License to Fill: What do Libraries Want?
Janet Brennan Croft jbcroft@ou.edu
Head of Access Services, University of Oklahoma
As presented at the American Library Association annual conference,
June 27, Orlando.
"Time and experience will show that the publisher-librarian controversy over copyright, interlibrary loan, and photocopying was the result of fear and misunderstanding - largely on the part of the publishers." (Gilmer 87)
What exactly are librarians asking for when we say we want to be able to use our electronic resources to fill interlibrary loan requests? As librarians, we do have our selfish motives -- we desire procedures that don't involve extra work or expense for the interlibrary loan staff on either end of a transaction, we want consistent and easy-to-understand contracts, and we’d like vendors to understand the laws and regulations which already apply to us.
But what's much more important to us is providing what our users need. For the ILL patron, the procedure needs to be transparent - ideally, whether the item originated as print or pixels should make no difference as far as the service the patron receives and the legal rights he has to use the item. The patron, and his library, do not want to be preemptively limited by contract clauses that treat us as if we were potential criminals out to steal profits from the copyright holder. Instead, we want to be treated as ethical human beings willing to make a good-faith effort to stay within the law or the terms of a reasonable contract. As Laura Gasaway cautions,
Most librarians are law-abiding citizens who want to comply with the copyright law. Unrealistic restrictions, outright denial of use … and unreasonable royalty fees on the part of publishers may discourage compliance. (Gasaway 131)
As an interlibrary loan librarian, it's my job to see all library users everywhere as potential users of my library, and I want to be able to provide them with the same level of service I hope other libraries will provide to my own local patrons. That is why the right to use electronic resources to fill ILL requests is a make-or-break issue for so many of us when we negotiate contracts.
And contracts are the issue. Most electronic database and electronic journal subscriptions are now obtained by contract rather than outright purchase. The library does not actually own the material, but only pays for access to it. When a library purchases a book or other physical work, in contrast, there is no need for a contract because the library's use of the material is governed by copyright law.
Contracts pose a problem because the terms proposed by the provider do not have to be in agreement with copyright law. This is especially disturbing when these contracts prohibit activities we have long considered to be fair use. By signing such a contract, we may effectively agree to waive the fair use exceptions that our patrons expect to have. As Duane Webster explains,
Routine library practices permitted under copyright law, such as interlibrary borrowing ... have ... been restricted, in some cases severely restricted and in other cases barred by licensing agreements. (Webster 3)
There is little consistency between licenses – “[a] license may allow direct electronic transmission of a document; it may require the document to be printed and then scanned and transmitted by fax or email; it may permit only physical printed copies to be sent via regular mail; or it may forbid interlibrary loan altogether” (Croft and Murphy 7-8). Fortunately, contracts are by their nature negotiable, and libraries can try to negotiate favorable contracts that satisfy the needs of their patrons. As Georgia Harper has observed, "very rarely do vendors refuse to negotiate their terms" (Harper, Acquisition 1), so it is always worthwhile to try.1
To learn what libraries want, it's instructive to take a look at the current laws and regulations governing the use of print materials for interlibrary loan, and how these protect the user, the library, and the copyright holder.
Lending an actual physical item owned by the library to an outside borrower is simple; it's a use covered by the first sale doctrine, which allows the owner to lend an item to anyone he wants to. The "first sale" rule is "the concept that copyright holders only control the first sale of their works, after which purchasers may give them away, sell them, or otherwise pass them along" (Heins "Introduction" 4). "First sale" made it easy to deal with copyright issues when information existed only in tangible physical forms owned outright by the library. Once the physical item is in the hands of the borrower, it's up to him to comply with the Fair Use statues.
Making copies is a bit more complex, but Section 108 of the copyright code permits a library to make copies of a work it owns for its own users or users from another library. The CONTU guidelines were developed to define the conditions under which libraries could make these copies.
One group of stipulations protects both the borrowing and lending libraries from the user's actions:
· A copy must become the property of the user
· The library must have no notice that the user plans to use it for any purpose other than private study, scholarship, or research
· The officially-worded warning about copyright compliance must be posted where orders are taken and on the order form.
These conditions serve to alert the user to his rights and responsibilities, and give the copyright owner guidance on where to turn if his rights are violated. Once again, it is up to the final user to comply with Fair Use.
On the other hand, there are also some strict limits on the borrowing library which protect the interests of the copyright holder:
· Libraries cannot substitute interlibrary loan for purchasing an item (so, for example, a library is limited to borrowing no more than five articles from the same journal each year without permission)
· Libraries cannot profit directly or indirectly from interlibrary loan (any fees must be for cost recovery only)
· The library must not perform any "systematic" copying for ILL (for example, routing copies of journal articles to a list of instructors)
But all of these regulations apply to physical items with clear ownership. What about when the library doesn’t own the item -- when, in fact, we simply purchase access to it? Can we make a case for applying a similar set of conditions to using contract databases to fill ILL requests? As Webster has pointed out,
Previously, as owner of a particular copy of a book, a library was entitled to set the terms of patron access to that copy. In the new world of libraries as licensee of a digital work subject to technological measures, the library may be denied such right. (Webster 3)
So is it possible to apply the current laws and regulations that govern copying items for print ILL to electronic ILL and come up with something that will satisfy the user, the library, and the copyright owner?
We already know something about what the library and user want -- we basically want something similar to the rules that apply in the case of copied print material to apply to electronic material as well. What is the main concern of the vendor? At a very basic level, it is to make or at least not lose money. Publishers and producers fear a loss of profit through widespread and unauthorized distribution of their products. Authors have concerns about their control over their own work as well, but some, particularly writers of scholarly non-fiction articles, may have competing concerns about making their writings as widely and freely available as possible.
Current copyright laws for physical items may be designed to protect the copyright holder's rights, but technology makes violations easy, so it is understandable that vendors would try to write contracts that make abuse impossible in the first place, in preference to prosecuting abuses after they happen. While users of interlibrary loan have had the ability to copy and mail the items they borrow to friends and colleagues as long as there have been photocopiers, with an electronic file, the user can print the item, save it to a disc or hard drive, send it to one or ten thousand friends via email, or even post it on the internet for the world to see. Digital copies never degrade, no matter how many times they are recopied, and they cost nothing to send to either one or one million other email addresses. Technology makes such a great difference that it becomes a difference in kind and not just in scale.
To add to the concern, additional digital copies are made as part of the very process of sending an interlibrary loan item. Technically, the lending library makes a copy when scanning it, and the borrowing library makes another when receiving it. But the lending library's copy is only a by-product of the process and is always discarded or deleted immediately. The borrowing library is only supposed to keep its digital copy long enough to ensure that the patron has had an opportunity to view it, and then it is deleted as well. If borrower prints out or saves the item, it becomes his property and responsibility, just as a copy supplied physically by the library would be.
So what conditions can be made to protect the library from the user's actions? When you look at the laws, regulations, and decisions concerning responsibility for violations, there seem to be two trends pulling in opposite directions. On the one hand, as shown by the Sony Betamax decision, and by RIAA's recent tactic of going after the people who are actually downloading illegally rather than their internet service providers, there is the idea the end user is really the one responsible for any violation of the law, and the only one who should be punished. In the library world, the signs we all post by our copiers and at the point of ILL pickup state that the end user is in fact solely responsible for staying within copyright law when using his materials.
On the other hand, as shown in the Napster case, there is the tendency to blame someone who can be conceived of as a middleman, someone who provides the means to violate the law, although they themselves are not actually violating any laws and their product can be and often is in fact used legally. This is in part because the middleman usually has deeper pockets than the end user who actually violated the law. A case could certainly be made that a library is in no way responsible for any user's violation of the law, and that our only responsibility (and it's a professional and ethical one, rather than a legal one) is to educate the user about his rights and responsibilities.
A solution probably lies somewhere between these extremes, and in fact the current balance between library and patron responsibility is a fairly workable compromise for interlibrary loan of print material.
In order to limit the end user's ability to violate fair use of an electronic resource, the library can do several things. A library could send only scanned PDF files instead of text files, making it harder for the borrower to cut and paste the file into an email or web site or use it for plagiarism. While this is harder for the library to do than just sending a file directly to another library, we are already set up to do this in the case of print originals, so printing and scanning an article doesn't seem like too much of an extra step. Libraries can also make a serious effort to educate their patrons about their responsibility to adhere to the fair use factors, by including copyright warnings wherever possible to do so and by emphasizing adherence to the law in their bibliographic instruction.
And what constraints can be placed on the library's actions to protect the copyright holder? The document should only be accessible to the person who requested it, or it might be perceived as systematic copying and distribution of an article. It should only be kept on the library's server for a limited time, or it could imply that the library has borrowed the material in lieu of purchasing it. The rule of five should apply as easily to electronic resources as to print; if a library borrows five items from an electronic journal within a year, it should pay copyright fees or subscribe.
But all this would require that electronic resources be clearly included in the current copyright law, rather than governed by individual and varying contracts. As this is the situation under which we must work to obtain the materials our patrons need, it is in our best interests to be proactive in developing guidelines based at heart on the four factors of Fair Use and the laws and regulations governing interlibrary loan, and acceptable to as many parties as possible without compromising these principles. Until something similar to the CONFU discussions take place again, librarians can work with their vendors to develop satisfactory contracts that permit fair use of the material while protecting the provider's interests.
There are many undisputed advantages to electronic format materials, and we want to be able to use these resources in the same way we use the material we own: to send a patron a usable copy of our original which becomes his property and responsibility. We are willing to take certain steps to protect the rights of the database vendor and the copyright holder by making it more difficult for the user to abuse copyright -- such as sending scanned pages rather than a text file -- but not if the requirements are too punitive to the ILL staff on either end. We want to be trusted middlemen between your database and those who do not yet have access to it through their home libraries. (Look on them as potential customers, not potential mass copyright violators). We want database vendors to know that those who allow this type of use gain more library customers -- and thus we all profit when more information is more widely available.
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Portions of this presentation are from my forthcoming book, Legal Solutions in Electronic Reserves and the Electronic Delivery of Interlibrary Loan (Haworth Press, 2004, 0-7890-2559-0 pbk., 0-7890-2558-2 hbk.). The author is not a lawyer, and recommends that you seek the advice of your institution's counsel when in doubt concerning your particular situation.
Notes:
1. The model licenses at http://www.licensingmodels.com/ provide sample clauses and definitions that can help libraries to rewrite licenses to allow interlibrary loan, electronic reserves, and other uses (see Brennan, Hersey and Harper; Croft 2001 for additional advice on negotiating licenses).
Bibliography:
Brennan, Patricia, Karen Hersey, and Georgia Harper. Licensing Electronic Resources: Strategic and Practical Considerations for Licensing Electronic Information Delivery Agreements. 23 July 2002 . Association of Research Libraries. Available: http://arl.cni.org/scomm/licensing/licbooklet.html. 15 September 2003.
Circular 21: Reproduction of Copyrighted Works by Educators and Librarians. June 1998. United States Copyright Office. Available: http://www.copyright.gov/circs/circ21.pdf. 3 September 2003.
CONTU Guidelines on Photocopying under Interlibrary Loan Arrangements. 3 July 2002. Coalition for Networked Information. Available: http://www.cni.org/docs/infopols/CONTU.html. 29 August 2003.
Crews, Kenneth D. Copyright Essentials for Librarians and Educators. Chicago: American Library Association, 2000.
Croft, Janet Brennan. Legal Solutions in Electronic Reserves and the Electronic Delivery of Interlibrary Loan. Haworth Press, 2004. (Also available as Journal of Interlibrary Loan, Document Delivery & Information Supply 14:3 (2004).
Croft, Janet Brennan. "Model Licenses and Interlibrary Loan/Document Delivery from Electronic Resources." Interlending and Document Supply 29.4 (2001): 165-68.
Croft, Janet Brennan, and Molly Murphy. "Licensing and the Interlibrary Loan Workflow." Journal of Access Services 1.2 (2002): 5-14.
Gasaway, Laura N. "Copyright Considerations for Electronic Reserves." Managing Electronic Reserves. Ed. Jeff Rosedale. Chicago: American Library Association, 2002. 109-35.
Gilmer, Lois C. Interlibrary Loan: Theory and Management. Englewood CO: Libraries Unlimited, 1994.
Harper, Georgia. Acquisition under Contract. 6 February 2003. University of Texas. Available: http://www.utsystem.edu/ogc/intellectualproperty/l-cntrct.htm. 29 August 2003.
---. Fair Use of Copyrighted Materials. 14 November 2002. University of Texas. Available: http://www.utsystem.edu/ogc/intellectualproperty/copypol2.htm. 15 September 2003.
Heins, Marjorie. "The Progress of Science and the Useful Arts": Why Copyright Today Threatens Intellectual Freedom. Fall 2003. The Free Expression Policy Project. Available: http://www.fepproject.org/policyreports/copyright2dexsum.html. 17 September 2003.
Minow, Mary. How I Learned to Love Fair Use ... 2003. Stanford University Libraries Copyright and Fair Use. Available: http://fairuse.stanford.edu/commentary_and_analysis/2003_07_minow.html. 30 July 2003.
Webster, Duane. The Practical Realities of the New Copyright Laws: A Librarian's Perspective. 2002. Association of Research Libraries. Available: http://www.arl.org/info/frn/copy/WebsterMLA02.html. 11 February 2003.
Cases Cited
The “Betamax” case: SONY CORP. v. UNIVERSAL CITY STUDIOS, INC., 464 U.S. 417 (1984), http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=US&vol=464&invol=417&linkurl=http://fairuse.stanford.edu
The “Napster” case: In re: Napster, Inc. http://news.findlaw.com/hdocs/docs/napster/napster032502opn.pdf
Useful Websites
United States Copyright Office:
http://www.loc.gov/copyright/ An excellent source of authoritative information all in one place. Includes text of all relevant laws, information about pending legislation, how to register items for copyright, and much more.
When Works Pass Into the Public Domain:
http://www.unc.edu/~unclng/public-d.htm Laura Gasaway’s detailed chart helps you navigate the muddy waters of copyright expiration. It has been updated to show the effects of the “Sonny Bono Act” on copyright terms.
Copyright Crash Course:
http://www.utsystem.edu/OGC/IntellectualProperty/cprtindx.htm Georgia Harper’s University of Texas page.
Library Law:
http://www.librarylaw.com/index.html Mary Minow’s wide-ranging site on all aspects of library law.
CONFU: The Conference on Fair Use:
http://www.utsystem.edu/ogc/intellectualproperty/confu.htm An effort to create copyright regulations for multimedia resources; disbanded due to lack on consensus in 1997.