Where Have You Gone, Fair Use: Document Delivery in the For-Profit Sector - copyright

Information Outlook, Jan, 2000 by James S. Heller

Who needs to pay royalties? Presumably the requesting library. In fact, the guidelines state that a library which requests copies under [ss] 108 should attest that the request complies with the guidelines or with another provision of the Act such as 107 fair use. The lending library may reasonably rely on the attestation. However, the librarian should be aware that some libraries may abuse the privilege by asking repeatedly for copies of articles from the same journal title. The library should not fill such requests unless the borrowing library is paying royalties and so indicates. Moreover, libraries should avoid filling requests from for-profit document deliverers unless there is clear proof that the document deliverer is paying royalties.

For-profit document deliverers that make money from making copies must pay royalties. There is no [ss] 108-like exemption for them, and their copying is not a fair use. Reputable document delivery companies do pay royalties, and, if they want to stay in business, they will bill royalty fees back to the requesting library or include it in their fee.

What about electronic copies? Sections 107 and 108 are format neutral, If the library can make a photocopy of an article copy from its collection for a researcher or get a photocopy or fax of the article from another library it should be able to send the user a digital copy. In an interlibrary transaction, one also should be able to receive a digital copy from another library. Recalling that the copy must become the property of the individual requestor, the library may not retain the digital version after delivery to the user.

Because this column began with the CCC, it also end with it. Danvers, Massachusetts-based CCC claims that more than 9,000 companies use their Annual Authorizations and Photocopy Authorizations Services. The blanket license agreement enables a company to make an unlimited number of copies of materials in the CCC's repertory of registered works for internal use. And the CCC says that if the company gets a blanket license, the participating publishers will not sue for infringement. The license does not cover materials publishers have not registered with the CCC nor does it extend to external copies such as those requested via ILL/document delivery.

The CCC collects royalties from users and returns the revenues to publishers, less a nine to twelve percent fee. It is no surprise that the CCC interprets fair use and the library exemption more narrowly than this author. A librarian should counsel corporate counsel about any statements and letters from CCC. Fair use and the library exemption exists both in the ivory-towered academic world and in the real commercial world. Justifiably, the [ss][ss] 107 and 108 exemptions are interpreted more narrowly for for-profit entities. But Congress did not limit these exemptions to the non-profit sector.

Play fair, and pay royalties when they are due. But remember that just because someone threatens to sue if royalties are not paid does not mean they are factually or legally right.