ACRL Vermont and New Hampshire Interlibrary Loan Librarians Fall 2016

1. ILL & Copyright: Putting
it all together
ACRL Vermont and New Hampshire Interlibrary Loan Librarians
Fall 2016
Jon Cavicchi, J.D., LL.M. (IP), Professor & IP Librarian
Faculty Fellow : Franklin Pierce Center for Intellectual Property

4. Resources

5. Contents
 Legal Periodicals
 Legal treatise sections
 List of copyright & libraries books in UNH Law IP
Library
 Government docs
 NGO grey materials
 Link to helpful ILL tools

6. To be honest, copyright is a topic which
confuses and scares most librarians—
even though the ALA Code of Ethics
commits us to uphold it!

9. Who makes copyright decisions within an
organization?
 UNH example
 General Counsel
 UNHInnovation
 Dimond Library
 UNH Law IP Library
 UNH Law copyright professors
 Copyright lawyer?

11. Is copyright a “big deal” for
Libraries?
 Carrot and the stick
 search shows Libraries are not receiving
desist letters or being sued
 Librarians proactive
 professional associations spend large sums to
protect educate members on the law and to
lobby to keep legislation friendly to libraries
and information accessible to the public

12. Copyright trials are rare
 According to Table C-4 in "Judicial
Business of the US Courts," only 20
copyright cases that terminated in
2015 went to jury.
 Percent reaching trial 0.7%

13. Jon - don’t tell them its OK to
infringe because they won’t get
caught !
 APA
 sharing decreases subscriptions and drives prices up
 copying drives prices up
 quality control costs
 publishers need revenue streams
 publishers need revenue to reinvest and develop
subsidiary uses

14. They won’t sue libraries but
they won’t concede in
negotiating legislation and
guidelines
 Robert L. Oakley, Growing Pains : Adapting Copyright
for Libraries, Education, and Society (Rothman)

15. Is the copyright law...
Accommodation of interests?
Protection of capital structure?

16. The right of access on behalf of copyright proprietors raises significant
concerns for libraries and their patrons in their efforts to access and use
copyrighted works. Libraries acquire copyrighted books and materials and
have traditionally made them available to library users. The first sale doctrine
permits libraries to lend their copies of copyrighted works to users without
seeking permission or paying fees to the copyright holder. Access controls
have the potential to disrupt traditional library service by converting access to
materials to a pay-for-use system regardless of the purpose of the user who is
accessing the work. Although libraries could fund access for all of its patrons,
the reality of library budgets makes this highly unlikely. Thus, individual library
users are likely to have to pay for their access or for various levels of access
which will create a world of information haves and have nots. Additionally,
access controls could eliminate the first sale doctrine, although it is arguable
that the first sale doctrine may be meaningless, in any event, in a pay-for-use
world.
Laura N. Gasaway, The New Access Right and Its Impact on Libraries and
Library Users, 10 J. Intell. Prop. L. 269 (2003)

17. Give not into temptation...
 Copying is quicker and cheaper than
 tackling the copyright law learning curve?
 drafting policies and procedures?
 clearing copyright use?
 keeping records?
 Statutory damages up to $150,000 (libraries?)
 Premise of copyright is consistent with missing and
goals of librarianship: “to serve social interests and
the public welfare by encouraging learning, free
speech and the advancement of knowledge.”

18. Today’s Libraries in NH
 Public
 School
 College & University
 Some little to no technology
 Some fully “wired” with extensive electronic collections

19. Diversity of library settings -
SLA
 Business / Corporate
 Educational
 Governmental
 Law
 Museums
 Public
 Research

20. Scenarios differ but we all
 Acquire
 Preserve
 Organize
 Make available
 Copy
 Distribute
 Lend
 Perform
 Display

21. The content of others
Most of the time protected by law

22. Copyright has come a long
way
 Based on English law
 Tradition of proprietary right in artistic and intellectual
labor developed over many centuries
 St. Columba copies Psalter of St. Fennian (600s)
 Irish King Diarmait arbitrates
 “To every calf her cow, to every book its copy”

23. Organized law of copyright
 Craxton introduces printing press in 1476
 Patronage & royal prerogative
 censor seditious literature
 Monopoly by Stationers Company
 Statute of Anne in 1710 provided literary work was
property of author
 Transition of author as gentleman
and scholar to proprietor

24. U.S. Copyright laws
 Pre-Constitution all colonies passed law protecting
creative works
 Article I, clause 8, section 8
 “The Congress shall have the power…to promote the
progress of science and useful arts…by securing for
limited times to authors and inventors the exclusive rights
to their respective writings and discoveries”

25. Dueling public policies
 Promote creativity by granting exclusive rights
 Enhance the use of the public fund of knowledge
 Creators clash with users?
 That which is a financial detriment to an author a
detriment to the public?

26. Copyright law became purely
Federal
 U.S. Copyright Acts
 1790
 1831
 1870
 1909
 1976
 1976 Act is the current law amended many times in
the last two decades

27. Copyright “law” : 3 branches
of government
 Constitution
 Copyright Act
 Federal Regulations
 Copyright Compendium II
 Appellate court decisions interpreting the three above
authorities

28. Many interpretations

29. The long tail of litigation?
 TEACH Act 2002 passed almost 15 years ago
 No interpretive cases
 “The TEACH Act is too new to have been judicially
interpreted, and case law may be long in coming.”
 Raymond T. Nimmer & Holly K. Towle, The Law of Electronic
Commercial Transactions (Pratt, Last updated August 2016)

30. “Official” Guidelines
 Legislative history to the 1976 Act
 Copyright Office Circulars
 CONTU
 CONFU
 You may be obligated to follow them by agreement
 “Safe harbors?”
 have courts made them maximum guidelines?

31. Model Policies
 ALA Model Policies
 ALA Interlibrary Loan Code for the United States
(RUSA)
 Interlibrary Loan: Copyright Guidelines and Best
Practices
 Code of Best Practices in Fair Use for the Visual Arts
 May adopt and be bound by them
 within institution
 by agreement

32. Oh no, there are international
rules too?
 U.S. is a party to conventions and treaties
 move to harmonize U.S. law
 e.g. Digital Millenium Copyright Act implements World
Intellectual Property legislation

36. How do I figure this all out?
 Black List
 clearly prohibited by law or court decision in your Circuit
 Grey List
 no clear law
 Guidelines allow
 White list
 clearly allowed by law or court decision in your Circuit

37. When white is black and black
is white
 Contracts may control what you can do
 a license or agreement may limit what
is lawful and allow what is prohibited
 Contract preemption: an issue to
watch
See Ass'n for Info. Media & Equip. v.
Regents of the Univ. of Cal., No. CV
10-9378 CBM, slip op. at 9-10 (C.D.
Cal. Oct. 3, 2011).

38. Spectrum of books

40. Helpful Web Sources

43. Making copyright ILL decisions

45. Copyright Act
Protected
Y/N
Fair Use
Y/N
108 Y/N

46. Permissive use
 Getting permission can be easy
 Pay close attention to whether content participates in
Creative Commons.

47. NOT protected
 Content beyond copyright duration
 PUBLIC DOMAIN
 U.S. government works
 Facts
 Ideas
 “Scenes a faire” refers to things that are typical of a genre
 Realistic – rather than whimsical – representations of nature
have less protection

51. First Sale Doctrine – Section 109
• Allows us to borrow and lend “returnables”
– Books
– Theses and dissertations
– Microforms
– Videos
– DVDs
– CDs
– Whole issues or bound volumes of journals

52. 8 sections…many subsections...
4 pages of fine print
 108(a) - no more than one copy
 108(b) - Archival Reproduction of Unpublished Works
 108(C) - Reproduction to Replace Lost or Damaged Works
 108(d) - Articles or small excerpts
 108(e) - entire works
 108(f) - Unsupervised Reproduction Equipment
 108(g) - Systematic Reproduction
 108(h) - Rights of this section do not apply to...

53. §108
 Section 108 of the Copyright Act provides that, notwithstanding the exclusive rights granted to
copyright owners, “libraries and archives” shall be exempt from liability for copying and
distributing otherwise protected works under a set of specifically delineated conditions for limited
purposes such as preservation or replacement.
 The framework of Section 108 was developed over a quarter century ago and, although
amended since, is perceived by many as in need of reexamination.
 In April 2005, the Copyright Office and the Library of Congress's National Digital Information
Infrastructure and Preservation Program (“NDIIPP”) established a Section 108 Study Group
charged with examining how Section 108 may be amended to account for the widespread use of
digital technologies.
 In March 2006, the Study Group held public roundtable discussions in Los Angeles, California
and Washington, D.C. and requested written comment on issues relating to (1) what entities
should be eligible for the advantages of the section (e.g. museums); (2) possible amendments to
the preservation and replacement provisions of the section; (3) a proposal to permit preservation
copies of certain types of Internet content; and (4) a proposal to permit preservation copies of
published works under certain circumstances.
 More recently, the Study Group has examined the provisions of Section 108 governing copies
made by libraries and archives, at the request of users (including interlibrary loan copies), as
well as whether new provisions relating to copies, performances or displays made in the course
of providing public access are necessary. Public Study Group meetings continued through early
2007, with the report released in 2008

55. Legal Academics Respond
 Savanna Nolan, Standing on the Shoulders of Giants: How A
Drastic Remodeling of 17 U.S.C. S 108 Could Help Save
Academia, 19 J. Intell. Prop. L. 457 (2012)
 Moderator: Nancy Weiss et. al., Session 2: Section 108
Issues Other Than Mass Digitization, 36 Colum. J.L. & Arts
547 (2013)
 Mary Rasenberger, Copyright Issues and Section 108
Reform, 34 Colum. J.L. & Arts 15 (2010)
 James G. Neal, A Lay Perspective on the Copyright Wars: A
Report from the Trenches of the Section 108 Study Group
Horace S. Manges Lecture: April 1, 2008, 32 Colum. J.L. &
Arts 193 (2009)

56. ILL
 Originally about distribution
 Digital ILL about distribution and copying.

57. Digital ILL
 No longer send original items
 Original paper copy
 Scanned copy
 Digitized copy via internet
 Requestor copy often printed out

58. 108(a)

59. 108(b)

60. 108(c)

61. Section 108(C) -
Reproduction to Replace
Lost or Damaged Works
 The purpose of such duplication is to
replace a published damaged,
deteriorating, lost or stolen copy…
 After the library makes a reasonable
effort to determine that an unused copy
cannot be obtained at a fair price

62. FAIR PRICE
 Association of American Publishers
definition
 The suggested retail price if available from the publisher
 If not so available, the prevailing retail price
 The normal price charged by an authorized reproducing
service

63. 108(d)

64. Photocopy warning
 The copyright law of the United States (Title 17, United States
Code) governs the making of photocopies or other reproductions
of copyrighted material. Under certain conditions specified in the
law, libraries and archives are authorized to furnish a photocopy or
other reproductions. One of these specific conditions is that the
photocopy or reproduction is not to be “used for any purpose other
than private study, scholarship, or research.” If a user makes a
request for, or later uses, a photocopy or reproduction for
purposes in excess of “fair use,” that user may be liable for
copyright infringement. This institution reserves the right to refuse
to accept a copying order if, in its judgement, fulfillment of the
order would involve violation of copyright law. 37 C.F.R. Section
201.14

65. 108(e)

66. 108(f)

67. 108(g)

68. 108(h)

69. 108(i)

70. CONTU
• Not to be confused with CONFU…
• “Commission on new technological uses of copyrighted
works”
– Group of publishers, librarians, teachers, and other
stakeholders
– Controversy over 108 & ILL
– Designed to eliminate confusion
• Pursuant to the Copyright Act of 1976
– Final Report – 1978
• http://digital-law-online.info/CONTU/PDF/index.html
 – Chapter 4 - Guidelines on Photocopying under
Interlibrary Loan Arrangements

71. CONTU Guidelines
• Provides clarification for Section 108
• Attempts to quantify…
– “Systemic reproduction”
– “Aggregate quantities”
• Attempts to mitigate effects of library
subscription patterns on market and sales

72. CONTU Guidelines
• “5/5 Rule” or “Rule of Five”
– For BORROWING library
– Articles published fewer than five years before
date of request
– Requesting and receiving six or more articles
from a single journal title in a calendar year
• Deny request
• Start a subscription to the journal
• Pay royalties on requests that exceed this rule

74. ILL, CCG and CCL…?
 Library staff that request copies of magazine and journal
articles through Interlibrary Loan need to indicate on their
request compliance with copyright laws
 They do this by indicating either “CCG” or “CCL” in the
request. But what do those letters mean?
 CCG indicates compliance with the CONTU Guidelines.
 If those statements are not true, then you must indicate
“CCL” to show compliance with the U.S. Copyright Law.
 http://libraries.idaho.gov/node/951

75. CONTU Guidelines
• All ILL photocopy requests must include a copyright
compliance statement by the BORROWING library
– CCG
• ILL request complies with 108 (g) (2) Guidelines
• Falls within Rule of Five
– CCL
• ILL request complies with other provision of
copyright law
• Falls outside Rule of Five

76. Each year, a borrowing library may make five
requests from a periodical title going back five
years
H. R. 94-1733
In the current year 2016
2015
2014 5 times per year within these volume years : most recent 60 months
2013
2012
2011

77.  Borrowing library must maintain
records for three calendar years.
 Lending library must require
representation from borrowing library
that request conforms to guidelines.
 The guidelines take no position on
materials older than five years.

78. 6th request for a title
 Tell the user no, come back Jan.1.
 Order copy from an authorized document
delivery service.
 Pay royalties through CCC or directly to
publisher.
 Enter a subscription to the title.
 “Once in a blue moon exception”: make
the copy.

79. Consortia
Section 108(g)(2) Proviso:
“Nothing prevents a library or archives from participating
in interlibrary arrangements that do not have as their
purpose or effect receiving copies in such aggregate
quantities as to substitute for subscription to or
purchase of a work.”
 Consortia permitted
 But, borrowing must follow ILL guidelines
 Effects of intra v. interlibrary loan

80. Copyright Clearance Center
• Clearance for textual works since 1978
– http://www.copyright.com
– For ILL
• Pay royalties on “CCG” photocopies that
exceed the “Rule of Five”
– ILL transactions fall under Pay-per-use Permissions
– Why are some clearance fees so expen$ive?
• Not all publishers work with the
Copyright Clearance Center

81. What about non-CCC titles?
• Commercial Document Delivery Services
– Copyright fees are included in the price
• British Library Document Supply Services
• CISTI (Canada Institute for Scientific and
Technical Information)
• Purchase from the publisher
– Subscriptions
– Issues
– Individual articles

82. Non library exemptions
 109. Limitations on exclusive rights:
Effect of transfer of particular copy or
phonorecord
 110. Limitations on exclusive rights:
Exemption of certain performances and
displays
 111. Limitations on exclusive rights:
Secondary transmissions
 112. Limitations on exclusive rights:
Ephemeral recordings
 113. Scope of exclusive rights in
pictorial, graphic, and sculptural works
 114. Scope of exclusive rights in sound
recordings
 115. Scope of exclusive rights in non
dramatic musical works: Compulsory
license for making and distributing
phonorecords
 116. Negotiated licenses for public
performances by means of coin-
operated phonorecord players
 117. Scope of exclusive rights: Use
in conjunction with computers and
similar information systems
 118. Scope of exclusive rights: Use
of certain works in connection with
noncommercial broadcasting
 119. Limitations on exclusive rights:
Secondary transmissions of
superstations and network stations
for private home viewing
 120. Scope of exclusive rights in
architectural works
 121. Limitations on exclusive rights:
reproduction for blind or other
people with disabilities

83. If you conclude you have no
right to use so far, the final
step is to apply
The Doctrine of Fair Use
enacted to provide the widest
exploitation of copyrighted works
It’s a DEFENSE

84. Four prong test
 Purpose and character of the use
 commercial or
 nonprofit educational purposes
 nature of copyrighted work
 amount & substantiability of portion used in relation to
the whole
 effect upon potential market or value of work

85. Tell me librarian, do you feel
lucky?
 May be used to get around black list
 Balancing test
 Look to way judges in Circuit apply the test
 If you are wrong you may be liable for statutory
damages and paying the owner’s attorney fees

86. Risk tolerance
 Beyond fair use, permission,
license…
negotiate
accept risk
get insurance
 Coverage Under The Comprehensive (or Commercial)
General Liability Policy
 Direct coverage

87. Relationship 107/108
1983 Reports of the Register of Copyrights on
Section 108
 The position of the authors and publishers on the relationship between
Sections 107 and 108 may be seen from the following remarks of Charles
Lieb:
 On the initial question of 107 and 108, we think it clear that 108
provides additional [copying rights] over and above those afforded
libraries by Section 107. And we think that this conclusion is supported
not only by the legislative history but by the illogic of contrary review.
 We think if Section 108 does not put a cap for all practical purposes on
library copying rights and all unspecified rights, and we found fair use
under 107 what purpose would Section 108 serve? Why was it the
subject of such bitter controversy? Why did the library representatives,
in their efforts to eliminate Section 108(g) state their fear [that] if (g)(2)
became part of the law traditional library copying will be impeded if not
made impossible. And these arguments, really, may have to be made
in a different forum.
 Charles Lieb quoted in Patry on Fair Use § 9:31(Thomson West 2016)

88.  The position of the educators and librarians may be seen in the following remarks by John Stedman at
the same meeting:
 It is important to look at, first of all, Section 107 in terms of its history and context. This, after all, is a
long-standing doctrine, the doctrine of fair use, which has been in the law for a good hundred years, as I
recall.
 It has been basically a legal court made and court applied doctrine, a sort of safety valve to take care of
situations that they felt needed taking care of and which the strict, literal language of the Copyright Law
did not take care of. It has been a safety valve. In putting this into the statute for the first time Congress
really agreed to a couple of changes, not changes so much as clarifications that they have made, have
simply restated what has been the law.
 This becomes a provision of the law which Congress was simply reaffirming, in effect, telling the parties,
“Go ahead and continue to apply the fair use doctrine” as they have been doing for decades. All right.
That was in the law and it was in the law.
 Then comes along Section 108 which presumably resulted because of concerns over the vagueness
and the generalities of Section 107. That attempts in some respects—I think it poses some difficulties,
but at least it was an attempt to satisfy the educators by putting in some specific language.
 Now, as I read the two sections, 108 says, “Here are some things that you can definitely do.”
 Section 107 says, quite apart from Section 108, “We will continue to apply the fair use doctrine,” and
whether the fair use doctrine may be narrower in some situations than the Section 108 case or broader
in some situations than 108 I think are debatable questions.
 Patry on Fair Use § 9:31 (Thomson West 2016)

89. Developments?
 Copyright Act enacted in 1976
 Has been amended.
 DMCA changes integrated into section 108
 In exchange for unprecedented access to copyright-
protected material for distance education, the TEACH Act
(2002) requires that the academic institution meet specific
requirements for copyright compliance and education.
 TEACH Act specifically do not extend to electronic reserves,
coursepacks (electronic or paper), interlibrary loan (ILL) or
commercial document delivery.

90. TEACH Act 2002

91. Some copyright challenges
for today’s libraries
 Potential mass copying of electronic content
 Preservation copying - digital format life is 15-20
years
 Unsupported digital formats
 Orphan works
 Digital resource sharing
 consortia
 ILL
 cooperative collection development plans
 Library shift from print to e-resources

92. Questions? Doubts?
• Remember copyright’s primary purpose
• Confer with your designated copyright
expert/decision maker
• Consult ILL/copyright resources
• Ask your colleagues

93. EVERYONE BENEFITS
WHEN LIBRARIES SHARE?