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The Impact of Copyright on the Resource Sharing Practices of ASERL Libraries

I recently completed a one year appointment with the Association of Southeastern Research Libraries as Visiting Program Officer for Scholarly Communications. This was a wonderful opportunity to network with fellow scholarly communications professionals at the 40 member institutions of ASERL as well as build a scholarly communications program for ASERL and put us on the map nationally as leaders in this growing area of importance. As part of my responsibilities during the last 12 months, I examined the policies and practices of our members in several areas: open access, library publishing and resource sharing. I authored four papers reporting the results of conversations with and surveys of ASERL institutions. The final of these four papers is posted below and at the ASERL website.

 

Introduction

Resource sharing emerged as a common library service in the mid-1960s as library automation and telecommunication technologies developed. These developments allowed library networks to grow from an already-established tradition of cooperation among American libraries. The two primary forms of resource sharing in the early days were interlibrary loan and cooperative acquisitions.[1] When resource sharing involving only delivery of physical objects, libraries were only concerned with complying with the Copyright Act, primarily Section 108(g)(2), which states that libraries are not prevented from entering into sharing arrangements so long as the receiving library does not receive copies in such quantities as to substitute for a subscription of the work. As resource sharing grew and electronic access arose as a means of quick and efficient delivery, a group of libraries and publishers known as the National Commission on New Technological Uses of Copyrighted Works – or CONTU – convened in 1976 to develop agreed-upon guidelines for what was acceptable under the newly enacted Copyright Act.  The essential component of these guidelines is the “Rule of 5.”  That is, within a single calendar year a library should not borrow more than five articles from the most recent five years of publication of a journal. Needing more than five articles from the five most recent years of publications would indicate a subscription to that publication is warranted and permission from the journal is required for further reproduction and sharing.[2]

Today, as libraries engage in a variety of resource sharing activities involving the sharing and acquisition of both print and electronic resources domestically and abroad, and within local and global consortia of libraries, questions arise whether the nearly 40-year old CONTU guidelines reflect current assumptions about copyright law, fair use, and  the scholarly communication system as it presently exists.  More directly, what impact does copyright law have on the various modes of resource sharing in which libraries are engaged? What about license agreements? With libraries now collecting more digital content than print, how are libraries protecting copyright and fair use, observing the Rule of 5, and also fulfilling patron expectations for access and use of electronic content? The problem with guidelines is that they have a tendency to both narrowly construe the law and create rigidity in its application. This comes out of a need for the guidelines to be acceptable to many diverse groups with competing interests.[3]

ASERL Survey Results

To gauge current practices and attitudes about these issues among ASERL members, a survey was devised in February 2014 to determine what types of resource sharing practices were in use, what  policies govern their resource sharing practices, and how copyright considerations impact lending or acquiring materials through resource sharing.[4] Twenty-six libraries of ASERL’s 38 member libraries responded. Their responses reflect a wide range of resource sharing activities across a wide geographic area and a mix of attitudes and practices regarding the application of copyright law and negotiation of e-resource licenses to their resource sharing activities.

Not surprisingly, all the survey respondents indicated that they regularly share print books via physical delivery (e.g., U.S. Mail), as well as articles or other scanned, non-returnable materials via both physical and electronic delivery. When sharing resources by these means, most members did not discriminate by library type, lending within the state, across the country or across the globe. However, most libraries indicated that they are not presently engaged in sharing of electronic books in any way, and the few that are currently loaning electronic books indicated that only a single chapter or limited excerpts are shared. The small number of libraries loaning electronic books is likely due to license restrictions. Only three ASERL libraries indicated that they regularly include provisions to permit resource sharing when they negotiate the terms of electronic book licenses, even though nearly all other respondents regularly negotiate resource or scholarly sharing rights in licenses for electronic journals and databases.

Currently, only about 1/3 of the libraries that responded to the survey employ a system for tracking these electronic resource license terms. Sample license terms provided by respondents indicate an adherence to Section 108 of the Copyright Act and the CONTU guidelines but do not reflect fair use considerations being made in resource sharing decisions. A few of these examples are below:

  • “Under the terms of this Site License, the Licensee is granted the non-exclusive right to supply (whether by post, fax or secure electronic transmission, using Ariel or its equivalent, whereby the electronic file is deleted immediately after print) to an authorized user of another USA library for the purposes of research or private study and not for commercial use, a single paper copy of an electronic original or an individual document from a journal for which a subscription has been paid at the full current subscription rate, in compliance with Section 108 of the United State Copyright Law and with guidelines developed by the National Commission on New Technological Uses of Copyrighted Works (CONTU Guidelines).”
  • “The Institutions shall be permitted to use Reasonable Amounts of the Licensed Materials to fulfill occasional requests from other, non participating institutions, a practice commonly called Inter-Library Loan. Customer agrees to fulfill such requests in compliance with Section 108 of the United States Copyright Law (17 USC §108, “Limitations on exclusive rights: Reproduction by libraries and archives”) and the Guidelines for the Proviso of Subsection 108(2g)(2) prepared by the National Commission on New Technological Uses of Copyrighted Works (CONTU).”
  • “Licensee may fulfill a reasonable number of requests for Interlibrary Loan of the Licensed Materials from institutions not participating in this Agreement, provided such requests comply with Section 108 of the United States Copyright Law (17 USC §108) and clause 3 of the Guidelines for the Proviso of Subsection 108(g)(2) prepared by the National Commission on New Technological Uses of Copyrighted Works (CONTU Guidelines). Licensee may use print or electronic copies derived directly or indirectly from the Licensed Materials for the purpose of Interlibrary Loan with the same limitations that prevail for paper copies for that purpose made from print journals.”

All of the responding libraries indicated that they employ the CONTU guidelines when making resource sharing decisions. Sixteen of the responding libraries indicated that their resource sharing practices have been codified into a formal written policy. Eleven of those policies specifically address copyright compliance in resource sharing. Most of the respondents have designated someone within the library to handle questions of copyright compliance as pertains to resource sharing:

 

Title of Person Responsible for Copyright Compliance in Resource Sharing Number of Schools
Borrowing Services/ILL Librarian 15
Access Services Librarian 1
Dean or Director 2
Library Assistant 2
Scholarly Communications Librarian 2

 

In assuring copyright compliance, almost all responding ASERL libraries indicated that they use the Copyright Clearance Center for processing copyright permissions and fees. And although not reflected in the sample license terms provided above, almost all respondents indicated that they consider the principles of fair use when making decisions related to resource sharing. Further, about half of the respondents stated that their staff checks for an open access equivalent – whether it be in an institutional repository, HathiTrust, Internet Archive or some other OA resource – when responding to patron requests for items not owned by the library.

At the conclusion of the survey, respondents were asked to share any final thoughts they had on copyright and resource sharing. One respondent highlighted the growing complexities of international copyright laws and restrictions on interlibrary loan. This is an issue that has come up in the literature and in the news in recent years and will likely continue to cause libraries headaches as US universities establish campuses overseas, the number of online students in other countries expands, and the willingness to lend items to institutions in other countries grows. Other respondents commented on the restrictions in licenses with regard to sharing e-book content with persons outside the subscribing institution. Finally, technological hurdles were also cited as an impediment to lending electronic books.

 Conclusion

Resource sharing as a library service has grown exponentially since its advent 50 years ago. Changes in technology have expanded the ability of libraries to share and acquire more information efficiently and quickly, but the failure of copyright law to similarly adapt and change has complicated policy and decision making. As a result, libraries have continued to rely on outdated guidelines and encountered difficulties in negotiating license terms that have raised questions and challenges about the future of resource sharing as a service. The experiences and practices of ASERL libraries demonstrates that the issue of copyright compliance and best practices in resource sharing requires further examination, discussion, and revision in order to meet patrons needs for ready access to scholarly information and assure the principles of fair use are preserved.

Fair use has become increasingly important to the way libraries provide information as evidenced by not only court cases testing the boundaries of fair use in libraries but also the development and promotion of best practices for fair use in libraries. However, reliance upon the outdated “Rule of 5” may hinder utilization of fair use by restricting libraries to numerical guidelines where a broader view of the principles of fair use may be, in application, more equitable to the rights of users and  the rights of copyright holders as well. Further, ASERL members’ experiences demonstrate that licensing practices do not always allow libraries to utilize fair use for purposes of resource sharing. Finally, the growing availability of open access resources demands a need for staff training and workflow revision.

 

[1] Norman D. Stevens. “Library Networks and Resource Sharing in the United States: An Historical and Philosophical Overview.” Journal of the American Society for Information Science, vol. 31, no. 6 (1980): 405-412.

[2] William Gray Potter. “Scholarly Publishing, Copyright and the Future of Resource Sharing.” Journal of Library Administration. Vol. 21, no. 1-2 (1995): 49-66.

[3] Kenneth Crews. “The Law of Fair Use and the Illusion of Fair Use Guidelines.” Ohio State Law Journal, vol. 62, no. 2 (2001): 599-702.

[4] See the full survey results at http://www.aserl.org/?attachment_id=4118.

Scholasticus: When is showing a film a public performance?

I have asked my university’s library to purchase a film that I intend to show and discuss in my class. The company selling the DVD indicates that the library must purchase the more expensive “college/university” copy so that public performance rights are secured. Is showing a film in my class a public performance?

Any librarian who has worked in acquisitions or who has been a selector for their institution’s library has encountered the ethical dilemma of whether to purchase the institutional copy of a DVD. Most distributors of documentary films will list in their catalogs or on their web sites tiered pricing for individuals, public libraries, primary and secondary schools, and colleges or universities. An explanation typically accompanies the pricing scheme that the higher price charged to the various institutions accounts for the inclusion of a public performance license. Most college or university libraries, without question or challenge, pay the higher price – and often the only group viewing of the film occurs in class.  So, must the library pay the public performance license price if the only intended viewing of the film is by patrons in private viewing session (even if in the library) or in the physical classroom by a class and its instructor during a regular class session? The answer is: No.

Nothing in the Copyright Act prohibits a library from purchasing DVDs (even those labeled for Home Viewing Only, as is often the case with Hollywood-produced films released on DVD) and lending or renting them to their patrons for personal viewing. Further, under § 110(1) of the Act, educators are permitted to perform or display audiovisual works in a physical classroom setting as part of instructional activities. Thus, purchase of a public performance license is not required for DVDs purchased for and used for these purposes. A public performance license is necessary, however, when a DVD in a library’s collection is going to be screened in a public location on campus by a club or other group or if the library itself is going to show the film. Only if the library knows when purchasing the DVD that these latter uses are intended should it feel compelled to pay the higher price charged. Otherwise, a college or university library is not in violation of copyright law, and shouldn’t be threatened into paying the higher purchase price,when acquiring a DVD without a public performance license for its collection.

 

(A special thanks to my former Graduate Assistant (who is also a lawyer and now an academic librarian) for inspiring this edition of Scholasticus.)

Scholasticus: License and Registration, Please.

Does an author have to register a work with Copyright Office in Washington in order to have a copyright in his work?

Once a work is created in a fixed and tangible form, copyright ownership immediately vests in the creator of the work. Registration or publication of notice with the Copyright Office is not required. Further, use of a copyright symbol or similar notation is no longer required in order to claim copyright in an authored or created work.  However, registration does become important if infringement occurs and the owner wishes to pursue legal remedies.  Registration, particularly if done in a timely manner, creates a legal presumption of validity and allows an owner to recover a certain level of damages and fees. Further, registration can help defend against a claim of innocent infringement, which mitigates against an award of damages. It is important to remember that even if an owner registers his or her copyright in a work, the exemption of fair use still applies.

Aside from formal registration, another means that creators and authors can use to give notice of not only their status as owner of a work but also of their extension of permission to use their work is through a Creative Commons license.  Copyright law, as written, creates an “all rights reserved” form of license. However, persons interested in the sharing of knowledge, the creation of new culture, and the encouragement of further scholarship can designate through a Creative Commons license commercial and/or non-commercial uses of their work that are permitted.  There are a variety of free licenses that can be displayed. Creators and authors can determine, by answering a few simple questions, what license best applies to the permissions they want to grant. Use of Creative Commons is a great way of achieving balance within the current copyright system.

The Message or the Messenger?

The Copyright Clearance Center (CCC) released today a brief marketing video advertising its annual copyright license for academic institutions. By paying for the license, institutions have “ready and easy” access to copyrighted materials covered by the license for use in coursepacks, e-reserves, and course management systems.  There is no mention of how paying for this license includes paying for uses that would otherwise not require permission.  Last week, a colleague at another institution directed my attention to another recently posted video on CCC’s site; this video is targeted, in a rather creative and humorous way, toward faculty and students. The video presents the black letter of the law, including a brief explanation of fair use, but with a subtle overtone of fear and guilt for using an author’s work without compensation. Notably, there is no indication or mention of how CCC is funding the lawsuit against Georgia State University for copyright infringement.

Ironically, another “Code of Best Practices in Fair Use” was released today by the Center for Social Media. This latest Code is for poets; previously, the Center produced codes of best practices for documentary film makers, online video creators, and dance performers.  A Code for academic librarians, prepared by the Center and the Association of Research Libraries, is currently being researched and drafted.  The general sentiment of these Codes is the promotion of the liberal use of copyrighted materials without permission or compensation; the creation of new culture preferred over compensation for owners. Further, the Codes are offered as an alternative to the oft-criticized guidelines put forth by Congress and others. However, as I’ve posed previously, the choice of a Code or Guidelines is more a matter of semantics than valid and binding interpretation. A similar issue concerning copyright and the interpretation by users and owners persists in Canada.  The public comment period for Bill C-32, which reforms Canada’s copyright law to expand and clarify fair dealing for education, will soon conclude. The state of the Tariff on Secondary Education remains in limbo. On one side of these issues is Access Copyright, an organization like CCC, whose business is to sell annual licenses to academic institutions; on the other, institutions, faculty and students championing free and liberal use. While Access Copyright is not currently funding any litigation, it is the primary author and proponent of the tariff; it is also a vocal objector to C-32.

In both cases, I do not fully support one side or the other. Behind each message is a messenger with motives, which I may or may not agree with. Of course, in practice, standing in the middle and maintaining an unbiased and objective stance is challenging, particularly when dealing on a daily basis with persons representing the viewpoints on both sides of the fair use vs. fair compensation question. But until the message I hear is one from a legislative or judicial messenger, that is where I will remain standing.

The Terms that Bind

Accompanying nearly every item of electronic technology, whether it is software, database, or digital media device, is a document that dictates how that technology may be used. These documents, known more commonly as “terms of use” or “license agreements,” are contractually binding on both the provider and the consumer, even if that consumer is an academic institution and its constituents. A common misconception amongst users of electronic technology in an academic context is that these terms of use can be eschewed on grounds of educational fair use or academic freedom.

One example of such misconception is the use of Netflix subscriptions by academic libraries. Following the publication of an article in Library Trends detailing the workflow created at a community college library to manage a Netflix subscription, how the subscription was used as a tool for collection development, and the limitations of a subscription compared to library ownership of media, several libraries spoke out about their own experiences utilizing Netflix on an institutional basis. In response, several publications, including the Chronicle of Higher Education and American Libraries, reflected upon the legalities of this practice. The author of the Library Trends piece indicated that the library’s Netflix subscription complied with federal copyright law because teaching faculty were permitted to display legally obtained films in a face-to-face classroom situation. While her interpretation of copyright law is correct, whether or not the films were obtained “legally” is doubtful. Per the Netflix Terms of Use agreed to by any one subscribing to their service, “use of the Netflix service … is solely for your personal and non-commercial use.” This indicates that use of the Netflix service by an institution to circulate videos to their service population is a violation of these terms, which in essence is a breach of contract. Academic copyright expert and attorney Kevin Smith agrees. As quoted in the Chronicle, Smith states: “My personal opinion is that the risk of a contract problem makes it not worthwhile for us to have a program to lend discs that we borrow from Netflix.  It’s not a copyright issue. It’s an issue of the contract between the user and Netflix.”  Further, Netflix does not offer institutional subscriptions and “frowns upon” libraries loaning Netflix DVDs or video stream to faculty members to share with students.

Another common misunderstanding arises in the use of full text materials accessible through licensed databases. While libraries and universities strive to include the most liberal of usage terms when negotiating licenses for scholarly databases, oftentimes use is curtailed in the interest of access. Institutions are forced to not only pay high subscription costs but also bargain away certain uses in order to secure convenient and complete electronic access to full text scholarly journals for faculty and students. Yale University maintains an excellent web site dedicated to promoting the creation of agreements with publishers that assure access to knowledge. The site also provides links to many of the most common scholarly content publishers and hosts licenses. As an example of the challenge faced by libraries and academic institutions when trying to serve the needs of their community and at the same time comply with the legally binding terms of the publishers’ agreements, review the Terms and Conditions of Use of JSTOR. Paragraphs 2.1 and 2.2 specify the permitted and prohibited uses of content found on JSTOR. Pursuant to paragraph 2.1 “Authorized Users may search, view, reproduce, display, download, print, perform, and distribute Licensed Content” for a variety of purposes, including research activities and classroom instruction; however, such uses will be deemed in violation of the terms of the license should they appear to be any of the practices detailed in paragraph 2.2, such as the reproduction or distribution of content in bulk in course packs or electronic reserves. As stated previously, this reality is a reason why the academic community should champion open access.

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