Everything you always wanted to know about ILL

Everything you always wanted to know about ILL and Copyright RUSA STARS Workshop Friday, January 25, 2013 Cindy Kristof Kent State University

Kent State University Libraries

Dessert? � [copyright-protected photo deleted]

My favorite ILL copyright quote “…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. )

Copyright Law 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/title 17/

Copyright’s Primary Purpose “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

What can be copyrighted? 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/title 17/)

What can’t be copyrighted? � Facts • Weights and measures • Dates of historical events • Addresses and phone numbers � Things that are not fixed • Impromptu speeches • Choreography that has not been notated or recorded • Ephemeral or transitory items or objects

“Getting” copyright � 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

Exclusive Rights – Section 106 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 by means of a digital audio transmission (Source: § 106, Title 17 U. S. Code at http: //www. copyright. gov/title 17/)

Public Domain � 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…

Exceptions to Section 106 � Fair Use – Section 107 � First Sale Doctrine – Section 109 � Exceptions for Libraries and Archives – Section 108

Fair Use – Section 107 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 � � Checklist - http: //copyright. columbia. edu/copyright/fairuse/fair-use-checklist/ Evaluator - http: //librarycopyright. net/resources/fairuse/

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

Reproduction by Libraries & Archives - Section 108 � Section 108 Spinner • 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. ◦ http: //www. librarycopyright. net/resources/spinner/

CONTU Guidelines � 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

Law vs. Guidelines � Guidelines are NOT law…

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

CONTU Guidelines � Keep records of all BORROWING requests • Filled and Unfilled • Three years • Electronic records are just fine

CONTU Guidelines � “Suggestion Rule” of Five” or “Rule of Five” or “ 5/5 • 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…

CONTU Guidelines � Latest five calendar years � January - December ◦ ◦ ◦ 2013 2012 2011 2010 2009

CONTU Guidelines � 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

No automated system? � In the absence of an automated system, keep track on paper

No automated system? � 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

Copyright Clearance Center � 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/cc 3/en/toolbar/produ cts. And. Solutions/getitnow. html �Not all publishers work with the Copyright Clearance Center

What about non-CCC titles? � 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

What about non-CCC titles? � 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

Journal of Gang Research • http: //www. ngcrc. com/ngcrc/page 2. 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. ”

Lending Libraries’ Responsibilities � 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)

Sample Lending Request

Sample Lending Request

What about Electronic Journals? License trumps law � Collaborate with Technical Services � Information and Tools • Negotiate good licenses • Read and track your licenses • Renegotiate old licenses if necessary • Croft, Janet Brennan, “Interlibrary Loan and Licensing. ” Journal of Library Administration, Vol. 42, (3 -4), 2005. • ALIAS - http: //idsproject. org/Tools/ALIAS. aspx • ERM

ERM � [copyright-protected photo deleted]

What about First Sale and ebooks? � e. Books? • Michael Levine-Clark http: //blog. oup. com/2012/07/replacing-ill-withtemporary-leases-of-ebooks/ • Heather Wicht http: //collaborativelibrarianship. org/index. php/jocl /article/view. File/163/116 • Linda Frederickson et al. http: //www. tandfonline. com/doi/abs/10. 1080/107 2303 X. 2011. 585102#preview

International Copyright - Berne � 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 ◦ ◦

International Copyright - 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. ” �

International ILL threats � First Sale • Costco v. Omega • Kirtsaeng v. Wiley � Document Delivery • International Association of Scientific, Technical & Medical Publishers (or STM)

What about Costco and Omega? � Does the “first-sale doctrine” apply to imported works manufactured abroad? • 9 th 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/

What about Kirtsaeng v. Wiley? � 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/

STM Statement… � 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/

Questions to ask yourself… � 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?

Questions? Cindy Kristof – ckristof@kent. edu http: //www. kent. edu/news/announcements/success/blac ksquirrelanniversary. cfm