Re: In-house library photocopying

On February 27, 1998, Teresa Winning <interlib[_at_]ouvaxa.cats.ohiou.edu> wrote:
>
> Our HSL sends out copies of the Table of Contents for each journal the
> library subscribes to. Faculty circle or mark the articles they want
> copied and send their order in to the HSL staff. The articles are
> retrieved, copied and the patron is charged a fee for this service. In
> many cases, by sending out the table of contents, a particular article
> may be requested many times by different doctors at the college of
> medicine.
>
> Does this constitute a violation of free use?
>
> To muddy the water even further, if a libraries web page makes the table
> of contents for any or all of their journal titles, and also offers a
> document delivery service, is this considered fair use?

These facts are remarkably similar to the facts in American Geophysical Union v. Texaco, 60 F.3d 913 (2d Cir. 1995), in which the Second Circuit held that institutional, systematic copying of this type was not a fair use. While many commentators disagree with that decision, it is directly on point, so you would at least want to be very careful about consulting your school's legal counsel before disregarding it.

     One possible distinguishing factor is that your school probably has a public library, rather than a private one, so you can take advantage of Section 108 as well as Section 107. [They are cumulative.] Section 108(d) permits you to make copies of a single article from a periodical under certain circumstances. That section, however, is subject to significant limitations, including Section 108(g), which suggests that "systematic reproduction or distribution of single or multiple copies" would not qualify for exemption under Section 108(d). Since this is systematic solicitation of user requests, it may be problematic, even if you otherwise qualify under Section 108(d). You would be well advised to seek detailed legal advice from your school's attorney or legal counsel.

Tyler T. Ochoa
Associate Professor
Whittier Law School
tochoa[_at_]law.whittier.edu Received on Tue Mar 31 1998 - 02:46:56 GMT