Ethics and the Librarian

Image courtesy of Morguefile

Part of the job of a librarian is keeping current on copyright law. This is important because it affects both the librarian and the patron. The librarian must be careful because if he or she is asked to make copies of parts of a journal or book,the librarian must know how the law applies to this situation. In one class, Professor Don Hamerly informed us that in his experience the librarian was looked upon as the source of knowledge regarding copyright law. This does not require a law degree, but the librarian should read up on both copyright law itself, and also the interpretation of these laws by the legislature and the courts. The following is question was asked of us in Serials class. In this case it involves a professor making copies of a journal. This is a complicated area in that it involves many aspects of copyright law. It requires ethical responsibility on the part of the professor. The librarian should always be ready to give advice on this area.

A professor discovers that one of the journals she wants to use for a class is available only in print rather than in full-text, digital format. Realizing that students will be frustrated very quickly in trying to access the single copy of each issue, the professor decides to make copies of the articles for each student. All articles have been published with the last 5-6 years. Does the professor have a right as an instructor who works in a not-for-profit university to make 13 copies of 10 articles for class use? Does the university need to pay any sort of royalty? If so,to whom would the royalty be paid-the author or the journal publisher? Is there a chance that the students will be visiting the professor in jail? Discuss some of the various laws or acts that have an impact this situation.

Given the many levels of this scenario, it seems best to answer each level one after the other. The professor is not allowed to make copies. There are however, details of the law which must be examined in order to support such a decision. In Section 107 title 17 of the United States Code it is proclaimed that,"...the fair use of a copyrighted work, including such use by reproductions in copies or phonorecords...for purposes such as criticism,comment,news reporting, teaching (including multiple copies for classroom use)...is not an infringement of copyright¹". Case closed, right? No. After this statement of the law,there is the further explanation of what constitutes fair use. Since reference is made throughout this publication to,"...determining whether the use made of a work in particular case is fair use,the factors to be included shall include...:²" (1)the purpose and character of the use,including whether such use is of a commercial nature or is for nonprofit educational purposes. (2)the nature of the copyrighted work; (3)the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4)the effect of the use upon the potential market for or value of the copyrighted work."

Let us look at each factor as it relates to this case. In this instance the copies are being made for students, not for profit. The second factor is,"the nature of the copyrighted work". In his analysis of this factor copyright attorney Chuck Valauskas noted that,"The more informal,the more functional the work,the broader the application of the fair use defense³". In this case let us assume it is a work of scholarship that the professor has copied.

In the instance of the third factor,we can say that certainly the professor has exceeded the limit. The following information builds on the "four factors" listed above. In the,"House Report: Statement of Intention as to Classroom Reproduction" there is an area which states the exact guidelines for a teacher or professor to follow. One of the requirements is that the copy being made can only be of a certain amount of information,specifically,"Prose:(a)Either a complete article,story or essay of less than 2,500 words...⁴". Another part of this issue is that of spontaneity. In the guidlines it is stated that the instructor, due to a limited amount of time, cannot be expected to get confirmation on a request for copies to be made for her class⁵.

The example we are given of the professor seems to show that this was not something she had months to plan for. Therefore she does meet the requirement for spontaneity. Let us assume as well that the article that she copied is "...less than 2,500 words...⁶ " So far she has met these requirements. In III C (a) of the guidelines it is written that,"Copying shall not: substitute for the purchase of books, publishers reprints or periodicals⁷". The scenario that is depicted seems to indicate that the school has a subscription to this periodical. Therefore the professor would not be violating this rule.

It might be argued that the professor, by providing such copies is making the students purchase of such a periodical unnecessary, so in fact violates this rule. However, given the spontaneity rule discussed previously,we cannot expect each student to have to subscribe to this publication in order to obtain an article. Also the copies from the journal might pique the interest of some of the students to further explore other issues. Yet given the amount copied, it would seem that this would dissuade the majority of students from purchasing this publication.

Given the the professor has met the requirements that have been stated so far, is she free to make copies? Well, let us assume that the instructor obtained this periodical from the university library. In the ,"House Report:Right of Reproduction and Distribution Under Section 108" concerning libraries and archives there is the following paragraph:..."the right of reproduction granted by this section does not override any contractual agreements assumed by a library or archives when it obtained a work for its collections. For example, if there is an express contractual prohibition against reproduction for any purpose, this legislation shall not be construed as justifying a violation of the contract^"7.

So now we must look to see if the library purchased this periodical as part of a package deal with a publisher where a contract was signed which governs the use of the material. The difficulty is deciding which applies:the teacher rules, or those for libraries and archives. Technically, the periodical is the property of the library. However,it is a professor making the copies for her students, not a librarian making copies.

However, given the amount of copies the professor is making, ultimately she would have to pay for them. On the back of the front cover of the American Journal of Philology, there are two paragraphs in tiny font. The first paragraph proclaims,"No portion of this journal may be reproduced by any process or technique without the formal consent of the publisher. Copies for personal or internal use may be made on the condition that the copier pay a fee of $.20 per page through the Copyright Clearance Center...for copying beyond that permitted by Section 107 or 108 of the U.S. Copyright Law⁸". When you add up all the evidence against the professor, I am afraid that she would be guilty of violating copyright law, unless she paid the fee.

United States Copyright Office,Circular 21 Reproduction of Copyrighted Works by Educators and Librarians Rev 11/2009. http://www.copyright.gov/circs/circ21.pdf.
Ibid.,4.
"Copyright,Other Intellectual Properties,and Licensing: The Basics". Charles C. Valauskas. 2010. PowerPoint Presentation.
United States Copyright Office,Circular 21 Reproduction of Copyrighted Works by Educators and Librarians Rev 11/2009. http://www.copyright.gov/circs/circ21.pdf.
Ibid.,5-6.
Ibid.
Ibid.,16.
American Journal of Philology 131,No. 1 521 (Spring 2010).