ILL - Special Issue Journals and CCL
- March 7, 2006 @ 9:15amelizdav72 says:Lately, I have seen interlibrary loan requests from one faculty member who wants three articles from the same issue of the same journal -- especially since the journal issue has a special theme and all the articles relate to the same topic.
If the articles were covered under CCG guidelines, I wouldn't worry so much since I would pay the copyright fees through CCC as necessary.
But now I'm worried about the CCL articles (older than five years) -- if they conform under copyright law (e.g. under 108d--"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") - then I'm not allowed to request the other two articles for the patron. Is my assumption correct?
If I request more than one CCL article from the same journal issue (for the same patron), should I make the claim in my CCC report (just as I would for the CCG requests)?
If I'm totally off-base in my assumptions - let me know. I keep thinking I understand everything about ILL and copyright, and then I read something, and get worried that I've been completely wrong!
TIA! - March 8, 2006 @ 9:05amwilliamsonl says:I would apply 108(d) regarding copying a 'substantial portion' if the issue is not available at a fair price. If it is, then you would need to purchase or pay the fee. If not, then I believe this would conform to copyright law without any fees.
ILL is not my specialty, so any other opinions feel free to chime in! - March 8, 2006 @ 10:42amRDavis says:I'm also no expert on ILL, but I'll take a stab at this.
Yes, sec. 108(d) of copyright law says that this exemption applies to a copy "of no more than one article or other contribution to a copyrighted collection or periodical issue." So if you're filling a patron's request for three articles from the same journal issue, then 108(d) won't cover all three articles. Perhaps you could claim it for the first article, but you would need to request permission and/or pay fees to copy the other two articles.
Lwilliamson's suggestion of relying on the option provided in sec. 108(e) [she wrote (d), but I think she meant (e)] for reproducing a "substantial part" of the issue seems reasonable to me. But, as she points out, if a copy of the copyrighted work can be obtained "at a fair price" then 108(e) won't apply either. If the copyright owner provides licensing for the articles at a fair price through CCC, for instance, you should probably pay.
You also have the option of skipping sec. 108 entirely and relying on fair use (sec. 107). If the purpose of the use is non-profit and scholarly/educational, and if the articles are factual in nature and were previously published, then the first two factors are in your favor. If the three articles together don't constitute a significant portion of the the journal issue (e.g., if they are relatively short articles), and if they don't constitute the "heart" of that particular issue (e.g., they aren't "lead" articles to which the other contributions in the issue respond/refer to), then the third factor may also weight in your favor. But if any of the above doesn't apply, and fair use isn't already therefore a foregone conclusion, then you'll have to give more weight to the fourth factor. If licensing/permission is readily available for these articles through CCC, once again you're probably best advised to get permission.
Now, as to your question about whether you need to make the claim in your CCC report for more than one CCL article from the same journal issue... (BTW, if you could clarify what the acronyms CCG and CCL stand for, I think it would be helpful for those of us who don't deal with ILL on a regular basis to contribute to this discussion in a more informed way; I made some assumptions on what they stood for in order to provide the following response, and it's possible my assumpitons are incorrect.)
The CONTU Guidelines on ILL state that libraries should maintain records of all requests for copies of materials to which the guidelines apply "until the end of the third calendar year after the end of the calendar year in which the respective request shall have been made." But the critical phrase is "for copies of materials to which the guidelines apply." The CONTU Guidelines do NOT apply to materials published more than five years prior to the date of the request. So if these are what you are referring to as CCL articles, then no, I don't think you have to keep a record (your CCC report?) for such requests.
The CONTU Guidelines were developed to help define what "aggregate quantities" would constitute the kind of "systematic reproduction" that is not allowed under sec. 108(g)(2), because such systematic reproduction could substitute for a subscription to the journal. For materials that are more than five years old at the time the request is made, the CONTU Guidelines merely say that how 108(g)(2) should be interpreted and applied "is left to future interpretation."
So you're kind of left on your own, at least as far as sec. 108 goes.
I hope this helps. I'll check back to see if my assumptions about what CCL and CCG mean are incorrect, and if I should revise my response accordingly. - March 9, 2006 @ 8:36amRDavis says:I'd like to slightly amend what I said above in reference to sec. 108(e) and hopefully elicit comment from anyone out there who is more familiar with copyright as it relates to ILL.
Subsection (e) says a library may copy an entire work or a substantial part of it if a copy of the work can be obtained at a fair price. I'm not so sure that the existence of a permissions or licensing mechanism, such as CCC, is the same thing as a copy of the work. If a single back issue of the journal in question could be purchased at a reasonable price, then it's pretty clear that you can't request a photocopy of the entire issue or a substantial part of it. But if single back issues aren't available, and if the copyright owner doesn't sell copies of the individual articles themselves at a reasonable price, then it seems as though 108(e) would apply, and you could therefore copy the articles.
I don't know if you were able to subscribe to an electronic version of the journal that included the articles in its database, whether that would mean the works were available at a reasonable price, but it seems doubtful to me. How could anyone claim that the price of a digital journal subscription is reasonable if all you really want is three articles?
Merely offering permissions through CCC seems different to me than selling actual copies of the articles themselves or a back issue of the journal they were published in. So it seems to me, after thinking about this further, that 108(e) could allow copying of all three articles, if the copyright owner does not sell its back issues or copies of single articles.
Any ILL people out there have a different take on this?
[quote]
Lwilliamson's suggestion of relying on the option provided in sec. 108(e) [she wrote (d), but I think she meant (e)] for reproducing a "substantial part" of the issue seems reasonable to me. But, as she points out, if a copy of the copyrighted work can be obtained "at a fair price" then 108(e) won't apply either. If the copyright owner provides licensing for the articles at a fair price through CCC, for instance, you should probably pay.
[/quote] - March 9, 2006 @ 1:57pmelizdav72 says:Dear RDavis and LWilliamson -- thank you for chiming in on this topic.
To clarify CCL and CCG -- basically, if an article is less than five years old, I have to track it to make sure I do not go over the "limit of 5" (5 articles from the same journal within the last five years). If I do go over that limit, then I pay CCC the copyright fee. I do keep three years worth of CCG ILL requests as stated in the CCG (CONTU guidelines).
CCL ILL article requests are a little bit trickier. I don't have to track these requests, since they are older than the five year limit. However, as noted, just because they don't conform to the CONTU guidelines, does not mean they are not subject to the Copyright Law (the "L" designation meaning "Law")
From both of your commentaries, I can conclude that regardless of what I end up doing (trying to purchase back copies, etc.) that I will need to research these Special Issue requests more thoroughly. Luckily, I don't get them very often!
In some ways, it's always a relief to get a "CCL" copyright request through ILL, because it means less tracking etc. But that's not always the case.
Thank you both for sending me your commentary -- it's been very helpful! - March 15, 2006 @ 8:26amRDavis says:Hello again--
I'm glad mine and LWilliamson's remarks were helpful--and thanks for clarifying "CCG" and "CCL" for me.
Remember that the law and the CONTU Guidelines together state that the "rule of 5" applies to requests made within a *calendar* year. So, for instance, if I receive three requests in Dec. 2005 for articles from issues of the Journal of Interlibrary Loan that were published in 2003, and then I receive three more requests in Jan. 2006 for articles from issues of the same journal that were also published in 2003, then these six requests do not exceed the "rule of 5."
As you said, you don't have to track CCL requests (i.e., those older than 5 yrs.), but you still have to weigh whether the requests are "in such aggregate quantities as to substitute for a subscription to or purchase of" the journal. I suppose if you find yourself routinely filling CCL requests for articles from a journal then you should probably either request permission and pay licensing fees or look into whether the journal's back issues are available digitally. But again, for CCL requests this is pretty much left to your discretion, so a "reasonable" approach to what might constitute a violation of sec. 108(g)(2) should suffice.
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