Statement of the AAP on Document Delivery

Statement of the AAP on Document Delivery

Postby admin » Sat Dec 23, 2017 4:30 am

Statement of the AAP on Document Delivery
by American Association of Publishers
April 13, 1994

NOTICE: THIS WORK MAY BE PROTECTED BY COPYRIGHT

YOU ARE REQUIRED TO READ THE COPYRIGHT NOTICE AT THIS LINK BEFORE YOU READ THE FOLLOWING WORK, THAT IS AVAILABLE SOLELY FOR PRIVATE STUDY, SCHOLARSHIP OR RESEARCH PURSUANT TO 17 U.S.C. SECTION 107 AND 108. IN THE EVENT THAT THE LIBRARY DETERMINES THAT UNLAWFUL COPYING OF THIS WORK HAS OCCURRED, THE LIBRARY HAS THE RIGHT TO BLOCK THE I.P. ADDRESS AT WHICH THE UNLAWFUL COPYING APPEARED TO HAVE OCCURRED. THANK YOU FOR RESPECTING THE RIGHTS OF COPYRIGHT OWNERS.


The copyright law provides the copyright holder with the exclusive right to control the making of copies of a copyrighted work. Exceptions to this exclusive right are intended to permit limited, occasional copying for individuals in particular circumstances which will not impair the rights of the copyright holder, nor generate regular business-like activities based on usurpation of copyright owners' rights, markets, or materials.

Section 108 of the Copyright Act, for example, specifies that libraries may make copies under certain conditions; among these are that there be no direct or indirect commercial advantage, and that there be no "systematic" copying of even single copies. Moreover, the Act, legislative history, and case law make quite clear that copyright owners have valuable and protected interests in the licensing of their rights to others, as well as in the sale of their products; that non-profit uses are subject to the rights of copyright owners; and that de facto coordination of copying and purchase activity among customers, and the development of services -- whether "private" or "public" -- for the specific purposes of providing customers with copies, are beyond the limited exceptions to copyright owners' rights.

It follows that a commercial document delivery service engaging in the copying and redistribution of single and multiple copies of copyrighted articles must secure permission from and (if requested) pay royalties to the copyright holder. The case is not materially different for the newly-emerged, fee-based and technology-enhanced copying and distribution services of libraries, or for systems based on barter, exchange, or similar services being coordinated as "interlibrary loan." These activities are indistinguishable in purpose and effect from those of commercial document suppliers. They are also not permissible under the CONTU Guidelines governing the copying done to support the practice of interlibrary lending.

The purpose of the copyright law is to ensure authors and publishers the economic wherewithal to devote their energies, talents and funds to the creation and effective packaging and distribution of intellectual works. The publishers' revenue base of sales, subscriptions, and royalties is essential to scholarship, research, education and simple enjoyment of the written word. Its vitality should not be sapped by rampant, unauthorized document supply, whether from commercial or non-profit sectors.

April 13, 1994

Background to the AAP Statement on Document Delivery

In order to understand the copyright law's treatment of library photocopying, it is necessary to understand the judicial history that led to the crafting of its text. In 1968, the Williams and Wilkins Publishing Company brought a copyright infringement case against the National Institutes of Health and the National Library of Medicine. NIH had been making photocopies of copyrighted articles for internal distribution and NLM had been distributing photocopies of copyrighted articles for distribution to other libraries under its "interlibrary loan" program.

A hearing examiner determined that such copying was not fair use ("Whatever the bounds of 'fair use' as defined and applied by the courts, defendant is clearly outside those bounds"), but his decision was reversed by the Court of Claims. Reasons for the reversal included certain ambiguities in the language of the 1909 copyright act; a concern that medical science might be hampered by a prohibition on copying due in part to the fact that alternative document delivery systems did not, at that time, exist; the existence of some restrictions on page count and multiple copies in place at NLM and a practice at NIH that did not permit copying for non-NIH personnel; and the fact that, absent photocopying, the delay in waiting for the original article might cause some researchers to forgo use of the materials.

The court also urged Congress to clarify this situation in the new copyright act which was then under consideration. (The Senate Report notes that the opinion of the Court of Claims said the Court was engaged in "a `holding operation' in the interim period before Congress enacted its preferred solution.") The Supreme Court heard arguments but, because the Justices were evenly divided 4-4, wrote no conclusive opinion establishing national fair use doctrine. That result deprived the case of meaningful precedential weight but allowed the decision below, holding that such photocopying, under the 1909 Act, was fair use, to stand.

1976 COPYRIGHT ACT

Congress paid close attention to the Williams & Wilkins case in drafting the 1976 Copyright Act, particularly by prohibiting "systematic" copying:

Section 108 (g): [Libraries'] rights of reproduction and distribution under this section extend to the isolated and unrelated reproduction or distribution of a single copy...but do not extend to cases where the library or archives, or its employee...engages in the systematic reproduction or distribution of single or multiple copies...


The Senate Report, in describing this prohibition, states:

While it is not possible to formulate specific definitions of "systematic copying", the following examples serve to illustrate some of the copying prohibited by subsection (g).

(1) A library with a collection of journals in biology informs other libraries with similar collections that it will maintain and build its own collection and will make copies of articles from these journals available to them and their patrons on request. Accordingly, the other libraries discontinue or refrain from purchasing subscriptions to these journals and fulfill their patrons' requests for articles by obtaining photocopies from the source library.


* * *

(3) Several branches of a library system agree that one branch will subscribe to particular journals in lieu of each branch purchasing its own subscriptions, and the one subscribing branch will reproduce copies of articles from the publication for users of the other branches.


These two examples both reflect and are responsive to the type of copying that was the subject of the Williams and Wilkins case, and has become so troubling for the publishing industry today. The omitted example "(2)" referred to inhouse copying and not document delivery.

House Added Proviso that Became Law

During consideration of the 1976 Act by the House of Representatives (following the Senate action), language was added to Section 108 (g) in response to concerns raised by the library community that on occasion librarians request a photocopy of an article from another library's holdings to satisfy a patron. They pointed out that usually in these cases they would not choose to subscribe to the journal because it had no ongoing relevance to their clientele. These incidental, sporadic and cumbersome-to-fill requests were described as "interlibrary loans," from the days when the actual tangible book or journal was loaned to the requesting library. The House then inserted the following proviso to Section 108 (g):

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 or phonorecords for distribution does so in such aggregate quantities as to substitute for a subscription to or purchase of such work.


CONTU Guidelines on Interlibrary Loans

The library and publishing communities met under the auspices of the National Commission on New Technological Uses of Copyrighted Works (CONTU) to develop guidelines for construing the "substitution for subscription/purchase" language of the proviso. They reached agreement with respect to the most common sorts of such interlibrary loans: articles from journal issues under 5 years old. Librarians noted that when they got more than five requests per year for materials from a given title, they typically entered a subscription because that number shows sufficient interest to warrant adding the journal to the library's collection, and because ILL "borrowing" is costly in its own right.

The CONTU-assisted guidelines appear in the Conference Report and provide some limits as to what copying may be done under the proviso. These guidelines were created in the "low tech" Interlibrary Loan (ILL) environment of the late 1970's: generally cumbersome, slow, unthreatening photocopying designed to fill certain ILL requests incidental to the library's overall activity. The CONTU Report itself indicated that the guidelines would not apply to institutions specializing in document delivery services:

The point has been made that the present practice on interlibrary loans and use of photocopies in lieu of loans may be supplemented or even largely replaced by a system in which one or more agencies or institutions, public or private, exist for the specific purpose of providing a central source for photocopies. Of course, these guidelines would not apply to such a situation.


The Situation Today

The situation today is that the advent of post-1976 technologies -- fax machines, computer networks, low-priced scanners and CD-ROM's -- has facilitated the interlibrary delivery of photocopies of articles and chapter-length excerpts from books and generated services focussed on this conduct. In addition, publishers are exploiting the market for single copies either directly or through one or several document services or by participating in the Copyright Clearance Center. Some libraries and similar institutions provide copies of articles but do not pay royalties to publishers because the copying is, according to them, "interlibrary loan and permissible under the CONTU guidelines." However, as stated above, this copying is far beyond that permitted under CONTU and therefore, may be done only with permission of copyright holders.

Additionally, librarians have vigorously promoted "resource sharing" which amounts to nothing less than the Senate's third example of forbidden coordinated subscription buying to "save money" by filling patron needs from source libraries. This copying and document delivery far exceeds the scope of interlibrary "lending" contemplated by Congress or CONTU in permitting interlibrary loan arrangements under the proviso. When the push for resource sharing and the development of consortia are combined with the new networks and even the existing inter-university network (Internet), one sees a formula for the erosion of publishing revenues in this country, from: (1) lost book and journal subscription sales, (2) lost royalty income from licensing, and (3) lost new product opportunities. The revenue base that now supports publishing relies on multiple opportunities to exploit a product such as income from sales, subscriptions, and licenses. The interlibrary copying without permission and other non-authorized document delivery denies the copyright owner its rights under the law.
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