RUSA STARS Workshop
Friday, January 25, 2013
Cindy Kristof
Kent State University
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[copyright-protected photo deleted]
“…an extensive knowledge of every nuance of
copyright law is not required for successful
(and legal) operation of an ILL department.”
- Lee Andrew Hyler
Source: Hyler, Lee Andrew. “Copyright in the Interlibrary Loan Department.” Interlibrary Loan and Document Delivery: Best
Practices for Operating and Managing Interlibrary Loan Services in All Libraries. New York: Haworth Press, 2006, pp. 53 –
64. (Simultaneously published as Journal of Interlibrary Loan, Document Delivery, and Electronic Reserve, Vol. 16, no. 1-2,
2006.)
Title 17, United States Code
• Grants a set of exclusive rights to copyright
owners for a limited period of time
• Exclusive rights are balanced with exceptions
• http://www.copyright.gov/title17/
“The Congress shall have the power…to
promote the Progress of Science and useful
Arts, by securing for limited Times to Authors
and Inventors exclusive Right to their
respective Writings and Discoveries.”
United States Constitution
Article 1, Section 8
Copyright protects
“original works of authorship” that are “fixed
in any tangible medium of expression.”
(Source: Title 17, U.S. Code at http://www.copyright.gov/title17/)

Facts

Things that are not fixed
• Weights and measures
• Dates of historical events
• Addresses and phone numbers
• Impromptu speeches
• Choreography that has not been notated or
recorded
• Ephemeral or transitory items or objects

You don’t need to “get” copyright

You may mark it with: © [your name]

You may register your work at
http://www.copyright.gov/eco/index.html
• $35 for electronic registration
Copyright Law gives copyright holders a limited
monopoly over their works, to serve as an incentive
for authors and creators. The rights include the
following:
•
•
•
•
•
•
Reproduce the work in copies
Distribute the work publicly
Make derivative works
Publicly display the work
Public performance
Public performance by means of a digital audio
transmission
(Source: § 106, Title 17 U.S. Code at http://www.copyright.gov/title17/)

What’s now in the Public Domain?
◦ http://copyright.cornell.edu/resources/publicdomain.cfm
◦ http://librarycopyright.net/resources/digitalslider/
Some things people think are in the Public Domain
are NOT…
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
Fair Use – Section 107
First Sale Doctrine – Section 109
Exceptions for Libraries and Archives –
Section 108
Four Factors of Fair Use
1. Purpose & Character of Use
–
e.g., non-profit vs. for-profit
–
e.g., factual vs. creative; published vs. unpublished
–
e.g., small portion vs. large portion or “heart” of work
–
e.g., little effect on market vs. huge impact on market
value
2. Nature of Work
3. Amount & Substantiality of Work
4. Effect of Use
Fair Use Tools

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Checklist - http://copyright.columbia.edu/copyright/fairuse/fair-use-checklist/
Evaluator - http://librarycopyright.net/resources/fairuse/

Allows us to borrow and lend “returnables”
•
•
•
•
•
•
•
Books
Theses and dissertations
Microforms
Videos
DVDs
CDs
Whole issues or bound volumes of journals

Section 108
• The copy becomes the property of the user;
• Library has had no notice that the copy will be
used for any purpose other than private study,
scholarship, or research;
• Library displays prominently, at the place where
orders are accepted, and includes on its order
form, a warning of copyright.

Section 108 Spinner
◦ http://www.librarycopyright.net/resources/spinner/

Not to be confused with CONFU…

“Commission on new technological uses of
copyrighted works”
◦ Group of publishers, librarians, teachers, and other
stakeholders

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

Guidelines are NOT law…

Provides clarification for Section 108

Attempts to quantify…
• “Systemic reproduction”
• “Aggregate quantities”

Attempts to mitigate effects of library
subscription patterns on market and sales

Keep records of all BORROWING requests
• Filled and Unfilled
• Three years
• Electronic records are just fine

“Suggestion of Five” or “Rule of Five” or “5/5
Rule”
• For the 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 exceeds this
suggestion…
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
Latest five calendar years
January - December
◦
◦
◦
◦
◦
2013
2012
2011
2010
2009

All ILL photocopy requests from the BORROWING
library must include a copyright compliance
statement:
• CCG
• ILL request complies with 108 (g) (2) Guidelines
• Falls within Suggestion of Five
• CCL
• ILL request complies with other provision of copyright
law
• Falls outside Suggestion of Five

In the absence of an automated system, keep
track on paper


One card for every journal title, with one
entry for every RECEIVED article five years old
or newer
Once you’ve received a SIXTH article that is
five years old or newer, you’ve exceeded the
Suggestion of Five

Clearance for textual works since 1978
◦ http://www.copyright.com
◦ For ILL
 Pay royalties on “CCG” photocopies that exceed the
“Suggestion of Five”
 ILL transactions fall under Pay Per Use Options
 Get It Now service
 http://www.copyright.com/content/cc3/en/toolbar/produ
ctsAndSolutions/getitnow.html
 Not all publishers work with the Copyright Clearance
Center

Commercial Document Delivery Services
• Copyright fees are included in the price
• British Library Document Supply Services
• Infotrieve
• http://www.infotrieve.com/document-delivery-service

Purchase from the publisher
• Subscriptions
• Issues
• Individual articles

Other choices for the SIXTH article, or
beyond…
• Borrow the entire issue (or bound volume), if you
can find a library who will lend it
• Refer the patron to a nearby library that has the
journal
• Evaluate situation for Fair Use
• Refuse the order/Close the title
•
http://www.ngcrc.com/ngcrc/page2.htm
“Please note that the Journal of Gang Research has no
relationship with the Copyright Clearance Center (CCC),
and it is not possible to photocopy our materials and
then later pay the CCC. We tried that for a few years, it
did not work out, there were abuses to our copyrighted
materials and we elected simply not to be listed with
CCC. Please note that the Journal of Gang Research does
not authorize second parties to xerox, photoduplicate,
copy or disseminate our articles through Interlibrary
Loan arrangements. There are no ‘ex post facto’ prices
for violation of our copyrights. Please do not do it. We
provide a reasonable, low cost way to get our
information, please follow these simple guidelines.”

Check for use of CCG or CCL

Check your licenses for electronic journals

Include copyright statement on copies
provided (DMCA, 1998)
◦ Copy the copyright statement on the piece
 If you cannot locate it, use a stamp
 Articles being delivered electronically have an electronic
stamp
 “Notice: This material is subject to the U.S. Copyright Law;
further reproduction in violation of that law is prohibited.”
(Gasaway-Wiant wording)
License trumps law

Collaborate with Technical Services
• Negotiate good licenses
• Read and track your licenses
• Renegotiate old licenses if necessary

Information and Tools
• Croft, Janet Brennan, “Interlibrary Loan and
Licensing.” Journal of Library Administration, Vol.
42, (3-4), 2005.
• ALIAS - http://idsproject.org/Tools/ALIAS.aspx
• ERM

[copyright-protected photo deleted]

eBooks?
• Michael Levine-Clark http://blog.oup.com/2012/07/replacing-ill-withtemporary-leases-of-ebooks/
• Heather Wicht http://collaborativelibrarianship.org/index.php/jocl
/article/viewFile/163/116
• Linda Frederickson et al. http://www.tandfonline.com/doi/abs/10.1080/107
2303X.2011.585102#preview

Berne Convention –
Supports International Interlibrary Loan
1886 – originally signed in Switzerland
1988 – United States joined
All members of the European Union are also current
signatories
◦ Many countries’ laws still only partially conform
◦ “Harmonization” – people live longer lives these
days
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IFLA’s International Resource Sharing and Document
Delivery: Principles and Guidelines for Procedure
• 1954
• revised in February 2009
• Copyright is number six of eight guidelines
IFLA Position on Copyright in the Digital Environment
• “Digital is no different…”
• “Contractual provisions, for example within licensing
agreements, should not override reasonable lending
of electronic resources by library and information
staff.”

First Sale
• Costco v. Omega
• Kirtsaeng v. Wiley

Document Delivery
• International Association of Scientific, Technical &
Medical Publishers (or STM)

Does the “first-sale doctrine” apply to imported
works manufactured abroad?
• 9th Circuit Court of Appeals
• Blogs
 Supreme Court
 http://www.scotusblog.com/case-files/cases/costco-vomega/
 An equally divided Court affirmed the Ninth Circuit's
holding that the first sale doctrine applies only to
copyrighted items that are made and distributed in the
United States. (Kagan, J. recused).
• Kenneth Crews
 http://copyright.columbia.edu/copyright/2010/12/16/co
stco-omega-libraries-and-copyright/

Textbooks
• Blogs
 “SCOTUS - http://www.scotusblog.com/casefiles/cases/kirtsaeng-v-john-wiley-sons-inc/
 Supremely Confusing” by Barbara Fister
http://www.insidehighered.com/blogs/library-babelfish/supremely-confusing-kirtsaeng-v-wiley
 Kevin Smith
http://blogs.library.duke.edu/scholcomm/2012/04/1
6/first-sale-goes-to-the-supreme-court-again/

Statement by STM on Document Delivery
• http://www.stm-assoc.org/industry-news/stm-statementon-document-delivery/

Michael Kelley – Research libraries,
publishers, stake out positions…
• http://www.libraryjournal.com/lj/home/891002264/research_libraries_publishers_stake_out.html.csp

Kevin Smith - …”a quiet campaign of intimidation
regarding ILL, especially ILL between countries…”
• http://blogs.library.duke.edu/scholcomm/2011/06/09/asecond-front/
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Is your use permitted by law?
Is the material within public domain?
Does your use fall within agreed-upon
guidelines?
Can you claim fair use?
Is the material licensed for your purpose?
Cindy Kristof – ckristof@kent.edu
http://www.kent.edu/news/announcements/success/blac
ksquirrelanniversary.cfm