2005 ILL Guidelines - Copyright Compliance

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Copyright Compliance

Copyright law is complicated, and library staff seeking a full understanding of the ways that copyright affects library operations should consult additional books and articles on the subject. In this section an attempt is made to summarize the principles which apply to making a copy of a work for a single customer's personal use as this is the primary transaction involved in interlibrary loan.

Copyright Act of 1976 - Section 108

Section 108 of the Copyright Act of 1976 lists five basic requirements for making single copies of a printed copyrighted work for a library customer. The requirements apply to a customer making a request at a local library or for requests from another library on behalf of its customer. This right to copy does not apply, in general, to musical, pictorial, graphic sculptural works or motion pictures or other audiovisual works, except audiovisual works dealing with the news.

• The customer must initiate the request.
• The copy must be no more than one article or other contribution to a copyrighted collection or periodical issue or a small part of any other work.
• The copy must become the property of the customer.
• The library must have no notice that the copy will be used for any purpose other than private study, scholarship, or research
  
  For this purpose notice consists of actual knowledge of how a copy will be used, receipt of notice or notification of how a copy will be used, or reason to know how a copy will be used from all the facts and circumstances known at the time in question.
• The library or archives must display a "warning of copyright" where the orders are accepted and on its order form.

An entire work or a substantial part of a work may be copied if all of the above requirements are met, except the second one, and if the library or archives has first determined, on the basis of a reasonable investigation, that a copy or phonorecord of the copyrighted work cannot be obtained at a fair price.

Section 108 also states that libraries and archives may participate "in interlibrary arrangements that do not have, as their purpose or effect, that the library or archives receiving such copies or phonorecords for distribution does so in such aggregate quantities as to substitute for a subscription to or purchase of such a work." The National Commission on New Technological Uses of Copyrighted Works (CONTU) developed guidelines which serve a workable interpretation of this section in relation to interlibrary loan photocopying of periodical articles published within five years of the date of the interlibrary loan request.

The basic components of the CONTU guidelines are as follows:

• The guidelines only apply to periodical article issues published within five years of the customer's request.
• Within one calendar year, a requesting library or archives may receive no more than five copies of an article or articles published in any given periodical. This includes all issues of the periodical published in the last five years, as opposed to a single issue of the periodical.
• Interlibrary loan requests for copies or phonorecords of other materials, such as fiction, poetry, contributions to copyrighted collections, or a small part of any other copyrighted work, may not exceed five copies or phonorecords of or from any given work (including a collective work) during the entire period when such material shall be protected by copyright.
• If the library or archives which is requesting the article has subscribed to a periodical or has ordered other copyrighted materials, but they are not available, the duplication will not be considered as interlibrary loan. Rather, requirements for such duplication will fall under provisions for copying from the library's or archives' own collections.
• Requests for copies or phonorecords of materials may not be filled unless the library or archives states that the request conforms to the CONTU guidelines.
• The requesting library or archives must maintain records of all duplication requests it makes and retain the records for three years after the end of the year in which the request was made.

Copyright Act of 1976 - Section 107

Section 107 of the Copyright Act of 1976 is often referred to as the "fair use" clause. This section provides that "fair use" of a copyrighted material is not an infringement of the owner's copyright in some instances.

Section 107 states:

"Notwithstanding the provisions of section 106, the fair use of a copyrighted work, including such use by reproduction in copies of phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright." In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include:

1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
2. the nature of the copyrighted work;
3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. the effect of the use upon the potential market for or value of the copyrighted work.

Copyright compliance codes

The requestor, not the supplier, is responsible for assuring that the request is appropriate under the law. To assure the supplying library that the request conforms to the law, the requesting library should use one of the following "copyright compliance codes".

CCG - Conforms to Copyright Guidelines

This code is used:

• When the requesting library does not own a title and has received less than five articles from the current five years of that title. Counting starts over each year.
• When the requesting library owns the material, has ordered it or has placed a subscription. In this case it is treated like a copy from the requestor's own collection. As long as the copying would have been fair use locally, it is fair use on interlibrary loan.

CCL - Conforms to Copyright Law

This code is used:

• When the material is in the public domain.
• When the requesting library believes that the reproduction and distribution of the copy is a fair use.
• When the requested copy becomes the property of the user and the request is for an entire work or a substantial part of a work, and the requesting library has determined that a copy cannot be obtained at a fair price.
• When the requested copy becomes the property of the user and the requested photocopy is from materials published earlier than five years prior to the date of the request and therefore not covered by the CONTU Guidelines.
• When the requested copy becomes part of the collection of the requesting library and the requesting library has determined, after reasonable investigation, that an unused replacement is unavailable at a fair price.

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For questions about this information, contact Martha Berninger (608) 224-6168

Last updated on 11/26/2008 11:54:38 AM