A faculty member at the college wants to compile a number of journal articles on a particular topic and put them on a CD to distribute to other faculty members. Is this permissible?

Not unless the faculty member either has permission from copyright owners or the articles are from journals to which the institution holds a license that permits reproduction and distribution in electronic form to others in the school.

A for profit service sells and distributes, via the web, a course pack of journal articles for college courses. Most of the articles the service distributes are contained within databases to which the service has subscribed, so copyright should be covered in their contract agreement with publishers. Occasionally an article is not available in one of these databases, and the for-profit service has requested that the library provide it with a copy. The service then obtains copyright clearance from the CCC(Copyright Clearance Center) before making the work available online in the course pack. Is there any problem with a library providing the service with a copy? Should the library require an official request? What does the for-profit service need to do to be compliant with the copyright law?

There is no problem in providing the service with a copy. The for-profit service is handling the copyright permissions and royalties. Under section 108(d) of the Copyright Act, a library may provide a copy to a user upon request. If royalties are due because of the use the patron will make of the material, either the supplying library or the requesting entity must pay them. In this instance, the for-profit service is paying the royalties. It is unclear what is meant by an "official request." Does this mean an interlibrary loan request?

The only responsibilities of the library that supplies the copy upon request are to provide the section 108(d) warning to the patron and to make sure the copy contains the real notice of copyright. It is the for-profit service that must ensure its own compliance. In general, the university library should not be concerned about the for-profit service's compliance but instead should worry about its own.

In a government agency, staff members prepare an alert service that consists of items taken from news stories and articles on the web (from Reuters, Associated Press, and various newspapers), news stories posted on other listservs, e-mails from colleagues, and so forth. Because this is disseminated as an internal list, is it permissible to reproduce the news stories in these e-mails? What about disseminating the updates to a much wider audience outside the organization? What are the copyright concerns with circulating these internal e-mails containing the full text of articles? If only citations are distributed, what happens when employees then request copies of the articles?

If any of these sources are licensed products, the license agreement controls the redistribution of this content by an employee. If the organization has a Copyright Clearance Center Annual Copyright License, then redistribution within the organization is permitted. If the organization is not a CCC licensee, and redistribution of full text is done more than very occasionally, permission is required, and often there is a fee, even for a nonprofit organization. As an alternative, the employee could prepare a brief description of the contents and distribute it along with a link to the item on the web. Or the headline could be distributed, since headlines are not copyrightable in the United States, in contrast with many European countries. Distribution outside the organization other than headlines and links is even more likely to be infringement since licenses usually cover only employees.

Under section 108 of the Copyright Act, libraries are permitted to make single copies for users under certain conditions. No multiple copying is permitted, however. Section 108(d) allows a library to make a copy of an article from a journal issue for a user. One of the conditions that the library must meet in order to qualify for this exception is that the copy must become the property of the user. Another condition, found in section 108(g)(1) is that the copying may not be systematic, and it is certainly arguable that distributing the list of citations, accepting requests for the articles, and making multiple copies in anticipation of demand is systematic copying since it is neither isolated nor spontaneous. But it is equally likely that a court would consider this to be simply functioning under section 108(d); further, many libraries traditionally provide such service.

When a for-profit company files for approval from the Federal Drug Administration, for either a new drug or a medical device, the company must provide copies of all articles and other literature, along with the filing. Now, in Europe, there is a medical device directive, MEDDEV.2.7.1 Rev.3Guidelines on Medical Devices, that requires all manufacturers that want to sell product in European Union countries to provide a clinical evaluation of their product. Part of the evaluation is a literature search, along with copies of the articles and other materials that support their evaluation. Must copyright royalties be paid for these copies provided in response to a government directive?

If the company has a Copyright Clearance Center Annual Copyright License (often called a blanket license), the library can provide copies of these articles to accompany federal and international filings without concern, including digital copies. If the company does not have a CCC license, then it should look at its various license agreements for full-text journals to see if this activity is covered by the license agreement. Otherwise, royalties should be paid.

Paul Goldstein, in his multi-volume treatise, Goldstein on Copyright, has long posited that supplying copies as required by a government agency as part of an application process or other regulation is a fair use. In January 2012 the U.S. Patent and Trademark Office (PTO) issued a written report concerning the use of copyrighted articles and books in the process of patent application examinations. Although the PTO has many license agreements that cover the use of journals, occasional copies of non-licensed journal articles are necessary. The report states that the fair use doctrine provides protection for the use of copyrighted non-patent literature in the prosecution of a patent (application through the PTO). For a fee the PTO provides certified copies of the files, including these articles, to the public, and it believes that this is fair use.

A faculty member has received 36 microfilm reels containing the Papers of Charles Sumner, 1811-1874, through interlibrary loan to use for research for a work he is writing. How much may he copy under fair use?

These papers could now be in the public domain. Works that existed as of January 1, 1978, but which were never published passed into the public domain at the end of 2002, or life of the author plus 70 years, whichever is greater. For these papers, it is the publication date that would determine whether the work is still under copyright. It is possible that the microform is the first publication of these papers. If this microfilm was published between 1978 and 2002, the copyright will extend to 2047 or 70 years after the death of the author, whichever is greater.

One of the departments in a company is preparing for an upcoming tradeshow and has compiled a CD that includes the publications of staff members in that department. The department manager believes that first authors on articles can get permission from journals to share copies of their articles as long as copies are not for sale. Is this true or does the department need to purchase reprints from the publisher to distribute? Do the rules change if one changes the format from print to digital?

If the authors assigned the copyright to the publisher (which is most often the case), then even the authors must have permission from the publisher in order to reproduce copies of the articles, regardless of whether the reproduction is in print or digital format on a CD. A change of format does not alter the copyright issues with regard to permissions. So, if the publisher owns the copyright, it determines whether the articles may be reproduced and distributed or whether reprints must be purchased in order to distribute them. It is the original copyright transfer from the author(s) to the publisher that controls. If the authors of an article did not transfer the copyright, then any of the authors can give permission for the reproduction.

 
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