Copyright in a Nonprofit Organization Library

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  • I am a librarian working in a library in a nonprofit research organization (social sciences area of study). I am not the "head" of the library, as the library is under the jurisdiction of a non-librarian administrator, who has many other responsibilities as well. The library keeps photocopies of articles, book chapters, reports, etc. in areas the organization studies. The policy for use is that the employee is to make a photocopy of the article, chapter, etc and immediately return the original to the library. As a result, many of these articles and book chapters have been photocopied and re-photocopied many times. In fact, there are several "files" that contain such resources, and it is not unusual to see the same article or chapter in multiple files--up to 5 or 6 different places around the building. The files also contain chapters photocopied from books we own, and some we don't own. The organization also makes multiple copies such written works for use in meetings and workshops. I'm sure much of this is illegal, but I need details--especially as they pertain to our 501(c)(3) status.

    What has happened over the years is that when articles have been requested via ILL or photocopied from journals we have subscribed to, the photocopies have been made a permanent part of the library's collection, and have been recopied when "someone else" would like to see it.

    This particular organization would not take too kindly to being told they are not complying with copyright and to knock it off. This is far from the only thing the place is doing that is not quite right. I am also worried about personal liability, although I am only doing what I am told to do, and these are policies that have been in place long before I got there.

  • I will leave it to others to comment on the details of your practices, although I will say what you describe seems well outside of accepted practice for interlibrary loan and fair use. It is unusual, I think, for a library to built a collection of photocopied works, especially works for which they do not own a commercial original, and I think that practice would be hard to defend.

    I want to say more, however, about the liability issues. You ask about 501(c)(3) status, which is the IRS exemption for non-profit organizations that receive charitable (i.e. non-taxed) donations. From the point of view of liability under the copyright act, simply being a 501(c)(3) is unlikely to be enough to reduce liability. Several exceptions to the exclusive rights depend on being a non-profit educational institution or library. Most notably, that is the requirement for the waiver of statutory damages found in section 504(c)(2) of the copyright act (I know, the numbering gets confusing). I think it would be a close factual question about whether your organization falls under the shelter of this waiver of liability; the court would look at whether the organization as a whole was primarily educational, whether the copying produced a commercial advantage, and, most importantly, whether the employees had a good faith belief in fair use. Since "good faith" requires both subjective honesty and objective reasonableness, I think this last requirement would be hard to meet in the situation you describe.

    As for personal liability, that is certainly a possibility, although it is probably not a very real risk. Copyright infringement is a tort (civil wrong) in most cases, and the general rule for torts committed by an employee within the scope of their employment is that both the employee and the employer can be held liable. If there is a judgment against such defendants, the plaintiff can collect the judgment (only once, of course) from either party or both in whatever proportion he can. Realistically, most suits name the employer since that is, as Willie Sutton said, where the money is.

    The analysis of individual liability changes if the employee works for a state institution; I have assumed that yours is a private organization.

    Let me add that this post is not intended as legal advice and that, in my opinion, your organization should seek the advice of counsel knowledgeable in copyright issues.
  • I appreciate your reply.

    It should also be noted that I am not an employee. I'm an independent contractor, which I would hope would help me in this particular situation.

    I have not written any of the policies that have led to the rampant photocopying, nor was I the one that saved all these articles for the library. I'm just expected to refile them after use, etc. I have, however, been instructed to do illegal photocopying, and protests were met with a nasty retort. Additionally, other things that I have brought to their attention that have been done incorrectly have led to getting me into trouble. This particular organization doesn't want to things correctly, apparently. However, the job is convenient at the moment, and I do need it. There isn't much else in this economy, or in this area. If they are brought to task over all this, I would like to protect myself.
  • I'm not sure that the status of independent contractor really helps the employee on the issue of personal liability, although I repeat that I think that is a very small risk. It seems clear in any case that the person who actually makes an infringing copy is potentially liable for the infringement. If that person is an independent contractor, it is the employer who might be able to duck liability by claiming that the infringement was not within the scope of the employer's control. That does not seem to be the case in your situation, since it is the employer's own policy that you think is infringing. So it seems that the situation would still be the "joint and several liability" I described above.
  • Hello-

    I realize that this thread is a couple years old, but if someone is still monitoring it I'd love some advice on this issue. I'm working for a small (tiny) new nonprofit that is hoping to establish a resource library for its members. The resource library will almost entirely be composed of indexed electronic copies of research articles, many of which are copyrighted. However, I believe that making them available within the organization would fall well within the bounds of fair use, as copying would be for the purposes of education and furthering work within our field (sustainable development/architecture/city planning/community organizing). Is my assumption accurate? And will we be more protected from possible litigation if the archive of articles is password-protected so that only members of the coalition can access it?

    Thanks for any help you can offer!

  • A spam post brought my attention back to this thread. Sam, I think the situation you describe is a bit iffy at best. Are the "members" just parts of the team working in this office, or are you talking about something more far-flung? Is this archive going to be on an intranet, something that's internal to the organization, or on the internet? One thing you would be entirely safe doing out on the open internet is providing a list of links to items that are freely available online. And a bibliography of items which are not freely available is also entirely safe.

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