Exigent Circumstances and §108 or Don’t Stop Doc Del’ing (sung to the tune of Journey’s “Don’t Stop Believin’”)
♫Giving copyright a whirl, ♪
♪Livin’ in a COVID world ♬
♫Skipped the midnight train and goin’ nowhere…. ♬
♪Don’t stop doc del’ing♫
♫Fulfill what you’re receiving♪
♪Serving all people ♫♪
I had a number of great questions last week on fair use and copyright. However, more than a few questions came up that did not need a fair use analysis – in fact, some questions would have been a a “green light” even if there wasn’t a health crisis. That’s’ the topic of today’s post: Document Delivery, Interlibrary Loan, and more in the COVID-19 world!
As I previously mentioned in the last post, I have often emphasized that libraries and archives have “superpowers” under the copyright law that allows us to supply our communities with access to materials for research, scholarship, and study. Most notably, these statutory exemptions were granted to libraries and archives by Congress to ensure our continued mission. Further, libraries can utilize technology to enhance access to materials.
One of the most critical exceptions is 17 U.S.C. §108 “Limitations on exclusive rights: Reproduction by libraries and archives.” Fundamentally, this is the core of the library copyright superpower – it’s the engine behind document delivery, interlibrary loan, preservation, digitization, format shifting, access, and a host of other uses.
Fair use may be for everyone (it is!), but §108 is for library and archives only. And §108 clearly manifests Congress’ intent to allow libraries to do all sorts of copying, digitizing, transforming, reproducing, and replicating to serve the greater mission: preservation and access to our culture – whether its poetry, textbooks, manuscripts, art, music, software, and more!
And the opening language of this exception in §108 is powerful! “[N]otwithstanding the provisions of section 106 (e.g. the copyright holder’s bundle of rights!), it is not an infringement of copyright for a library or archives, or any of its employees acting within the scope of their employment, to reproduce…or to distribute…under the conditions specified by this section.” Certain types of copying, subject to the tests under §108, is not infringement if done by a library or archive and its staff. However, if a person not affiliated with a library or archive performed this type of copying and distribution, it might be infringement. Again, it’s our community’s superpower!
Yet, as I have encountered, this library right is often left out of most curriculum in law, library, archives, and other cultural institutional degrees! Why? Well, for starters it is one of the least litigated areas of copyright law. There simply is not a lot of case discussion – the opposite of what helps drives the fair use analysis! So, we have little interpretation by the courts. And secondly, I believe, it is written so poorly, people are resistant to reading and interpreting its language. There’s lots of passive voice, multiple definitions, vague cross-referenced terms with little explanations. And this is not uncommon in written law in general.
Despite all that it can be – like fair use – and effective exception that can be harnessed in this COVID-19 crisis time. So, aspects of this law will be familiar and relevant to some (interlibrary loan for example) and some will not. I will cover some highlights for this COVID-19 crisis (not covering preservation activities, for example) and translate it to plain language, where possible.
Who gets to use §108?
To get to use this special exemption, you have to satisfy the specific conditions in §108(a) that must be met to qualify.
- Libraries copies cannot be made for any direct or in-direct commercial advantage. Are you a copy shop pretending to be a library or archive? Is the focus of your work to make copies for profit? If not, then most likely you are fine
on this part of the test.
- The collections of the library must be open to the public, available to researchers affiliated with the library, or other persons doing research in a specialized field. For many libraries, this is not a problem – they are generally “open.” And, even if the COVID-19 crisis forces the library to shutter its doors – it may be still “open” for business – sharing collections, doing interlibrary loan, letting the public access materials through online databases and subscriptions.
- And lastly, the reproduction or distribution must include a notice of copyright or a statement that the work may be protected by copyright if no notice is found on the original. This is a matter of good practice across many of the copyright exemptions in the copyright act – let the user know the materials are under copyright! (Plus, for scholarship, it’s a matter of good citation guidelines!)
Now, the exceptions granted under section 108 extend only “to the isolated and unrelated reproduction or distribution of a single copy…of the same material on separate occasions” and do not apply to “a musical work, a pictorial, graphic or sculptural work, or a motion picture or other audiovisual work other than an audiovisual work dealing with news.”
Once a library or archive has met the conditions above, what type of copies and in what situations can it copy, scan, or distribute to the community and beyond? I am focusing on a few provisions here to highlight the realities of a COVID-19 crisis
Articles, Book Chapters, or Other Short Works (§108(d))
Are your users requesting copies of works to be scanned and delivered directly to them since they are remote? Even if this wasn’t a COVID-19 crisis, you could still make some of these requests available now! §108(d) is one of the best provisions for providing users with access to works – remotely or in person. §108(d) states that a copy of one article or a short excerpt from a copyrighted work may be made at the request of the user, subject to two specific conditions.
First, the copy must become the property of the user, provided that the library has no notice that the copy will be used for any other purpose than private study, research, or scholarship. If you are at an academic institution, a public institution, or a private institution, many of your users may be requesting copies for study, research, or scholarship already. And arguably that is a broad statement, but it was intended to be broad. Copyright was designed to “promote the progress of science and the useful arts” and it does so by letting libraries provide a copy of one article or a short excerpt for study, research, or scholarship. (If they say “I’m going to sell the copies online” – then you can’t make that
copy under this test.)
Second, the library must prominently display a copyright warning notice on any request form, including print or web forms, and at the location where the orders are accepted. Again, notice like this is often required. It serves
both a risk mitigation role and as educational outreach: learn about copyright! This is the classic language you have seen in both online and on-ground forms:
Notice Warning Concerning Copyright
The copyright law of the United States (title 17, United States Code) governs the making of photocopies or other reproductions of copyrighted material.
Under certain conditions specified in the law, libraries and archives are authorized to furnish a photocopy or other reproduction. One of these specific 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 righted material.
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.
Again, we see the emphasis on private study, research, or scholarship in the (§108(d)) notice. This, again, is emphasizing the special educational, non-profit library mission under copyright to provide research to our patrons to “promote the progress of science and useful arts.”
Secondly, we see the language here is for a “short excerpt from a copyrighted work.” Again, there is no magica number for “short.” So, use your good faith judgement here. It could be a chapter or two. It could be a percentage of the work. It’s up to you: apply §108 prudently and manage risk sensibly.
Out of Print Works (§108(e))
Not every request we are receiving is for a published or in-print work! With archives, special collections, and other specialized cultural institutions also shut down, we may see more requests or rarer or generally unavailable material. This is where §108(e) comes into play. And it is not mitigated with “short” language!
Under §108(e) a copy of an entire work may be made if the library has determined: a copy cannot be obtained at a fair price, subject to the condition that the copy becomes the property of the user, the library has no notice that the copy is going to be used for any purpose other than private study, research, or scholarship, and the library must prominently display the copyright warning notice from above on any request form, including print or web forms, at the location where the copy orders are accepted.
Here the different in 108(d) and (e) is the “copy cannot be obtained at a fair price” language. There is no definition of a “fair price” in the statute. And, in fact, they use other terms in §108 to refer to price (confusing called a “reasonable price” in later sections of §108). I’d argue that a fair price and reasonable price mean the same thing – and takes into account circumstances such as the market, the work’s general availability, and your library’s budget. The market certainly depends on buying, packaging and shipping the item. Can that even be done in a COVID-19 environment? Perhaps not, which shifts the “fair price” determination significantly. Again, apply §108 prudently and manage risk sensibly.
Inter-Library Loan (§108(d), (e), and (g))
Let me make this clear: interlibrary loan functions operate whether there is a COVID-19 crisis or not! ILL is authorized in many parts of Section 108! Libraries may make copies of works for ILL and enter into interlibrary agreements. For the library that creates copies and sends them (the “lender” in ILL terminology), they must adhere to the general requirements mentioned above (§108(d) for short works/article or §108(e) for whole works/out of print works). The library that receives the copies (the “borrower”) has a different standard. They must not make so many requests “in such aggregate quantities as to substitute for” a subscription to a journal or purchase of a copyrighted work. The purpose was to prevent libraries substituting ILL article requests for purchasing a journal subscription.
(And don’t get me started on CONTU, which is NOT law. §108(g) is the law – see here for more). But all of this happens regardless of any crisis. Library advocates fought hard to include ILL in the Copyright Act of 1976, and we will continue to use this vital source to increase access.
To my friends and colleagues in interlibrary loan and document delivery – keep delivering the excellent services that you do! Your work is authorized by federal statute. Your value in times of crisis is exponential. Your work directly serves our mission and purpose – using your skills, technology to provide greater access to materials!
♪Don’t stop Doc Del’ing!♫
Editor’s Note: This Two Part article is republished with the author’s permission, with first publication on his blog.