How one company keeps track of permissions

Information Outlook, Nov, 2004 by Marcy Dunning

Complying with copyright requirements can be time consuming and frustrating. Over the past several years technology has leaped ahead of U.S. copyright law. The majority of the U.S. copyright law in effect today was written in 1976 and became effective on January 1, 1978.

Although the law has been amended in recent years, very little case law is available to interpret the act in light of the latest technology, particularly in the area of digital delivery. While the spot-light is on compliance in the areas of music and movies, journal publishers are increasingly enforcing copyright law as it applies to article, paper, and book chapter copying.

This article describe the guidelines and procedures we have developed at Access/Information, Inc., over the past several years. These include the Copyright Clearance Center reporting process and the procedures we follow when contacting a rights holder not affiliated with the center. It also discusses the process we've developed to track article-by-article inquiries and responses from rights holders.

Requirements and Ambiguities

The "first sale" doctrine at 17 USC [section]109 (a) permits the distribution and sale of a lawfully made copy of a copyrighted work. Applying the first sale doctrine to a printed publication is simple. If you have a lawful copy, you may resell or otherwise distribute this one and only copy to a third party. It is more difficult to apply the first sale doctrine to articles distributed electronically by publishers that must be saved on a hard drive or printed out because in many cases the electronic link disappears within a certain time frame. Is saving the copy on your hard drive and then printing the copy still permissible under the first sale doctrine? Or are you now making two copies?

To guide us and ensure that we are in compliance, our intellectual property attorney has prepared a memo covering our obligations as document suppliers. Libraries that provide fee-based document delivery services as well as librarians in for-profit organizations need to establish their own written guidelines and procedures.

Why We Developed Our Procedures

Access/Information offers research and document delivery to clients internationally. We routinely obtain articles, conference papers, and reports as part of our document delivery service. In complying with copyright law and regulations, we make every effort to contact rights holders for permission to make a copy of any documents not in the public domain.

As a fee-based document delivery service that provides documents for many for-profit clients, A/I's copying of documents is not likely to fall under the "fair use" doctrine of the U.S. Copyright Act. The "first sale" doctrine, however, does apply to us. We've developed our procedures to ensure that we are in compliance with all applicable parts of the act and to create a record of the steps we take in our compliance efforts.

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The Role of the Copyright Clearance Center

In business since 1978, the Copyright Clearance Center defines itself as "the largest licenser of text reproduction rights in the world." CCC manages rights by representing publishers and rights holders and licensing users of the copyrighted material.

A/I has been a transactional member of CCC since the early 1980s. Before we transmit a document to a requestor, we first check the CCC database to see whether the rights holder has granted permission through CCC for paper copies or digital distribution. If digital permission is granted, we may send the document via e-mail. If only paper copying is granted, we deliver or courier the hard copy to the client. Each document is stamped with the following copyright notice: "This material is subject to the United States Copyright Law: further reproduction in violation of that law is prohibited."

Once the order is complete, we report the transaction electronically to CCC, indicating how many copies we made and distributed to our client. Generally we make only one copy, but occasionally a client requests two copies of an item. CCC then invoices us for the appropriate number of copies and we in turn bill our client. CCC gives each transaction a number, which we record on our client's order form. A typical "quick price" record is shown below.

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When the Copyright Clearance Center Is Not Enough

If the publication is not listed as a member of CCC, we attempt to find and contact the correct organization or individual. The rights holder might be a small publisher or professional association anywhere in the world, or the rights may have been retained by the author rather than the publishing entity.

In some cases, CCC may show that permission is denied or that special permission is required for copying an item. If our client wants us to pursue the request quickly, we then attempt to contact the rights holder directly. The author assignments are the most difficult to find, particularly if the article is more than a couple of years old. We use the Internet as well as phone and print resources and do our best to track down the individual or individuals owning the rights.