Re: [CNI-COPYRIGHT] [CNI-COPYRIGHT] Re: "Do not sell to schools"and copyright

My comments were addressed to the general discussion and not specifically to Lloyd Davidson's posting. Because statements are often misconstrued in these email exchanges, I normally refrain from engaging in discussions that have the potential of turning into debates. Nevertheless, I feel compelled to clarify my points.

In regard to differential pricing and "fair use," I said that these structures provide "additional support" for "fair use" arguments, not the sole basis. Section 107 of the Copyright Law states the parameters of "fair use," and librarians should be more engaged in developing policies that are predicated on the law. The goal is to protect "fair use" rights. If librarians do not defend "fair use," who will?

In regard to case law, I would appreciate it if someone would direct me to a ruling pertaining to copyright infringement as it relates to material owned by a library and placed in its reserves. The case law that I am familiar with deals with commercial copyshop operations.

I also believe that Professor Patterson's opinion should not be so quickly dismissed. The American Library Association respects his position enough that it makes his views available at its website.

I will reiterate that there is nothing in the law that requires libraries to restrict the placement of materials on reserve to one term. The one term restriction finds its origin in the "Guidelines for Classroom Copying." In my opinion, based on a careful reading of the House Committee on the Judiciary Report No. 94-1476, Congress never intended these guidelines to apply to libraries. Even in respect to classroom copying, the House Committee declared that the guidelines were "the minimum and not the maximum standards of educational fair use under Section 107 of H.R. 2223."

In my posting I stated that "individual subscriptions" should not be placed in the collections as a substitute for library subscriptions. I made no reference to replacement copies.

Michael G. Webster
Eastern Oregon University

"Lloyd A.Davidson" wrote:

> At 05:30 PM 4/5/2003 -0500, Michael Webster wrote:
>
>
>> <snip>
>> The good news is that the institutional pricing arrangements provide
>> additional support for "fair use" practices in libraries of
>> not-for-profit institutions. In my opinion, the payment of
>> institutional subscription prices further justifies the placement of
>> journal articles on both print and electronic reserves. It puzzles
>> me why academic librarians pay royalties to place articles on
>> reserve when they have already implicitly contracted with publishers
>> for these very uses.
>
>
> Only a relatively few journals, specifically those aimed at individual
> subscribers, such as those published by societies, Nature, Cell and
> other such journals, have differential pricing. This is by no means a
> universal phenomenon. Whether such an agreement as you propose is
> implicit or not, even in cases where differential pricing is applied,
> is arguable, to say the least, and such a contention would have to be
> tested in court before it was proven. Most libraries would find this
> too flimsy a base to test in a court of law against a major publisher,
> such as the Wall Street Journal, which charges quite hefty royalty
> fees. Please do have your library test this principle and we'll see
> what happens.
>
>
>> By the way, there is no law that states that materials can be placed
>> on reserve for only one semester. The only reference to a one term
>> limitation is in the legislative history that incorporates the
>> "Guidelines for Classroom Copying" that were never intended to apply
>> to libraries.
>> I recommend that all librarians review the comments of Professor L.
>> Ray Patterson in his interview with Carrie Russell, copyright
>> specialist for the American Library Association, which are available
>> at http://copyright.ala.org/pattersonq&a.html .
>
>
> In the first place, libraries generally place things that haven't yet
> gained publisher permission to be placed on reserve, while permission
> is sought. Ray Patterson is a wonderful man with quite liberal
> opinions in this area. Unfortunately, he is now retired and his
> national and international following among publishers is far too
> limited, I'm sure. Perhaps somebody like Larry Lessig would be
> willing to argue this point in the courts, but after his lack of
> success in overturning the copyright extension act, I wouldn't give
> him even money in a case based on this premise either.
>
>
>> The moral to the story is that libraries should never consider
>> placing individual subscriptions in the library collection. This
>> would definitely constitute fraud and vitiate any "fair use"
>> rationale.
>
>
> Can you point to any case law to support this remarkable statement?
> Replacement of a worn or lost copy of a journal that the library
> subscribes to from donated personal issues is commonplace. Fraudulent
> use of personal copies as a replacement for library subscriptions is
> highly illegal.
>
>
>
>> In regard to the comments about institutional pricing and
>> subscription agencies, jobbers have nothing to with journal prices.
>> They make their money by creating economies of scale and charging a
>> "service charge" for their services (payments, claims, replacement
>> issues, etc.).
>
>
> I take it you are referring to this quote of mine:
>
>> Recently a company began purchasing journals at individual
>> subscriber
>> prices and then reselling these journals to libraries at
>> institutional
>> prices. This was quickly stopped by publishers and the company went
>> out of
>> business. They could have faced criminal charges, but I don't
>> believe
>> publishers pushed for this.
>
>
> This was a highly irregular get-rich-quick scheme designed by a single
> company. I'm sorry you didn't hear about it. I take it they tacked
> on service charges in addition to the differential prices they
> profited from. The case was reported in the Library Journal Academic
> News Wire sometime last year, probably prior to November, since I seem
> to have copies of the majority of those published from November on.
> You can probably find reference to it elsewhere, if you are actually
> interested. I'll leave it to you to dig it out.
>
> Regards,
> Lloyd
>
>
>
>> Michael G. Webster
>> Eastern Oregon University
>>
>> "Lloyd A.Davidson" wrote:
>>
>> > At 05:30 PM 4/3/2003 -0500, you wrote:
>> >
>> > >Date: Sat, 29 Mar 2003 15:06:54 -0600
>> > >Subject: [CNI-COPYRIGHT] Re: "Do not sell to schools" and
>> > copyright
>> > >From: "Belvadi, Melissa" <mbelvadi[_at_]maryville.edu>
>> > >
>> > ><snip>
>> > >I thought that in theory and in the absence of an explicit
>> > publisher
>> > >restriction, libraries could, if they were willing to do all that
>> > extra work
>> > >title by title, get individual subscriptions in the names of, for
>> > instance,
>> > >individual librarians, and pay just the individual price. With
>> > prices so
>> > >high in the last few years, this might finally have become a
>> > cost-effective
>> > >option for some titles.
>> > >
>> > >Am I wrong? Is there actually a serious legal ground (rather than
>> > >administrative cost one) behind why libraries do NOT just pay for
>> > their
>> > >subscriptions individually to their librarians?
>> > >
>> > >Thanks for any advice, even IANAL advice!
>> > >
>> > >Melissa Belvadi
>> >
>> > Contracts for individual subscribers and for libraries are, in
>> > fact,
>> > expressly written to forbid individual subscriptions to be used to
>> > supply
>> > libraries or other institutions with copies in lieu of a library
>> > subscription. As long as a library has a subscription, however, it
>> > is OK
>> > to replace a worn or torn library copy of a journal with one from
>> > an
>> > individual's collection. It is also OK to replace missing copies
>> > with
>> > donations from individuals.
>> > Recently a company began purchasing journals at individual
>> > subscriber
>> > prices and then reselling these journals to libraries at
>> > institutional
>> > prices. This was quickly stopped by publishers and the company
>> > went out of
>> > business. They could have faced criminal charges, but I don't
>> > believe
>> > publishers pushed for this.
>> > The rationale for the difference between individual and
>> > institutional
>> > prices is that an institutional subscription may erode the
>> > journal's
>> > individual subscriber base. This is an even more threatening
>> > possibility
>> > when subscriptions of journals published in digital format are
>> > distributed
>> > campus-wide since this makes the journal more conveniently
>> > available than
>> > simply having one paper copy in the library.
>> > It is true that many publishers price institutional
>> > subscriptions
>> > unfairly high relative to prices offered to individual subscribers,
>> > but
>> > with virtually all scientific, technical and medical journals
>> > switching to
>> > digital formats, this issue is only going to become more important
>> > to
>> > publishers over the next few years. Unless publishers can come up
>> > with
>> > some reasonable solutions to this quandary, it is quite possible
>> > that the
>> > age of the academic individual subscriber might be at an end. Of
>> > course,
>> > some journals are not marketed to individuals at all (e.g. Brain
>> > Research
>> > at $18,000+ per annum) but journals like Cell, Science and Nature
>> > are
>> > facing a serious dilemma about how to protect their subscriber
>> > base, upon
>> > which their advertising revenue depends.
>> >
>> > Lloyd
>>
Received on Tue Apr 08 2003 - 11:13:39 GMT