The legal problems of document supply by libraries: an international perspective

The Authors

Harald Mueller, Max Planck Institute for Public International Law, Heidelberg, Germany

Acknowledgements

© Harald Mueller. This paper is a revised and updated version of a paper presented at the 10th Interlending and Document Supply Conference held in Singapore in 2007. It is published here with the kind permission of IFLA and the author.

Abstract

Purpose – This paper seeks to describe the current copyright environment from an international perspective, particularly as it relates to the supply of document surrogates.

Design/methodology/approach – The paper describes the current situation in Canada, Australia, the UK and in particular the current saga of Subito and publishers in Germany. It addresses licences and copyright law generally and the impact of open access. Two specific court cases in Canada and Germany are described and their implications considered.

Findings – International copyright is complex and publishers are establishing new restrictions on “fair use” provision through the imposition of licences. National and international laws lag behind in clearly addressing “fair use” in the electronic environment.

Originality/value – The paper is one of the very few that addresses the issue of national and international copyright specifically in relation to document supply.

Article Type:

General review

Keyword(s):

Licensing; Copyright law; Canada; Germany.

Journal:

Interlending & Document Supply

Volume:

36

Number:

2

Year:

2008

pp:

68-73

ISSN:

0264-1615

Introduction

Working in one of the largest libraries for Public International Law in Europe I see many books on human rights. A specific part of human rights is the Human Right for Information that is laid down in:

All these human rights instruments guarantee freedom of information. Well, that's the theory, or, as you might say, wishful thinking.

But, what does the reality look like? When preparing this text I had to check some references first. Of course the most substantial source of information is the regular review of the recent literature by Mike McGrath in Interlending & Document Supply (McGrath, 2007). But when I did an internet search for his latest instalment, I was confronted with a surprise: the publisher expects me to pay £14.50 (around 22.00) for these 12 pages. And a nine-year-old article in the same journal by Graham Cornish would cost US$25.00, when accessed through another (commercial) document supply service (Cornish, 1998).

Which author can afford such a lot of money? Or should his library pay for him? The preparation of this paper could by my rough calculation cost at least 800.00. Imagine this amount of money for just one presentation! I can't think of any student, researcher or librarian paying that amount.

Does this situation mean that freedom of information applies only to the rich? Or does an author have an alternative for obtaining the references needed? We should refresh our memories of what we learned in library school about the function of libraries in society.

What are libraries for?

As everybody knows, the aim of a library is:

And in this context the most important aspect is to give access to the holdings to everybody.

So libraries are not cemeteries for dust-covered media, but the most reliable and vibrant sources of information.

The fundamental concept, or the essence of the library system as a whole, is resource sharing. When the very first user passed through the door of a library, resource sharing started; because no private person, no king, no Bill Gates could ever afford to acquire and store for their own use all the books and other media in the world. They all go to libraries and use the resources. But it is also the case that no single library could ever afford to acquire and store all the books and other media in the world. Thus resource sharing between libraries is the next logical step. The IFLA position on Copyright in the Digital Environment states:

Information resource sharingResource sharing plays a crucial role in education, democracy, economic growth, health and welfare and personal development. It facilitates access to a wide range of information, which would not otherwise be available to the user, library or country requesting it. Resource sharing is not a mechanism to reduce costs but to expand availability to those who, for economic, technical or social reasons cannot have access to the information directly[4].

Resource sharing has two aspects: lending and copying. IFLA gives this definition:

The supply of loans and copies between libraries in different countries is a valuable and necessary part of the Interlibrary Loan ILL process[5].

What is document supply?

Mike McGrath, formerly with the British Library, offers this definition:

Document supply is the process of obtaining material not readily accessible locally (McGrath, 2006).

So document supply (or delivery) is part of interlibrary loan (ILL).

In times of analogue copies, document supply was a satisfactory service for everyone. The client would receive a photocopy of an article, which he could keep. He might have to pay a small sum of money as a copyright remuneration. Everybody would be happy, even the media industry, because analogue document supply is a minus business. It costs a library more than it gains – and the most important argument: a photocopy differs from the original work, among other reasons because of an evident loss of quality.

But, “Things Have Changed”[6] in the last few years. The reproduction of a digital object will produce a copy without any loss of quality. A better word for this phenomenon would be “cloning”. It's technically simple, and the costs are minimal. This is without any doubt one of the main reasons why publishers started commercial document supply services for single articles published in journals. They label libraries as competitors, and document supply became a topic for several court cases in some countries.

What are the arguments?

Publishers say: “Electronic document supply is our genuine business; libraries are competitors in a market”. Libraries argue: “All kinds of document supply are genuine resource sharing, served by libraries for centuries”. This conflict is not only a factual one, but also a legal one. So let us look at the different legal approaches to see if we can find a solution.

Legal conflict solutions

The main part of this paper tries to draw a picture of the legal situation of document supply in some countries. By using the comparative law method it maybe possible to uncover a trend or at least some common features (Ulmer, 2007).

In general, every society solves legal conflicts by:

As in most countries document supply is covered by copyright law, the Open Access concept should also be taken into consideration.

Court case 1: Canada

As far as we know, until today only two countries have seen document supply by libraries brought before the courts. The first case to discuss was decided by the Canadian Supreme Court in 2004 (CCH, 2004a)[7]. It is called “CCH Canadian Ltd. v. Law Society of Upper Canada”, and the facts are that legal materials are reproduced by Great Library staff and delivered in person, by mail or by facsimile transmission to requesters. The court decided:

The Law Society does not infringe copyright when a single copy of a reported decision, case summary, statute, regulation or limited selection of text from a treatise is made by the Great Library in accordance with its access policy …

Under s. 29 of the Copyright Act, fair dealing for the purpose of research or private study does not infringe copyright. “Research” must be given a large and liberal interpretation in order to ensure that users' rights are not unduly constrained, and is not limited to non-commercial or private contexts. Lawyers carrying on the business of law for profit are conducting research within the meaning of s. 29.

As will be described later, Canadian copyright law explicitly regulates document supply between libraries. So this case surprises at first sight. Why do you need a court case if you have a statutory law? From a European librarian's point of view the most interesting part of the case is the second quotation with its very broad definition of “research”, which includes even a commercial context. By comparison, in Europe any direct or indirect commercial purpose excludes copyright privileges. The decision of the Supreme Court in this case is seen as a great gift by Canadian librarians (Owen, 2007).

Court case 2: Germany

In Germany the Subito case is now before the Supreme Court (Bundesgerichtshof) (Mueller, 2006). Subito is the brand name used by the document supply service of research libraries in Germany, Austria and Switzerland. It provides a quick and easy-to-use service which makes copies of articles from periodicals or books, sends them to the user and also supports the lending of books. In the summer of 2004, the German Publishers Association and several international publishers (the Stichting STM) as plaintiffs took Subito to court. The case was brought before the court of first instance (Landgericht) in Munich and labelled as a “test” case by the parties. The case was decided in December 2005.

The judgment given by the court surprised everybody. The court ruled that mailing of paper copies using document supply from one library to another is illegal, because it violates art. 53 (VI) German Copyright Law. But it is allowed as customary law, because for decades (i.e. since 1965) nobody objected to this “illegal” practice. In the second part of its ruling, the court ruled that the mailing of digital copies is illegal and prohibited, as the copyright law does not offer a valid legal basis. So the case went to the Court of Appeal in Munich (OLG München). In Spring 2007 the Court of Appeal rendered a decision. The court partially modified the decision of the first instance, and dismissed the appeals of both parties (Mueller, 2007).

The general press covering of the decision of the Court of Appeal reported a defeat for the Subito service. This is only partly correct. A careful reading of the judgment and its reasons reveals several remarkable statements by the court. The publishers intended to achieve a comprehensive prohibition of any kind of document supply by libraries. The court of appeal rejected this outright prohibition, even more so than in the court of first instance. The court of appeal regarded only the delivery of copies of six individual, exactly described articles by e-mail, FTP or internet download as a violation of German copyright law. As such, the court dismissed the following requests by the plaintiffs:

So German libraries do not welcome this case as a great gift, as the Canadian colleagues see their case, but they say: “It could have come out much worse!”. In summer 2007 both parties brought the case before the Supreme Court.

Licences

The next solution to be discussed for solving legal problems is licences. The use of licences for electronic products introduced a host of new issues for libraries. And it is not without hidden traps[8]. Contract law usually takes precedence over copyright law, so anything that a library agrees to in a license is usually binding regardless of what the copyright law says (cf. Sec. 108 f 4, US copyright law). The principle of “freedom of contract” often puts libraries at a serious disadvantage. Firstly, the position of the parties is unequal because the publisher has an exclusive, monopoly right over the material. Publishers, who are often international, can afford to employ lawyers to draft their licences, which are often highly technical and written in English. The licence is usually governed by the law of the country most favourable to the publisher, rather than the law of the country in which the library is situated. For printed material, the library and its users have potentially unlimited access. There are no restrictions placed by the copyright owner on the length of time the library may keep a book on the shelf or where the user reads the book after it is borrowed. If a library cancels its subscription to a journal, it may keep the previous issues for future use. In contrast, the licence usually provides access to the electronic material for a specific period of time and under the conditions as specified in the licence. This means that the library must negotiate each and every use that they wish to make of the material.

National copyright laws

A law is an enforceable set of public rules that govern society. When laws are being made, they are usually debated by the legislature and there may be opportunities for stakeholders to put forward their views. Copyright law should reflect a balance between the rights of copyright owners and those of users of copyright material, such as individuals and libraries. As such, national copyright laws may contain special provisions to allow libraries to undertake preservation activities or to make fair use of material in their collections.

So let's have a look at five national copyright laws:

  1. Canada – 2007;
  2. Australia – 2000;
  3. USA – 2004;
  4. UK – 1988; and
  5. Germany – 2008.

Other national copyright laws like France[9] (2006 implementation of EC directive 2001/29/EC), Denmark[10], and Norway[11] have been omitted from discussion because of lack of space (and/or proper English translations).

Canada: Copyright Act (R.S., 1985, c. C-42) Act current to June 2nd, 2007

Section 30.2 (2) It is not an infringement of copyright for a library, archive or museum or a person acting under the authority of a library, archive or museum to make, by reprographic reproduction, for any person requesting to use the copy for research or private study, a copy of a work that is, or that is contained in, an article published in(a) a scholarly, scientific or technical periodical; or(b) a newspaper or periodical, other than a scholarly, scientific or technical periodical, if the newspaper or periodical was published more than one year before the copy is made.…Section 30.2 (5) A library, archive or museum or a person acting under the authority of a library, archive or museum may do, on behalf of a person who is a patron of another library, archive or museum, anything under subsection (1) or (2) in relation to printed matter that it is authorized by this section to do on behalf of a person who is one of its patrons, but the copy given to the patron must not be in digital form.

Section 30.2 (5) allows the document supply of printed materials from one library to another, but electronic document supply is not permitted. At the moment Canadian libraries are trying to achieve electronic document supply at their universities They hope to obtain a legal opinion to support their proposed move to electronic document supply, with good, clean procedures, taking full advantage of the Supreme Court of Canada's CCH case (CCH, 2004b)[12].

Australia: Copyright Act 1968 – Sect 49

Reproducing and communicating works by libraries and archives for users(1) A person may furnish to the officer in charge of a library or archives:(a) a request in writing to be supplied with a reproduction of an article, or a part of an article, contained in a periodical publication or of the whole or a part of a published work other than an article contained in a periodical publication, being a periodical publication or a published work held in the collection of a library or archives; and(b) a declaration signed by him or her stating:(i) that he or she requires the reproduction for the purpose of research or study and will not use it for any other purpose; and(ii) that he or she has not previously been supplied with a reproduction of the same article or other work, or the same part of the article or other work, as the case may be, by an authorized officer of the library or archives.…(5A) If an article contained in a periodical publication, or a published work (other than an article contained in a periodical publication) is acquired, in electronic form, as part of a library or archives collection, the officer in charge of the library or archives may make it available online within the premises of the library or archives in such a manner that users cannot, by using any equipment supplied by the library or archives:(a) make an electronic reproduction of the article or work; or(b) communicate the article or work.

In Australia document supply is specified in the “library and archives” section of the Copyright Act. Australian librarians fought very hard to keep the exception in the review of the Act which was required as a consequence of the Australian/USA Free Trade Agreement and also to update the Act for the digital age. Document supply is covered by s49 and s50 of the Copyright Act. These provisions permit supply of both digitised print source material and electronic source material. The current law remains with respect to the supply of print source materials. Electronic source materials are treated slightly differently and s50 (library-to-library supply) has different requirements to s49 (library to user supply).

Both s49 and s50 permit the scanning of print material and the electronic communication of the resulting digital reproduction; as soon as practicable after the communication, the interim digital copy must be destroyed (i.e. the scanned copy held by the supplying library). Libraries should have a procedure in place which ensures that such copies are destroyed as a matter of course. (For s50 only) no portion of electronic source material may be communicated if that material is commercially available (Australian Libraries Copyright Committee, 2000).

USA: 17 USC 108, 2004

108. Limitations on exclusive rights: Reproduction by libraries and archives(a) Except as otherwise provided in this title and notwithstanding the provisions of section 106. it is not an infringement of copyright for a library or archives, or any of its employees acting within the scope of their employment, to reproduce no more than one copy or phonorecord of a work, except as provided in subsections (b) and (c), or to distribute such copy or phonorecord, under the conditions specified by this section, if –…(d) The rights of reproduction and distribution under this section apply to a copy, made from the collection of a library or archives where the user makes his or her request or from that of another library or archives, of no more than one article or other contribution to a copyrighted collection or periodical issue, or to a copy or phonorecord of a small part of any other copyrighted work, if –

The US law explicitly allows document supply but is silent about the method in a long-standing attempt to be technology-neutral. The law itself is defined in 17 USC 108(d)[13]. The practice of digital transmission using Ariel software is well established. Ariel scans the document, sends the TIFF file, and then retrieves and prints the TIFF at the other end. The Ariel TIFF has modifications that make it harder for standard packages to be used. More recently, document supply has changed at some libraries to create a PDF instead of paper. Those who made the request can now request the PDF version and retrieve it using a code number (Seadle, 2004).

More controversial is the sending of digital copies from licensed databases. A number of US universities have made deals with publishers like Elsevier to allow them to print works from their licensed databases, and then to scan the print to send a digital copy to a person making the request from another library. The extra print-scan-send step is clearly an attempt to discourage the process, but major libraries have been able to force it into their contracts.

UK: Copyright, Designs and Patents Act 1988

Copying by librarians: articles in periodicals.38. (1) The librarian of a prescribed library may, if the prescribed conditions are complied with, make and supply a copy of an article in a periodical without infringing any copyright in the text, in any illustrations accompanying the text or in the typographical arrangement.(2) The prescribed conditions shall include the following  (a) that copies are supplied only to persons satisfying the librarian that they require them for purposes of research or private study, and will not use them for any other purpose;(b) that no person is furnished with more than one copy of the same article or with copies of more than one article contained in the same issue of a periodical; and(c) that persons to whom copies are supplied are required to pay for them a sum not less than the cost (including a contribution to the general expenses of the library) attributable to their production.39. (1) Copying by librarians: parts of published works…40.- (1) Restriction on production of multiple copies of the same material…41.- (1) Copying by librarians: supply of copies to other libraries…43.- (1) Copying by librarians or archivists: certain unpublished works.…

In the UK, Sections 38 to 43 of the Copyright, Designs and Patents Act 1988 authorise the document supply of articles, etc. Nothing is said in the law about electronic document supply, so there have been some arguments about the application of this to the digital situation. Essentially, libraries may make copies for an individual, provided that the person signs a declaration that they are going to use the copy for non-commercial research or private study. The material copied may be the whole of an article in a periodical, or an insubstantial part of anything else. In practice, a library receives the request from an individual, checks the signed declaration, and on that basis of that, asks another library for the copy.

Germany: Copyright Law (Urheberrechtsgesetz)

Art. 53a Sending copies on demand (in force January 2008)(1) The reproduction and transmission via mail or fax by public libraries of single articles published in newspapers and journals as well as small parts of published works is permissible for single orders as long as the use by the client is allowed by art. 53. The reproduction and transmission in other electronic form is permissible exclusively as a graphic file and for illustration of instruction or for scientific research purposes, as far as this is justified for non-commercial purposes. The reproduction and transmission in other electronic form is permissible further only, if access to the articles or small parts of a work is obviously not possible for members of the public on a contractual base under reasonable conditions from places and at times of their choice.(2) The copyright owner shall receive a fair remuneration for the reproduction and transmission. This right can be claimed only through a collecting society.

Germany amended the Copyright Law in summer 2007 to implement EC directive 2001/29/EC. A new article, 53a, explicitly permits document supply. Paper and fax copies are allowed, but the regulation for electronic copies is very hard to understand. It is a tricky solution: electronic document supply by libraries in PDF format is generally permitted for instruction and for research, but prohibited if there is a commercial document supply service, easily accessible, and under reasonable conditions. The German Library Association understands the last condition as a pressure on publishers to offer cheap document supply for students and researchers. If the prices of a commercial document supply service exceed the fair remuneration rate as laid down by the collecting society, libraries are free to supply PDF copies. As the law amendment came into force on 1 January 2008, there is no practical experience available at the moment.

Of course the amended Copyright Law overhauls the Subito case. Most of the court findings are obsolete now. But the publishers especially still have an interest in a decision by the Federal Supreme Court. They hope that the court will bring the case before the European Court of Justice to decide if document supply violates European law.

Open Access

The very last possibility for a document supply service by libraries to avoid legal problems is to be found in the Open Access principle (Willinsky, 2006).

The 2003 Berlin Declaration on Open Access, made by European research organisations, offers this definition of open access:

The author(s) and right holder(s) grant(s) to all users a free, irrevocable, worldwide, right of access to, and a license to copy, use, distribute, transmit and display the work publicly […] as well as the right to make small numbers of printed copies for their personal use[14].

Of course publishers understand Open Access as a threat or declaration of war against their economic interests. But what about libraries?

Committed to ensuring the widest possible access to information for everyone, librarians have by and large been amongst the most vocal advocates for Open Access. As one of the stakeholders most aware of the impact of the “serials crisis”, they are anxious to seek ways of removing the permission and price barriers that limit access. Librarians are sometimes the focal point for Open Access within higher education institutions, and the library may be the home of the institutional repository. Many library associations around the world have issued statements supporting Open Access or have signed major Open Access declarations[7].

Conclusion

There is an ongoing and intensive struggle for property ownership in relation to information and information resources. The global comparative law review shows some trends from a law librarian's point of view. The first and most important trend is that more and more countries prefer to regulate document supply by libraries through statutory regulation as part of that country's copyright law. But legislators also give space for licence contracts. And licences are mostly for electronic document supply, as this is a new medium, and legislators are unsure about its implications. Regarding licences, the Canadian librarian Victoria Owen (member of IFLA's Committee on copyright and other legal matters CLM) makes the following point: “Institutional licensing should be approached with caution” (Owen, 2007). So the second trend is that licences should be avoided wherever possible.

What can libraries do with all these findings? The key word is information:

Because that's also “freedom of information”.

References

Australian Libraries Copyright Committee (2000), Copyright Bulletin, available at: www.digital.org.au/alcc/oct2000.html (accessed 15 July 2007), Vol. October.

[Manual request] [Infotrieve]

Cornish, G. (1998), "Copyright and document delivery in the electronic environment", Interlending & Document Supply, Vol. 26 No.3, pp.123-9.

[Manual request] [Infotrieve]

McGrath, M. (2006), Proceedings of the 7th Nordic NVBF-ILL Conference, Elsinore, available at: http://conference.dbc.dk/viewpaper.php?id=19&cf=2 (accessed 15 July 2007), .

[Manual request] [Infotrieve]

McGrath, M. (2007), "Interlending and document supply: a review of the recent literature – 61", Interlending & Document Supply, Vol. 35 No.2, pp.102-14.

[Manual request] [Infotrieve]

Mueller, H. (2006), "The Subito case in Germany: implications for libraries (about decision of first instance)", available at: www.ifla.org/IV/ifla72/papers/089-Mueller-en.pdf (accessed 15 July 2007), .

[Manual request] [Infotrieve]

Mueller, H. (2007), "Subito case in Germany – decision of the court of Appeal in Munich", EBLIDA News, available at: www.eblida.org/uploads/eblida/1/1181809711.pdf (accessed 15 July 2007), No.9/10, .

[Manual request] [Infotrieve]

Owen, V. (2007), "Debunking myths about collecting societies – the librarian's perspective", Proceedings of the World Library and Information Congress: 73RD IFLA General Conference and Council, Durban, available at: www.ifla.org/IV/ifla73/papers/153-Owen-en.pdf (accessed 23 October 2007), .

[Manual request] [Infotrieve]

Seadle, M. (2004), "Copyright in the networked world: interlibrary services", Library Hi Tech, Vol. 22 pp.328-32.

[Manual request] [Infotrieve]

Ulmer, E. (Ed.) (2007), International Encyclopedia of Comparative Law, Mohr, Tübingen, Vol. XIV, Copyright, .

[Manual request] [Infotrieve]

Willinsky, J. (2006), The Access Principle: The Case for Open Access to Research and Scholarship, MIT Press, Cambridge, MA, .

[Manual request] [Infotrieve]

Corresponding author

Harald Mueller can be contacted at: hmueller@mpil.de