Copyright Guidelines

Library Policies

Copies for Use by Others

Generally, it is not an infringement of copyright for a library to make one copy of a work1 and distribute it if:

1. the reproduction or distribution is made without any purpose of direct or indirect commercial advantage;
2. the library collections are open to the public or are available to persons not affiliated with the library who are doing specialized research; and
3. the reproduction or distribution includes the work's copyright notice or, if the original work does not contain a copyright notice, the library includes a legend warning the user that the work may be protected by copyright.
   17 U.S.C. § 108

Copying Articles and Small Excerpts

Generally, it is not an infringement of copyright for a library to copy one article or contribution to a copyrighted collection or periodical or a small part of another copyrighted work if:

1. the copy becomes the property of the user who makes the request and the library has no notice that the copy will be used for any purpose other than private study, scholarship or research; and
2. the library prominently displays on its order form and at the place where orders are accepted an appropriate warning.
   17 U. S. C. § 108(d)

Copyright regulations provide the following warning, which should be listed verbatim:

NOTICE
WARNING CONCERNING COPYRIGHT RESTRICTIONS

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 SPECIFED CONDITIONS IS THAT THE PHOTOCOPY OR REPRODUCTION NOT 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 LAW2.

37 C.F.R. § 201.14.

Copying Out-of-Print Works

The library may reproduce and distribute an entire work or a substantial part of a work from its collection if the library reasonably investigates the availability of the work and determines that a copy of the work cannot be obtained at a fair price and:

1. the copy becomes the property of the user who makes the request and the library has no notice that the copy will be used for any purpose other than private study, scholarship or research; and
2. the library prominently displays on its order form and at the place where orders are accepted the warning listed above.

A "reasonable" investigation should include use of commonly known trade sources and contact with the publisher, copyright owner(s) or their authorized reproducing services. 17 U.S.C. § 108(e).

Multiple Copies

The library can reproduce and distribute the same material on isolated and unrelated occasions so long as the library is not aware, or does not have substantial reason to believe that, it is engaging in the concerted reproduction or distribution of multiple copies of the same material.

Interlibrary Loans

The issue of interlibrary loans is fairly complex and goes beyond the scope of these guidelines. We will note, however, that libraries are free to participate in interlibrary loan programs so long as the arrangements do not have the purpose and effect that the receiving library substitutes the loans for purchasing copies or subscriptions of the work. 17 U.S.C. § 108(g)(2). To help interpret this language, the National Commission on New Technological Uses of Copyrighted Works (CONTU) suggested the interpretation which Congress included in its conference report on the matter. Though the guidelines are not law, they are considered to be a workable and fair interpretation of the intent of § 108(g)(2).

These guidelines are intended to provide guidance in the application of section 108 to the most frequently encountered interlibrary case: a library's obtaining from another library, in lieu of interlibrary loan, copies of articles from relatively recent issues of periodicals - those published within five years prior to the date of the request. The guidelines do not specify what aggregate quantity of copies of an article or articles published in a periodical, the issue date of which is more than five years prior to the date when the request for the copy thereof is made, constitutes a substitute for a subscription to such periodical. The meaning of the proviso to subsection 108(g)(2) in such case is left to future interpretation.

The point has been made that the present practice on interlibrary loans and use of photocopies in lieu of loans, may be supplemented or even largely replaced by a system in which one or more agencies or institutions, public or private, exist for the specific purpose of providing a central source for photocopies. Of course, these guidelines would not apply to such a situation.

GUIDELINES FOR THE PROVISION OF SUBSECTION 108(G)(2)

1. As used in the proviso of subsection 108(g)(2), the words "… such aggregate quantities as to substitute for a subscription to or purchase of such work" shall mean:

(a) with respect to any given periodical (as opposed to any given issue of a periodical), filled requests of a library or archives (a "requesting entity") within any calendar year for a total of six or more copies of an article or articles published in such periodical within five years prior to the date of the request. These guidelines specifically shall not apply, directly or indirectly, to any request of a requesting entity for a copy or copies of an article or articles published in any issue of a periodical, the publication date of which is more than five years prior to the date when the request is made. These guidelines do not define the meaning, with respect to such a request, of "… such aggregate quantities as to substitute for a subscription to [such periodical]".

(b) With respect to any other material described in subsection 108(d), (including fiction and poetry), filled requests of a requesting entity within any calendar year for a total of six or more copies or phonorecords of or from any given work (including a collective work) during the entire period when such material shall be protected by copyright.

2. In the event that a requesting entity -

(a) shall have in force or shall have entered an order for a subscription to a periodical, or

(b) has within its collection, or shall have entered an order for, a copy or phonorecord of any other copyrighted work, material from either category of which it desires to obtain by copy from another library or archives (the "supplying entity"), because the material to be copied is not reasonably available for use by the requesting entity itself, then the fulfillment of such request shall be treated as though the requesting entity made such copy from its own collection. A library or archives may request a copy or phonorecord from a supplying entity only under those circumstances where the requesting entity would have been able, under the other provisions of section 108, to supply such copy from materials in its own collection.

3. No request for a copy or phonorecord of any material to which these guidelines apply may be fulfilled by the supplying entity unless such request is accompanied by a representation by the requesting entity that the request was made in conformity with these guidelines.

4. The requesting entity shall maintain records of all requests made by it for copies or phonorecords of any materials to which these guidelines apply and shall maintain records of the fulfillment of such requests, which records shall be retained until the end of the third complete calendar year after the end of the calendar year in which the respective request shall have been made.

5. As part of the review provided for in subsection 108(i), these guidelines shall be reviewed not later than five years from the effective date of this bill.

Unsupervised Copying by Others

Libraries are generally not liable for the unsupervised use of reproducing equipment located on its premises if the equipment displays a notice that the work being copied may be subject to the copyright law. 17 U.S.C. § 108. The following warning should be used:

NOTICE:

THE COPYRIGHT LAW OF THE UNITED STATES (TITLE 17 U.S. CODE) GOVERNS THE MAKING OF PHOTOCOPIES OR OTHER REPRODUCTIONS OF COPYRIGHTED MATERIAL.

THE PERSON USING THIS EQUIPMENT IS LIABLE FOR ANY INFRINGEMENT.
17 U.S.C. § 108(b)

Copies of Unpublished Works for Preservation
and Security or Research

A library may reproduce and distribute up to three copies of an unpublished work if the purpose is for preservation and security of the work. Three copies can also be made of the work if the copies will be deposited for research in another library if:

1. the library collections are open to the public or are available to persons not affiliated with the library who are doing specialized research;
2. the work is in the collections of the first library; and
3. copies made in digital form are not distributed in digital form or made available to the public in digital form outside the library premises.

Copies of Published Works for Replacement Purposes

A library may reproduce up to three copies of a published work if its purpose is solely to replace a copy that is damaged, deteriorating, lost or stolen or if the format in which the work currently exists has become obsolete, if:

1. after a reasonable effort, the library has determined that an unused replacement cannot be obtained at a fair price; and
2. copies made in digital form are not distributed in digital form or made available to the public in digital form outside the library premises.
   
   "Obsolete" is further defined as meaning the machine necessary to view the copy of the work is no longer manufactured or reasonably available in the marketplace. 17 U.S.C. § 108(c).

Lending of Computer Software

MCCCD's libraries may lend computer software for temporary use by faculty and students. Any copy of a computer program lent by one of MCCCD's libraries must have affixed to the copy the following copyright warning:

NOTICE: WARNING OF COPYRIGHT RESTRICTIONS

THE COPYRIGHT LAW OF THE UNITED STATES (TITLE 17, UNITED STATES CODE) GOVERNS THE REPRODUCTION, DISTRIBUTION, ADAPTATION, PUBLIC PERFORMANCE, AND PUBLIC DISPLAY OF COPYRIGHTED MATERIAL. UNDER CERTAIN CONDITIONS SPECIFIED IN LAW, NONPROFIT LIBRARIES ARE AUTHORIZED TO LEND, LEASE, OR RENT COPIES OF COMPUTER PROGRAMS TO PATRONS ON A NONPROFIT BASIS AND FOR NONPROFIT PURPOSES. ANY PERSON WHO MAKES AN UNAUTHORIZED COPY OR ADAPTATION OF THE COMPUTER PROGRAM, OR REDISTRIBUTES THE LOAN COPY, OR PUBLICLY PERFORMS OR DISPLAYS THE COMPUTER PROGRAM, EXCEPT AS PERMITTED BY TITLE 17 OF THE UNITED STATES CODE, MAY BE LIABLE FOR COPYRIGHT INFRINGEMENT. THIS INSTITUTION RESERVES THE RIGHT TO REFUSE TO FULFILL A LOAN REQUEST IF, IN ITS JUDGEMENT, FULFILLMENT OF THE REQUEST WOULD LEAD TO VIOLATION OF THE COPYRIGHT LAW.

The copyright warning set forth above must be affixed "to the packaging that contains the copy of the computer program, which is the subject of a library loan to patrons, by means of a label cemented, gummed, or otherwise durably attached to the copies or to a box, reel, cartridge, cassette, or other container used as a permanent receptacle for the copy of the computer program." 37 CFR 201.24. In addition, the notice must be "printed in such manner as to be clearly legible, comprehensible, and readily apparent to a casual user of the computer program." Id.

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1 - Except where noted, the following rules apply to printed materials but generally do not apply to musical works, motion pictures or pictorial, graphic or sculptural works. They also do not apply to audiovisual works other than an audiovisual work dealing with the news, which are given special consideration. However, fair use considerations still apply to these types of works.

2 - The warning must be printed on heavy paper or another durable material in at least 18 point type. It must be clearly visible, legible and comprehensible to a casual observer in the immediate vicinity of the place where orders are taken. The warning must also appear on the actual order form. It can be placed on the front side of the form or immediately adjacent to the signature line. The size cannot be smaller than 8 points, but should be in the same type size used throughout the form and it must be clearly legible, comprehensible and readily apparent to a casual reader of the form.