Copyright & ILL Jessica Bowdoin 13th Annual VIVA Interlibrary Loan Community Forum 15 July 2011 Sweet Briar College Copyright & ILL Jessica Bowdoin Head, Interlibrary Loan, George Mason University (OCLC: VGM) In consultation with Claudia Holland, Copyright Officer, George Mason University Good afternoon. I am Jessica Bowdoin. Head of ILL at George Mason University. Today, we’re talking about Copyright & ILL. I also wanted to note that in preparing for this presentation today, I consulted with Mason’s Copyright Officer, Claudia Holland—who was not able to attend.

Disclaimer! The information in this presentation is not legal advice. I am not a lawyer. I am not interpreting or analyzing elements of the law. You should discuss your copyright practices with your institution’s copyright officer and/or legal counsel to insure that your institution is copyright compliant. The presentation may include interpretations offered by others.

Current Copyright Law & Guidelines Federal law, Title 17—Copyrights (created by Copyright Act of 19 Oct. 1976, effective Jan. 1978) National Commission on New Technological Uses of Copyrighted Works (CONTU) issued its report on 31 July 1978 Copyright law does change, ie: Digital Millennium Copyright Act of 1998 amended Section 108 The current copyright law… Because copyright law is so confusing, Congress created a commission to offer guidelines (way back in 1978). We’re still following those guidelines today. CONTU guidelines are not laws, they are guidelines. They basically say, “if you follow these guidelines, you SHOULD be okay.” But there’s no guarantee. Copyright law does change over time—which doesn’t necessarily make it any less confusing—with new legislation and new court cases.

Copyright law includes a lot of sections Copyright law includes a lot of sections. But the first important one, and the basic reason we have copyright law is to protect the rights of the copyright holder. Remember: the copyright holder is not necessarily the author (it’s often the publisher). This is a visual representation of the basic rights of copyright holders. As ILL departments in libraries, we’re most concerned about the protection of reproduction—because, that includes copies. So, how can we make copies if it’s a exclusive right of the copyright holder? Because there are some exceptions to the basic rights in copyright law too. We care about the ones for libraries that allow ILL to do its job—lend book and provide copies of items.

§ 109: a.k.a. “First Sale” Doctrine Allows libraries to purchase and lend copyrighted works* Ownership applies to the physical item, not the intellectual content* Does not apply to works licensed by contract* Section 109 is the section allowing libraries to purchase copyrighted works and then lend them to their own patrons and through ILL. *See Kristof, Cindy. “U.S. Copyright and Interlibrary Loan Practice.” Interlibrary Loan Practices Handbook (2011, 3rd ed.) 52.

§ 107: Fair Use, Factors 1 & 2 Purpose of Use Nature of Work Personal; Educational; Nonprofit; Scholarship; Research; Commentary or Criticism Commercial; For Profit Nature of Work Fair Use has 4 factors. These are the first 2. I like to think of Fair Use as a continuum. On the one side, it’s okay, on the other, it’s not. And then there are a number of uses in the middle that may or may not be okay depending upon the other factors. Left side of screen—fair use is okay, right side of screen—fair use is not okay. Fiction; Highly Creative (art, music, novels, films, plays); Unpublished Fact; Published

§ 107: Fair Use, Factors 3 & 4 Amount Used Effect on Potential Market Large Amount; “Heart” of work Small Amount Effect on Potential Market Out of print/unavailable; Limited & restricted audience; User owns lawfully acquired copy; No similar product available from copyright holder Competes with the market & may replace a sale; Avoids paying copyright royalties; Repeated & long-term use; Made widely accessible; Many copies made Factor 4 tends to hold the biggest sway with the courts, so keep that in mind too. At George Mason, our Copyright Officer strongly recommends that we fill out a copyright checklist when considering a fair use (and keeping a copy!) .

Print Copyright Checklist This is an example of part of a print checklist available from Cornell. http://copyright.cornell.edu/policies/docs/Fair_Use_Checklist.pdf

Online Fair Use Evaluator Tool And here’s an online tool which helps you evaluate your use to determine if fair use would apply and you can print it at the end. http://librarycopyright.net/fairuse/

§ 108: Reproduction by Libraries Allows ILL departments to make, send and receive copies of works Allows libraries to make copies for individual patrons, other libraries or for preservation purposes Typically, does not apply to a musical work; a pictorial, graphic or sculptural work; or a motion picture or other audiovisual work There are conditions!!! When we talk about copyright in ILL, section 108 tends to be the part of copyright law we focus on the most. This is the section that allows Lending libraries to make and send copies and Borrowing libraries to receive them. Also it allow libraries to make copies for its own patrons.

CONTU Guidelines “Rule of 5” Requires including a copyright compliance statement on ILL copy request (CCG or CCL) Requires libraries to keep records of borrowing copy requests for current year + 3 full years Rule of 5: guidance given to libraries of how many articles they can request from a periodical title in any given calendar year of “recently published articles” – so 5 articles published within the past 5 years. CONTU gives no guidance for articles published more than 5 years ago (except in the cases of articles or chapters published in a non-periodical work such as a monograph). CONTU says requesting 6 or more recent articles are too many (it’s substituting for a subscription, and it’s impacting potential market).

“Rule of 5” Usually means articles from periodical titles Up to 5 “recently published” articles from a periodical title within 1 calendar year “Recently published” published periodicals = within the past 5 years Can mean article/chapter from non-periodical work Up to 5 copies of articles/chapters from non-periodical work within 1 calendar year During work’s entire copyright term What this means is you can request copies of 5 articles from a single journal that were published within the past 5 years within a calendar year. 5 within 5. Usually we think of this applying to journal articles. But it can also apply to book chapters. In the case of book chapters, it’s up to (and including) 5 chapters from a title within a calendar year.

Copyright Compliance: CCG For Periodical Articles: The article was published within the last 5 years AND Your library does not have a current subscription to this title AND Your library has requested and received 4 or fewer copies from this title this calendar year AND You are requesting only 1 article from any issue per patron* ALL 4 conditions must apply to fall under CCG for periodical articles. *condition of Section 108 of Copyright Law

Copyright Compliance: CCG For Book Chapters: The book is “in” copyright AND Your library does not own a copy AND Your library has requested and received 4 or fewer copies from this book this calendar year AND You are requesting only 1 chapter (or a small portion) from this book per patron* I think for most of us, we don’t run into issues with book chapters as often, or we turn copy requests into loan requests. For a book published in 1979, if we don’t list copyright compliance as CCG but instead use CCL, personally, this isn’t something I lose sleep over at night. It’s okay. But technically, if a person listed CCG it would be correct. *condition of Section 108 of Copyright Law

Copyright Compliance: CCL The periodical article was published more than 5 years ago OR Your library has a current subscription to this periodical title (or owns the book) but does not have access to the title (ie: at bindery) OR Your library otherwise determines another exception under Copyright Law applies OR You are paying copyright royalties or you have permission to copy from the copyright holder Any one of these conditions may apply. If your request has extenuating circumstances, be sure to tell potential lenders this information in the Borrowing Note. For example, our copy was lost; we can’t find another copy for sale in the world; our copy is at the bindery; we’re paying copyright royalties for this article. Though not required, it helps the lender!

What if I Exceed the Rule of 5? Pay copyright fee to CCC Obtain permission to copy from copyright holder (may include payment of royalty fee) Purchase article from document delivery vendor who pays copyright on your behalf (including publisher) – such as BRI Borrow entire volume from another library Refer patron to a nearby library with the issue in its holdings Start a subscription to the journal Cancel/deny ILL request until next calendar year

What Else May Be Copied? Entire works in public domain Entire works or sections of works, if -- after reasonable investigation -- a copy of a work cannot be obtained at a “fair price” Works governed by the provisions of a contract or license agreement A work in the public domain is one for which no copyright is held. It can be freely used, copied, or distributed by anyone. A work may be in the public domain because the copyright may have expired or an author may have placed the work in the public domain. Most U.S. Federal Government publications are in the public domain, but state and local governments may hold copyright for their documents. 1st bullet—it’s definitely okay to copy a whole work (not protected by copyright law); in 2nd bullet—it’s a matter of interpretation with more gray area (what does reasonable investigation or fair price mean??)

Conditions for Using Exceptions Copies made/distributed with no purpose of commercial gain Collections open to the public Copies include a notice of copyright Conditions Libraries must meet to be eligible for making copies for patrons (OR open to persons doing research in a specialized field, who are not affiliated with your institution) From 17 U.S.C. § 108 (a)

Conditions for Copying for Patrons Patron requests no more than 1 article per periodical issue or only a “small portion” of any other copyrighted work Copy becomes the property of the patron Library believes copy will be used only for private study, scholarship or research Library displays a “warning of copyright” prominently at the place where orders are accepted, and on the order form Conditions you and your patrons must meet to make & give your patrons the copies. Your institution needs to determine what a “small portion” of any other copyrighted work is. This category will mostly equate with “book chapters” but other things might be abstracts or papers from conference proceedings. We generally use the rule of thumb 1 book chapter or 10% of the book, whichever is less. Unless there are multiple volumes. You may have to defend your position. We had a borrowing library question us when we turned a copy request into a loan. They requested about 13% of the book, if I recall. Since then, our Copyright Officer has been pushing 15% for reserves, and now ILL. But if asked to defend 15% we would be less able to do so. 10% came from Guidelines for Reserves available from the US Copyright Office. From 17 U.S.C. § 108 (d)

Display & Order Warning of Copyright 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. We are supposed to display this warning of copyright at our physical “order” desks and on the paper “order” forms. These days, many of us have electronic ordering systems such as ILLiad, so what do we do? From 37 C.F.R. § 201.14

Order Warning of Copyright At George Mason, we display this on every copy request in ILLiad. Screenshot from Mason’s ILLiad article request form

Borrowing Responsibilities Display copyright warnings Determine if CONTU Guidelines or Copyright Law applies AND if you can fill the request legally Indicate Copyright Compliance on all ILL copy requests Keep records Work with others at your institution to examine ILL requests and economic impacts—a subscription may be cheaper than copyright royalty fees!

Lending Responsibilities Know of copyright limitations impacting borrowing libraries Make sure copyright compliance is indicated If no: request cannot be filled Determine if request from a borrowing library appears to violate restrictions on copying set by CONTU and Copyright Law If yes: request should be refused Include appropriate Notice of Copyright on copies provided to other libraries

Example of part of flowchart that might be used to in Lending to determine if an article request adheres to CONTU Guidelines or Copyright Law copy limits

Notice of Copyright If available, include copyright notice that appears in the work (often on first page of article/chapter or in front matter of work) If not available, include a legend, such as: Notice: This material may be protected by Copyright Law (Title 17 U.S.C.) The Digital Millennium Copyright Act of 1998 changed this section of 108, and it impacts how we should be including the Notice of Copyright on the copies we make for borrowing libraries and our own patrons.

Notice of Copyright from Book Bartholomew, Mel. Square Foot Gardening: A New Way to Garden in Less Space with Less Work. Rodale, 2005. Copyright statement from verso page in book. We are now including the title page and verso page so that the patron will have citation and copyright information.

Notice of Copyright from Journals Archaeology Ethnology & Anthropology of Eurasia. 38/4 (2011) 52–59. Copyright statement on first page of article in journal. ABA Journal, July 2002 issue. Copyright statement in front matter of issue. If copyright notice appears on first page, you’re covered and can just supply the article as is. If the copyright notice appears in front matter or somewhere else in the issue, you need to copy that page in addition to the article and supply all of those pages. If no copyright notice appears, make sure to include the copyright legend (2 slides before).

International Copyright Limited copying for purposes such as education, research or private study, are usually exceptions within national copyright legislation. The requesting library must follow the copyright laws of the supplying country. The supplying library should inform the requesting library of any copyright restrictions that might apply. International Copyright is a whole other presentation, but I wanted to include a mention. For more info, see IFLA document—URL is listed on this slide. Basically, it’s impossible to know the copyright law of every other country you deal with. But in general, it’s true that most countries allow limited copying for education, research and private study in their national copyright law—just like the US does. Also, when we go to another country for an article, we must follow their copyright laws. So I go to the UK for a copy of an article published in the UK, they supply it. I’m bound to follow their copyright law. BUT they’re supposed to tell me if there are any copyright restrictions that might apply. If I supply an article to an international library, I should provide guidance to them about restrictions in US copyright law. The regular legend we use domestically probably isn’t enough. It’s what we use now. And it’s one of the items now on the list of things to figure out with our Copyright Officer and legal counsel at some point in the future. International Resource Sharing & Document Delivery: Principles and Guidelines for Procedure (IFLA, latest revision: 2009) http://www.ifla.org/files/docdel/documents/international-lending-en.pdf

Primary Sources U.S. Copyright Office (www.copyright.gov) CONTU Guidelines Final Report of the National Commission on New Technological Uses of Copyrighted Works (1978) (http://digital-law-online.info/CONTU/PDF/ index.html) CONTU Guidelines on Photocopying under ILL Arrangements (excerpt of report from Chapter 4) (www.cni.org/docs/infopols/CONTU.html) If you haven’t read the primary documents, I’d strongly recommend you do so, especially if you will be setting policy or influencing policy decisions. I will admit that I have made some mistakes in implementing procedures in our ILL Office because I relied upon the interpretations of others, and I didn’t read the actual source—Copyright Law or the CONTU guideline. Now that I have read them, in conjunction with others’ interpretations, I feel much more versed on copyright law and can have knowledgeable conversations with the right people at my institution. I also know what areas that we need to work on—set policies, provide better documentation to the ILL Office, make changes to workflow, etc.

Recommended Reading Medical Library Association’s Interlibrary Loan FAQ (www.mlanet.org/government/positions/illfaq.html) [MLA’s FAQ is excellent—if you read nothing else from my list of Primary or Secondary Sources, this is the document to read. It covers a lot of article copyright questions in a very thorough and straightforward manner. And it’s available online for free!] Kristof, Cindy. “U.S. Copyright and Interlibrary Loan Practice.” Interlibrary Loan Practices Handbook, 3rd ed., 2011 (Chapter 4) [There is a new edition of the Virginia Boucher’s Interlibrary Loan Practices Handbook. Virginia Boucher retired a while back, but her legacy lives on. The 3rd edition, like previous editions, includes a chapter on Copyright. I highly, highly recommend it.] “Interlibrary Loan: Copyright Guidelines and Best Practices.” (Copyright Clearance Center White Paper: March 2011) (http://www.copyright.com/content/dam/cc3/marketing/ documents/pdfs/ILL- Brochure.pdf) [CCC’s white paper updates an older document similarly named. There is a typo in this paper—it lists best practices for lending libraries twice—the first should be lending libraries, the second should be borrowing libraries. Note: CCC tends to have a very conservative view of copyright law and practice. Your institution may have a more liberal interpretation.] University of Texas Libraries’ “Copyright Crash Course– Making Copies: Interlibrary Loan” (http://copyright.lib.utexas.edu/l-108g.html) [Many universities have good copyright tutorials and resources online, such as this one from Texas—which specifically deals with ILL. Other ones you might want to explore for general copyright topics: Stanford, Columbia, Minnesota. Just Google the institution’s name + “copyright”.] Band, Jonathan. “The Impact of the Supreme Court’s Decision in Costco v. Omega on Libraries.” (Library Copyright Alliance Policy Paper: January 2011) (http://www.arl.org/news/pr/costcoupdate31jan11.shtml) [Library Copyright Alliance Policy Paper on potential threats to exception in Section 109, which gives libraries the right to lend copyrighted works.]

Questions?