyzed by legal experts in libraries, and based on recent case law, it is believed to be well within the parameters of copyright law (Hansen and Courtney, 2018).
Scenarios
Scenario 1
You are the Borrowing Manager for Interlibrary Loan at a small but renowned liberal arts college in a small town. A professor would like three articles from the same issue of a journal which your library canceled seven years ago. It turns out it is a “special issue” on a topic she needs for her own research. Outline three different ways in which you can fulfill this request while following U.S. Copyright Law.
Scenario 2
You are the Head of Resource Sharing at a large University Library in the Midwestern United States. You get a request for a book published in 1957. The book is small and is 42 pages long. The requesting institution’s library is overseas and unfortunately in a country with which you have had experiences with materials being lost in transit. You are tempted to scan the book in its entirety and send it electronically. Not only would this be faster for the receiving library, but it would save shipment charges and eliminate the chance of loss. What parts of U.S. copyright law might support this?
Scenario 3
You are the Interlibrary Loan Manager for a smaller private University in a large city on the east coast of the United States. Your department has received an unusually large quantity of interlibrary loan requests from a student in the School of Library and Information Science. These requests are for articles from five top journals in a subject area for which your University does not have an academic program and therefore does not have subscriptions for those journals. Some of the articles are recent and some of them date back into the 1970s. You later learn that the student’s thesis project is a textual analysis, and he will be finished next semester. How do you handle copyright clearances for the more recently-published articles requested? How might this differ from how you handle copyright for requests from a recently-canceled journal that supports a current University program?
Scenario 4
Your small, public university has always had its budgetary limitations. Your library charges back its patrons for any interlibrary loan charges assessed by other libraries as well as any royalties that need to be paid on interlibrary borrowing over the CONTU “Rule of Five” to which you adhere. Your library has been providing services to a visiting professor. This is her last term on campus. She needs six recent articles from a specialized engineering journal. This journal is in a field of engineering in which your university does not offer any courses and would be out of the scope of your library’s collection. During your seven years as ILL manager, you have never requested any articles from this title. With these circumstances, would you feel comfortable making an exception to your normal procedures? What parts of the law might support this?
Statutory Law: text of section 108
108. Limitations on exclusive rights: Reproduction by libraries and archives
(a) 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 than 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;
(2) the collections of the library or archives are (i) open to the public, or (ii) available not only to researchers affiliated with the library or archives or with the institution of which it is a 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.
(b) The rights of reproduction and distribution under this section apply to three copies or phonorecords of an unpublished work duplicated solely for purposes of preservation and security or for deposit for research use in another library or archives of the type described by clause (2) of subsection (a), if—
(1) the copy or phonorecord reproduced is currently in the collections of the library or archives; and
(2) any such copy or phonorecord that is reproduced in digital format is not otherwise distributed in that format and is not made available to the public in that format outside the premises of the library or archives.
(c) The right of reproduction under this section applies to three copies or phonorecords of a published work duplicated solely for the purpose of replacement of a copy or phonorecord that is damaged, deteriorating, lost, or stolen, or if the existing format in which the work is stored has become obsolete, if—
(1) the library or archives has, after a reasonable effort, determined that an unused replacement cannot be obtained at a fair price; and
(2) any such copy or phonorecord that is reproduced in digital format is not made available to the public in that format outside the premises of the library or archives in lawful possession of such copy.
For purposes of this subsection, a format shall be considered obsolete if the machine or device necessary to render perceptible a work stored in that format is no longer manufactured or is no longer reasonably available in the commercial marketplace.
(d) The rights of reproduction and distribution under this section apply to a copy, made from the collection of a library or archives where the user makes his or her request or from that of another library or archives, of no more than one article or other contribution to a copyrighted collection or periodical issue, or to a copy or phonorecord of a small part of any other copyrighted work, if—
(1) the copy or phonorecord becomes the property of the user, and the library or archives has had no notice that the copy or phonorecord would be used for any purpose other than private study, scholarship, or research; and
(2) the library or archives displays prominently, at the place where orders are accepted, and includes on its order form, a warning of copyright in accordance with requirements that the Register of Copyrights shall prescribe by regulation.
(e) The rights of reproduction and distribution under this section apply to the entire work, or to a substantial part of it, made from the collection of a library or archives where the user makes his or her request or from that of another library or archives, if the library or archives has first determined, on the basis of a reasonable investigation, that a copy or phonorecord of the copyrighted work cannot be obtained at a fair price, if—
(1) the copy or phonorecord becomes the property of the user, and the library or archives has had no notice that the copy or phonorecord would be used for any purpose other than private study, scholarship, or research; and
(2) the library or archives displays prominently, at the place where orders are accepted, and includes on its order form, a warning of copyright in accordance with requirements that the Register of Copyrights shall prescribe by regulation.
(f) Nothing in this section—
(1) shall be construed to impose liability for copyright infringement upon a library or archives or its employees for the unsupervised use of reproducing equipment located on its premises: Provided, That such equipment displays a notice that the making of a copy may be subject to the copyright law;
(2) excuses a person who uses such reproducing equipment or who requests a copy or phonorecord under subsection (d) from liability for copyright infringement for any such act, or for any later use of such copy or phonorecord, if it exceeds fair use as provided by section 107;
(3) shall be construed to limit the reproduction and distribution by lending of a limited number of copies and excerpts by a library or archives of an audiovisual news program, subject to clauses (1), (2), and (3) of subsection (a); or
(4) in any way affects the right of fair use as provided by section 107, or any contractual obligations assumed at any time by the library or archives when it obtained a copy or phonorecord of a work in its collections.
(g) The rights of reproduction and distribution under this section extend to the isolated and unrelated reproduction or distribution of a single copy or phonorecord of the same material on separate occasions, but do not extend to cases where the library or archives, or its employee—
(1) is aware or has substantial reason to believe that it is engaging in the related or concerted reproduction or distribution of multiple copies or phonorecords of the same material, whether made on one occasion or over a period of time, and whether intended for aggregate use by one or more individuals or for separate use by the individual members of a group; or
(2) engages in the systematic reproduction or distribution of single or multiple copies or phonorecords of material described in subsection (d): Provided, That nothing in this clause prevents a library or archives from participating in interlibrary arrangements 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 aggregate quantities as to substitute for a subscription to or purchase of such work.
(h)(1) For purposes of this section, during the last 20 years of any term of copyright of a published work, a library or archives, including a nonprofit educational institution that functions as such, may reproduce, distribute, display, or perform in facsimile or digital form a copy or phonorecord of such work, or portions thereof, for purposes of preservation, scholarship, or research, if such library or archives has first determined, on the basis of a reasonable investigation, that none of the conditions set forth in subparagraphs (A), (B), and (C) of paragraph (2) apply.
(2) No reproduction, distribution, display, or performance is authorized under this subsection if—
(A) the work is subject to normal commercial exploitation;
(B) a copy or phonorecord of the work can be obtained at a reasonable price; or
(C) the copyright owner or its agent provides notice pursuant to regulations promulgated by the Register of Copyrights that either of the conditions set forth in subparagraphs (A) and (B) applies.
(3) The exemption provided in this subsection does not apply to any subsequent uses by users other than such library or archives.
(i) The rights of reproduction and distribution under this section do not apply to a musical work, a pictorial, graphic or sculptural work, or a motion picture or other audiovisual work other than an audiovisual work dealing with news, except that no such limitation shall apply with respect to rights granted by subsections (b), (c), and (h), or with respect to pictorial or graphic works published as illustrations, diagrams, or similar adjuncts to works of which copies are reproduced or distributed in accordance with subsections (d) and (e).
Works Consulted
Association of Research Libraries. Copyright Timeline. www.arl.org/copyright-timeline/ (accessed 1/12/2021).
Crews, Kenneth D. Copyright law for librarians and educators: Creative strategies and practical solutions. American Library Association, 2020.
Hansen, David R., and Kyle K. Courtney. “A White Paper on Controlled Digital Lending of Library Books.” LawArXiv, 24 Sept. 2018. osf.io/preprints/lawarxiv/7fdyr/ (accessed 1/15/2021).
Minnow, Mary, and Peter Hirtle, “Was CCC formed ‘at the suggestion of Congress’?” LibraryLaw Blog. December 2014. blog.librarylaw.com/librarylaw/2014/12/was-the-ccc-formed-at-the-suggestion-of-congress.html (accessed 1/18/2021).
National Commission on New Technological Uses of Copyrighted Works. “Chapter 4. Machine Reproduction – Photocopying.” The CONTU Final Report, July 31, 1978. perma.cc/7NNG-S78R (accessed 1/12/2021).
Oakley, Meg, Laura Quilter, and Sara Benson. Modern Interlibrary Loan Practices: Moving beyond the CONTU Guidelines. Washington, DC: Association of Research Libraries, August 31, 2020. doi.org/10.29242/report.contu2020.)
Ohio State University. Interlibrary Loan Copyright Compliance Policy. December 2018. library.osu.edu/document-registry/docs/1023/stream (accessed 2/1/2021).
Quilter, Laura, Meg Oakley, and Sara Benson, “White Paper Encourages Libraries to Reevaluate Use of CONTU Guidelines in Interlibrary Loan.” Association of Research Libraries Blog, August 31, 2020. www.arl.org/blog/white-paper-encourages-libraries-to-reevaluate-use-of-contu-guidelines-in-interlibrary-loan/ (accessed 12/31/2020).
Warnings of copyright for use by certain libraries and archives. §201.14 Code of Federal Regulations www.ecfr.gov/ (accessed 1/12/2021).
Websites
Center for the Study of the Public Domain All things Public Domain. Excellent resource for current information and issues involving the Public Domain including suggestions for reading and videos. This site also features Public Domain Day–major works coming into the public domain.
Controlled Digital Lending by Libraries Controlled Digital Lending (CDL) is described, along with the legal analysis behind it. This site contains an FAQ and a link for interested libraries to participate in Open Libraries.
Copyright Clearance Center The CCC provides a central service to find the cost of royalty for a specific journal and provides a means of payment. This is a valuable resource for libraries for determining and paying royalties. The authors recommend using other sites for information on Fair Use and limits on copying.
Creative Commons Explanations, icons and abbreviations for the different forms of licenses.
LII / Legal Information Institute Cornell University, this is an excellent source for understanding Federal and Constitutional law. Full-text of legal materials is available.
SPARC Open Access, Open Data, Open Education. SPRAC sponsors Open Access Week.
Stanford Copyright and Fair Use Center Excellent information about copyright and fair use including current issues. This site also includes an overview of landmark cases. (Summaries of Fair Use Cases – Copyright Overview by Rich Stim)
Sources for Open Access Content
Open Access is a growing movement, this list is a few of the most common resources. Individual libraries have created library guides that curate preprint and archive sites. Search for library guides open access [subject].
Directory of Open Access Journals DOAJ supports searching by article.
JSTOR Open and Free Content While not all of JSTOR is Open Access, a subset of JSTOR’s and Artstor’s is.
Pubmed Since 2008 the National Institutes of Health has required that research conducted with their grant money be made publicly available after a variable embargo period.
Scholar.google.com While not all the content indexed by Google Scholar is Open Access it is a good starting point for preprints, self-archived, and institutional archived articles.
Tools
- Interlibrary Loan Code for the United States – www.ala.org/rusa/guidelines/interlibrary
- Section 108 Spinner – librarycopyright.net/resources/spinner/index.html
- Fair Use Evaluator – librarycopyright.net/resources/fairuse/index.php
- Fair Use Checklist by Kenneth D. Crews and Dwayne K. Buttler – copyright.columbia.edu/basics/fair-use/fair-use-checklist.html. The PDF at bottom of the page is under CC BY and can be adapted for local use.
- Public Domain Slider – librarycopyright.net/resources/digitalslider/index.html
- Copyright Term and the Public Domain in the United States by Peter Hirtle – copyright.cornell.edu/publicdomain
- Full text of the U.S. Copyright Law – www.copyright.gov/title17/ or www.law.cornell.edu/uscode/text/17
- Code of Federal Regulations – www.govinfo.gov/app/collection/cfr
- Open Access Button for Libraries – openaccessbutton.org/libraries
Authors
Cindy Kristof
Cindy Kristof is Head of Copyright and Scholarly Communication and Associate Professor at Kent State University Libraries. In addition to providing copyright education and helping users with their fair use and permissions needs, she oversees the interlibrary loan, course reserves, digital projects, and institutional repository operations. Additionally, she serves as the OhioLINK Electronic Thesis and Dissertation (ETD) Administrator for Kent State and coordinates affordable learning/OER efforts for the Libraries. Her research interests include the right to be forgotten in the digital age, as well as copyright processing for digitization projects. She has a BA from The Ohio State University (1989) and an MLS from Kent State University (1995).
Collette Mak
Collette Mak (she/her/hers) is retired Faculty Emerita at University of Notre Dame. Prior to retirement, she worked as the Outreach and Scholarly Communications Librarian at University of Notre Dame (2008-2017), Product Manager at OCLC, Librarian at University of Wisconsin – Milwaukee, and Librarian at University of Michigan (1975-1980). She has an MLIS from the University of Michigan and a BA in Art History. In 2013, she received the Virginia Boucher/OCLC Distinguished ILL Librarian Award.
