The Copyright Act of 1976 (Title 17 of the United States Code Annotated) establishes certain requirements for libraries that participate in interlibrary loan activities involving photocopying or some other form of duplication. Copyright law should be considered when developing a library's lending and borrowing policies.
The following sections of the copyright law have particular importance to librarians:
Section 106 defines the exclusive rights of copyright owners;
Section 107 recognizes the doctrine of "fair use" and limits the exclusive rights of copyright owners granted in Section 106;
Section 108 further limits the exclusive rights of copyright owners, and authorizes the reproduction of copies by libraries in certain situations.
Also of importance is the Commission on New Technological Uses of Copyrighted Works (CONTU) Guidelines for the Proviso of Subsection 108(g)(2). These guidelines define the number of copies, which would constitute substitution for the purchase of a subscription of title by a borrowing library. The guidelines are not part of the law, but are considered in judicial interpretation.
Under the Copyright Act of 1976 and CONTU Guidelines, a borrowing library must:
* Post a "Display Warning of Copyright" at locations where interlibrary loan requests are accepted.
* Include an "Order Warning of Copyright" on application forms used to request copies.
* Evaluate each photocopy in accordance with Sections 107 and 108 and determine whether the request falls within the requirements of the law or the CONTU Guidelines.
* Maintain records as required by law.
Lending libraries also have certain obligations. A lending library must:
* Accept only those copy requests that indicate that the borrowing library is in compliance with the law or CONTU Guidelines.
* Include a notice of copyright on all photocopies supplied.
When requesting an interlibrary loan that will be filled by a photocopy, the requesting librarians must determine whether the request complies with the Copyright Law or the CONTU Guidelines. Four criteria may be used to determine whether a given reproduction is or is not fair use (Section 107). These are:
* Educational, not commercial use;
* The nature of the work. (It is not a "Consumable material such as a workbook")
* The brevity of the work. The article must be 2,500 words or less;
* Spontaneity. (There has been insufficient time to secure permission for reproduction from the copyright owner).
Section 108 addresses certain rights not discussed under the concept of fair use as defined above. The key subsection is 108(g) which states: "...Provided, that nothing in this clause prevents a library or archives from participating in interlibrary arrangements that do not have, as their purpose or effect, that the library or archives receiving such copies...for distribution does so in such aggregate quantities as to substitute for a subscription to or purchase of such works."
The law does not define how many copies constitute substitution. This issue is addressed in the CONTU Guidelines. The Guidelines state that a library may not receive more than five photocopies in a single calendar year from a copyrighted journal title published in the last five years. The CONTU Guidelines also address the question of copies of portions of copyrighted works other than periodicals. Libraries may receive no more than five photocopies per year per title as long as the copyright on the material is in effect.
There are exceptions to the CONTU Guidelines. If the library owns the material, but is unable to supply a copy because the item is damaged or lost, the "rule of five" is waived. The rule is also waived if the library has entered a subscription for the title. CONTU Guidelines do not address photocopying of journal articles more than five years old.
III. INITIATING REQUESTS
Once the librarian has determined that a request falls within the requirements of the law or the CONTU Guidelines, this must be noted on the interlibrary loan request form. Each electronic request must also include the appropriate copyright statement. The requesting library must check one of the two compliance code boxes on the ALA approved ILL form. (see Section 12 of Appendix 12, ALA Interlibrary Loan Form Procedures).
Mark the box CCG (Complies with Copyright Guidelines) if the journal was published within the last five years and the request meets one of the following criteria:
* During the present year, there have been no more than five requests for articles from that journal title, for the last five years by publication date, OR
* A subscription to the journal has been ordered, OR
* The library has a subscription, but the needed issue is missing, damaged or at the bindery.
Mark the Box CCL (Complies with Copyright Law) if the request confirms to one of these rules:
* The material is for an individual user and;
- cannot be obtained at a fair price, OR
- the material is for a teacher who has complied with Agreement on Guidelines for Classroom Copying (see Copyright Law), OR
- the requesting library believes the item is within "fair use", OR
- the material is from a journal, which has a publication date not within the previous five years
* The material is for the library and:
- replaces damaged or destroyed materials which cannot be purchased at a fair price, OR
- the requesting library believes reproduction would be "fair use"
IV. DISPLAY WARNINGS
The copyright law requires a library to post a Display Warning of Copyright at all locations where requests for copies are accepted. An Order Warning of Copyright must be included on any in-house forms, which a library provides for submitting copy requests. The text of both Warning Notices shall read:
NOTICE: WARNING CONCERNING COPYRIGHT RESTRICTIONS. THE COPYRIGHT LAW OF THE UNITED STATES (TITLE 17, UNITED STATES CODE) GOVERNS THE MAKING OF PHOTOCOPIES OR OTHER REPRODUCTIONS OF COPYRIGHT MATERIAL.
UNDER CERTAIN CONDITIONS SPECIFIED IN THE LAW, LIBRARIES AND ARCHIVES ARE AUTHORIZED TO FURNISH A PHOTOCOPY OR OTHER REPRODUCTION. ONE OF THESE SPECIFIED 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.
A Display Warning of Copyright should be printed on heavy paper or other durable material in type at lest 18 points in size, and displayed prominently in the place where orders are accepted. An Order Warning of Copyright should be printed on the order form in type no smaller than 8 points.
Copyright Law emphasizes the need for a notice of copyright at unattended copying machines so that the library is not liable for copyright infringement by individuals using these machines. The recommended working is as follows:
NOTICE: THE COPYRIGHT LAW OF THE UNITED STATES (TITLE 17, U.S. CODE) GOVERNS THE MAKING OF PHOTOCOPIES OR OTHER REPRODUCTIONS OF COPYRIGHTED MATERIALS. THE PERSON USING THIS EQUIPMENT IS LIABLE FOR ANY INFRINGEMENTS.
V. COPYRIGHT RECORDS
The borrowing library should maintain records, which indicate the number of times a journal title or book title has been requested for photocopying. A file, arranged by titles, should be maintained for all requests made for copyrighted books and journals published within the last five years. An alternative method would be to maintain a file by year. These records should be kept for three years in order to comply with the Copyright Guidelines.
Before requesting an interlibrary loan, check the copyright compliance records. According to the Copyright Guidelines, any title, which has been requested, for photocopying more than five times should be considered for purchase.
Libraries might explore the use of the Copyright Clearance Center (CCC) if their photocopy requests do not fall within the copyright law or guidelines. For a fee, the CCC may grant permission to copy materials registered with them.
WARNING CONCERNING COPYRIGHT
The copyright law of the United States (Title 17,
United States Code) governs the making of
photocopies or other reproductions of copyrights
Under certain conditions specified in the law,
libraries and archives are authorized to furnish a
photocopy or other reproduction. One of these
specified conditions is that the photocopy or
reproduction is not to be "used for any purpose
other than provide study, scholarship, or
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
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.