For Librarians

Copyright Information for Librarians

Filesharing | Interlibrary Loan | Photocopying and Scanning | Preservation Copies | Reserves | CUNY Libraries Copyright Sites


Filesharing

Your lab manager reports that he believes a student who frequently visits the lab may be involved in illegal music downloading or filesharing. She spends many hours on the BitTorrent site. What is the best way to handle this situation?

It’s in the best interest of computer labs to consider distributing copies of Notice to the CUNY Community Regarding Filesharing and Copyright Infringement <pdf> , from the Information Security Office. It contains the following advisory:

Filesharing software continues to be a popular way to copy and distribute music, movies, games, and software through the Internet. If you use this software, you need to be aware that copying and distributing materials without permission of the owner can create both criminal and civil liability for you.

How should I respond if I observe what I believe to be inappropriate or illegal use of computer resources?

Local campus procedures may vary, but in general, lab managers should discuss with their supervisors how to handle suspected misuse of computer resources. CUNY takes illegal filesharing seriously.

Does the library or the university run the risk of being sued?

In most recent cases, institutions are not targeted for litigation, but rather the individuals themselves responsible for the illegal activity. However, an institution aware of illegal downloading or filesharing through its computer resources – that does nothing about it – is at risk. The Digital Millennium Copyright Act (DMCA) provides some "safe harbor," protection for CUNY if certain procedures are followed .

What is our best defense in preventing this kind of behavior?

It’s advantageous to have clear, well-written policies and guidance such as the filesharing notice mentioned above and CUNY's Policy on Acceptable Use of Computer Resources that are distributed and shared with the college community. As an educational institution, we have a responsibility to proactively inform students about proper copyright compliance. Faculty syllabi should contain a brief discussion about the penalties of plagiarism, and library instruction classes should incorporate the ethics of information use.


Interlibrary Loan

When can a library make copies of an article or a small excerpt of a larger work for Interlibrary Loan?

Under 17 USCA 108(d), a library may copy an article or a small part of a copyrighted work for Interlibrary Loan if:
  • The copy becomes the property of the user.
  • The library is not aware that the copy is for any purpose other than private study, scholarship or research.
  • The library displays a warning of copyright on its order form, and posts the warning at the place where orders are accepted.

What is the wording of the copyright warning notice? (Cut and paste the text below for your use!)

The copyright law of the United States (Title 17, United States Code) governs the making of photocopies or other reproductions of copyrighted material. Under certain conditions specified in the law, libraries and archives are authorized to furnish a photocopy or other reproduction. One of these specified conditions is that the photocopy or reproduction is not to be “used for any purpose other than private study, scholarship, or research.” If a user makes a request for, or later uses, a photocopy or reproduction for purposes in excess of “fair use,” that user may be liable for copyright infringement. This institution reserves the right to refuse to accept a copying order if, in its judgment, fulfillment of the order would involve violation of copyright law.

 

When can a library make copies of an entire work for Interlibrary Loan?

According to section 108(e), “the rights of reproduction … apply to the entire work, or to a substantial part of it … if the library or archives has first determined, on the basis of a reasonable investigation, that a copy or phonorecord of the copyrighted work cannot be obtained at a fair price if:

  1. The copy … becomes the property of the user and the library or archives has had no notice that the copy or phonorecord would be used for any purpose other than for private study, scholarship or research; and
  2. The library displays prominently, at the place where orders are accepted, and includes on its order form, a warning of copyright.

 

Can the library make or request copies of articles, book chapters for reserve or electronic reserve?

Section 108 does not allow for this, as any copy placed on reserve would not become the property of a single user. Such requests may fall under Fair Use provisions and must be judged on a case-by-case basis.

 

Please note: CUNY is a single legal entity and all of its campuses (including their libraries) are part of the CUNY entity.  Consequently, CUNY takes the position that the ILL guidelines do not apply to CLICS (CUNY Libraries Inter-Campus Services).  While CLICS is similar to ILL, it does not involve the sharing a materials between separate institutions.  Rather, it is a cross-campus delivery system by one institution—CUNY—of items in the entire CUNY library collection. Therefore, it is permissible for a CUNY college to reproduce portions of books or journals held by another CUNY college and place them on eReserve. (Fair use guidelines should still be considered as well as database vendor licenses which may be college-specific).  It is not good practice, however, for a faculty member at one college to borrow a book from another CUNY college via CLICS and place it on reserve, thereby taking it out of circulation at its home campus.

How many articles may a library request from a journal before having to pay royalties or seek permission?

The CONTU (National Commission on New Technological Uses of Copyright Works) Guidelines on Photocopying and Interlibrary Loan Arrangements have been used as suggestions for the quantitative limits for ILL. Within a calendar year, a borrowing library should not borrow more than five articles from the same periodical title published within five years of the date of the request, and no two articles should be from the same issue.

How long should a library keep records of ILL transactions?

Borrowing libraries should keep records or all requests made and filled for the current year and the past 3 calendar years.

If requested article is available as part of a licensed electronic database, may we transmit it electronically to the borrowing institution?

Electronic transmission of ILL articles is not always permitted – though one could forward article via fax. Permission must be negotiated with individual database vendors. Below is NYLINK's recommended language used for licensing databases.

Interlibrary Loan. Subscriber may fulfill requests from other institutions, a practice commonly called Interlibrary Loan. Licensee agrees to fulfill such requests in compliance with section 108 of the United States Copyright Law (17 USC 108) and clause 3 of the Guidelines for the proviso of subsection 108(g)(2) prepared by the National Commission on New Technological Uses of Copyrighted Works.

 


Photocopying and Scanning

A student is observed at a photocopying machine, apparently duplicating his/her entire nursing textbook. How might a library respond to this?

First, is the following notice posted on all your photocopying machines?

The copyright law of the United States (Title 17, United States Code) governs the making of photocopies or other reproductions of copyrighted material. Under certain conditions specified in the law, libraries and archives are authorized to furnish a photocopy or other reproduction. One of these specified conditions is that the photocopy or reproduction is not to be “used for any purpose other than private study, scholarship, or research.” If a user makes a request for, or later uses, a photocopy or reproduction for purposes in excess of “Fair Use,” that user may be liable for copyright infringement. This institution reserves the right to refuse to accept a copying order if, in its judgment, fulfillment of the order would involve violation of copyright law.

 

Not only is posting this notice mandatory, but it protects libraries from photocopying in excess of Fair Use .

Does photocopying an entire textbook violate the principles of Fair Use?

Yes. The student is copying the entire work – not a portion or excerpt. One chapter is generally considered Fair Use . While textbooks are undeniably expensive, this unauthorized duplication undermines and hurts potential profits of textbook publishers.

What should we say to the student, if anything?

Quietly take the student aside and inform him/her of the copyright law. Try to work with the student to find a creative, legitimate solution to the dilemma. Try to make this a teachable moment. Is this a popular, heavily used textbook? Have existing copies been pilfered or damaged? Maybe you should budget for multiple copies. Is electronic access a possibility?

Do these same principles apply to related equipment like printers and scanners?

Yes.


Preservation Copies

The copyright law allows libraries to make up to three copies of a work for preservation purposes.

Copies can be made for works that are damaged, deteriorating, lost, or stolen, or if the existing format in which the work is stored has become obsolete, [17 USCA 108(c)] so long as the library has determined that a replacement cannot be obtained at a fair price. A format is considered obsolete if it is no longer manufactured or is not readily available in the commercial marketplace. Such works can be in any format.

Copies can be digital, provided they are not distributed or made available to the public digitally outside of the physical library.

Placement of digital material on an internal intranet is allowed, but loading copies on the library's website where remote users could access it is not permissible. Libraries availing themselves of this exemption must: 1. be open to the public or allow them access from research purposes, 2. not derive any commercial gain, 3. own a legal copy of the original item, and 4. place a notice of copyright on the item.

Section 108 does not allow library staff to make personal copies, but such copies may come under the Fair Use provisions of section 107. There are no prohibitions if material is in the public domain or no one owns the copyright.

House Report 94-1476 notes that the preservation of motion pictures produced before 1942 by making duplicate copies for preservation certainly falls within the scope of Fair Use .

Reproduction of copyrighted videotapes may occur only to replace a work that is lost, stolen or damaged and that cannot otherwise be replaced at a fair price.

One is allowed, under 17 USCA 117, to make a copy of a computer program provided that copy is for archival purposes only or that the copy is necessary in order to run it on current equipment and is used in no other way.

Licenses take precedence over Fair Use and digital locks. Section 108 cannot be used to supersede any contractual obligation.

When preserving web pages/sites, libraries may prepare mirror versions of their websites for backup or preservation purposes, which can be backed up on a server or saved to an external CD.


Reserves

A professor requested that six chapters from an out-of-print book be uploaded to e-reserves for her course. Does this require permission since the book is no longer being sold and the copies will be password-protected?

First establish whether the work is copyright protected and to what extent. The work may be in the public domain or have limited rights reserved. Works that are registered with the U.S. Copyright Office generally have all rights reserved, but it may be worth looking into whether only specific rights are reserved for more recent works. More>>

If the work is protected, the use must be evaluated using the four factors of Fair Use . In this case, “substantiality” and “effect on the market” are the two factors that tip the use to potentially being unfair. “Effect on the market” is often the factor of most concern.  Request permission for use if, in your best judgment when applying the "four factors," you believe using the work does not fall under Fair Use.

However, it is important to note that it does not only refer to the consumer market for original works. It may also refer to the market for licensing of works that are no longer being sold. In this case, the effect on licensing opportunities combined with the amount being used suggests that  permission should likely be sought.

Password protection is in compliance with Fair Use and also useful for material that is covered by a copying license stipulating a definitive number of users.


 

CUNY Libraries (C)opyright Sites

Each of the Libraries of CUNY are responsible for knowing about and adhering to copyright legal standards. Beyond this collaborative educational copyright site, each CUNY Library also may try to offer further support information to both library staff and library users. Use the links listed here below to access the copyright web pages of individual CUNY Libraries.