Copyright touches many library services because we collect, share and loan original works fixed in a wide variety of tangible media. The Copyright Resources Center conducted a series of informational interviews with faculty and staff from various areas of The Ohio State University Libraries to discuss the ways in which they engage with copyright issues. This blog series documents those conversations, and highlights how copyright law helps to shape services provided by the Libraries. See all available posts in the series here.
Brian Miller, Head of Interlibrary Services
Interlibrary services at The OSU Libraries comprise three categories: lending, borrowing, and document delivery. Lending services consist of loaning physical copies and scans of shorter materials to other institutions, while borrowing activities involve obtaining copies from other institutions to fulfill requests from OSU-affiliated patrons. Document delivery is a service where we provide scans from our own locally held print collections to members of the OSU community. Brian Miller, Head of Interlibrary Services, met with me to discuss how copyright weaves through all three services. Interlibrary services are influenced by community practices established in the National Commission on New Technological Uses of Copyright Works (CONTU) final report from 1978, known as the CONTU guidelines, and the statutory provisions of U.S. Copyright Law.
Section 109 of the U.S. Copyright Law, often called the ‘first sale doctrine’ or ‘right of first sale’, entitles the owner of a physical copy of a work to sell or otherwise dispose of that copy without any restrictions or requiring permissions from the copyright owner. Under this law, a person may resell, give away, loan, alter, or destroy his physical copy of a copyrighted work. Libraries lend books, CDs, and other copyrighted works to their patrons directly and to other institutions under this statute. However, Section 109 provisions do not permit creating and distributing new copies of a work such as scanning and sharing the scanned copy of a book, nor does Section 109 authorize the sharing of licensed materials such as libraries’ subscription based content (e.g. electronic book/journal subscriptions).
In the event that a library cannot loan an original item, they may make copies under Section 108 of the Copyright Law, although this provision is subject to certain restrictions for both the borrower and the lender. When lending materials, Brian’s team ensures that requests for materials are marked either CCG or CCL by the borrowing library before lending scans of materials from the OSU Libraries; these acronyms indicate that the borrower is affirming that their request complies with community copyright guidelines or copyright law. If another library requests a scan of an entire copyrighted journal or book from the OSUL collections, Brian’s team offers a loan of the print version or a scan of a specific article if the borrower can reduce their request. Interlibrary Services will scan larger selections from public domain works as copyright is not an issue, although staff time can be a limiting factor. Brian also works with the Libraries’ acquisitions team to negotiate with digital content providers for the right to use the licensed material to fulfill interlibrary loan requests.
Section 108 does not authorize libraries to borrow copies in “aggregate quantities” that might “substitute for a subscription to or purchase of” the materials. The law does not specify the number of permissible copies under Section 108, but guidelines presented in the CONTU final report in 1978 established the “rule of five.” The rule of five suggests that more than five copies filled in a calendar year from a particular work within five years of the publication date of the work could substitute for a subscription. This means that a library should only borrow more than five articles published within the last five years from a single journal title under the CONTU guidelines if they pay a copyright royalty fee for the sixth article and beyond to the copyright owner. Many libraries (including the OSU Libraries) follow these established community guidelines; however, the CONTU guidelines are not law and it is not automatically illegal to exceed the rule of five. Libraries may also consider borrowing and lending materials under fair use.
Document delivery service — where we provide scans from our own print collections to members of the OSU community — relies on the fair use provision included in the U.S. Copyright Law (Section 107). Brian’s team rejects requests for materials that seem to exceed the bounds of fair use, but they are generally able to fulfill requests for scans of a few articles from a journal issue or chapters from a book to OSU patrons. All scans provided through document delivery (as well as any copies obtained from other libraries) are accompanied by a coversheet that displays a copyright warning advising the recipient that the work may be subject to copyright and that the work is provided for the purpose of private study.
This blog has presented a snapshot of the impact copyright has on just one area of the Libraries. Copyright affects libraries and higher education in a multitude of ways, often with idiosyncrasies particular to various subjects and disciplines. Additional posts in this series explore other instances in which copyright affects library services and collections; you can see all available posts in the series here.
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By Jessica Chan, Rights Management Specialist at the Copyright Resources Center, The Ohio State University Libraries
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