Contract or Copyright? Using Electronic vs. Print Resources for Library Services GIL Users Group Meeting Macon State College May 19, 2005 Lisa A. Macklin 3L Georgia State University College of Law

Copyright Federal law § 107 Fair Use § 108 Reproduction by libraries and archives –ILL –Archival copies § 109 Effect of transfer of particular copy or phonorecord –First Sale Doctrine

Copyright Take away: –Libraries can develop one set of policies for providing services with print resources under Copyright law

Contracts State law What is a contract? –Allocation of risk –Freedom of contract How is a contract formed? –Two parties –Offer and acceptance

Contracts Take away: –Each contract will likely have different terms and conditions and some of these terms may be in conflict with existing library policies for providing services

Contract or Copyright? Which applies? –Electronic resources – Contract Terms and conditions of licenses determine appropriate use of electronic resources –Print resources – Copyright Copyright law determines appropriate use of print resources

Contract or Copyright? Why does it matter? –Contract terms between parties may supersede Copyright law and contract terms may be enforced ProCD, Inc. v. Zeidenberg 86 F. 3d 1447 (7 th Cir. 1996) (enforcement of shrinkwrap license under state law did not create rights equivalent to exclusive rights within general scope of copyright, and was not preempted by Copyright Act.) Bowers v. Baystate Technologies, Inc. 302 F.3d 1334 (Fed. Cir. 2003) (Copyright Act did not preempt Mr. Bowers contract claims)

Contract or Copyright? Impact on Library services –Print: library policies dictate services such as ILL and Reserves –Electronic: contracts dictate services such as ILL, Reserves and walk-in users

Contract or Copyright? Providing services from GALILEO resources (per Merryll Penson) –All of USG has access to GALILEO resources, so no need to provide ILL –Galileo resources may be used for reserves provided there is security (password, etc.) –General rule is that we dont lend GALILEO resources

Contract or Copyright? Linking to content vs. loading content –Linking Generally does not violate Copyright law Allowed in most contracts if authentication of users (there may other be restrictions) –Loading content May violate Copyright law (making a copy) May or may not be allowed by contract

Contract or Copyright? Example – ILL request for copy of article –Print: Library has print copy of article and provides ILL –Electronic: Library has contract with Project Muse which allows ILL Provide for interlibrary loan, under CONTU guidelines, facsimile images that are exact representations of the print journal pages or of printouts from the electronic database. These may be distributed in paper, fax, or digital form. (Project Muse Terms and Conditions)

Contract or Copyright? Example – ILL request for copy of article –Electronic: Library has a contract with JSTOR which allows ILL Licensee may use Materials that have been printed from the Database in Interlibrary Loan in accordance with the Copyright Act of the U.S. Only printed Materials, and not electronic copies of such Materials, may be used in Interlibrary Loan. (JSTOR license V )

Contract or Copyright? Example – request of faculty member to put article on E-Reserve –Print: Library has print and follows local policies for E-Reserve –Electronic: Library has a contract with Project Muse Provided that the copyright header attached to the article is retained, libraries and registered campus network users may: Store articles for reserve use in either paper or electronic form. (Project Muse Terms and Conditions)

Contract or Copyright? Example – Visitor is looking for an article –Print: Library has print copy of article and provides access based on local policies –Electronic: Library has a contract with Wiley Walk-in Users from the general public or business invitees may also be permitted by the Licensee to access the Electronic Journals from designated terminals within a Licensee-controlled I.P. address. These designated terminals shall be physically located on the Site in premises such as libraries or similar physical premises directly controlled by the Licensee. (Wiley Basic Access License Jan. 1, 2004)

Contract or Copyright? What if contract doesnt mention ILL, etc.? –Contract may be restrictive and allow only permitted uses specifically listed –Contract may be silent (contract neither permits nor prohibits use) Seek advice of your legal counsel

Contract or Copyright? Strategies for libraries –Implement separate policies for providing services from electronic resources –Negotiate licenses to include rights to provide services your library considers essential –Implement Electronic Resource Management System to record terms of licenses and make terms available to those providing services

Contract or Copyright? Take away: –Even though content may be identical in print and electronic version, your ability to use each version for services may be dramatically different. Services from print resources based on library policies (Copyright Law) Services from electronic resources based on contracts negotiated for those resources

Contract or Copyright? All quoted license terms above are from publisher web sites and may be different than the terms your library has negotiated – – – uments/sample_ballicense.pdfhttp://www3.interscience.wiley.com/spreadsheet_doc uments/sample_ballicense.pdf Additional information on license terms and licensing can be found at Liblicense –