RE: Fair use (RE: electronic journals CCC)

[Tom Williams <twilliam@bbl.usouthal.edu>]

Rick, we may have to respectfully agree to disagree on this one.  In your
scenario it would be possible to download an article and then email it to
3,000 people on your email list.  This is not the same as copying one
article from one online journal, copying it, and then sending via fax or
mail to ONE person.  The former is breaking the law, the latter, according
to my understanding of the fair use law, is not.

As a matter of fact, getting back to sending thousands of copies, it is
quite easy to make a copy of a print article, scan it (Prospero etc.) and
then email it to that same 3,000 - illegal though it might be.

You say that it's common sense on the part of the publishers to impose
rules prohibiting sending online articles via email.  I see no sense,
common or otherwise, in this policy.  Case in point, we have a specific
title in our print collection and also online.  We get a request for an
article for that title.  According to the restrictions many publishers
want in place, we CANNOT print off a copy of that article from the online
version.  We have to go to the stacks, pull the hardcopy, copy it, and
then send/fax.  In many cases the copies look exactly the same, thanks to
pdf files and no-one can really tell the difference.  So why make such a
fuss?  Makes no sense.  Most of our licenses are already excluding our
right to pull up the article online and forward to the requestor online,
but to take that a leap forward and say we cannot even send a copy printed
from the online, but have to go to the stacks and pull the original.  
Looks as though the publishers are trying to add an annoyance factor to
their licenses.

To clarify:  the annoyance factor described refers to the library's
ability to serve non-traditional users.  A regular library to library ILL
can still be printed off the online and sent.  However, this right is
removed if the user is not a library and not affiliated with the
university or hospital in a traditional way (faculty, student, etc.)  I'm
sure many of you have gotten requests from people in your communities
needing documents that are housed (E and hard copy) in your library.  If
you make a copy and send to them without charge, as I understand it, no
problem.  However, if you have to charge a nominal cost recovery fee then
all of a sudden you cannot use the online titles in any way.  You have to
go to the print and pull the print to do the copy.  If you do cost
recovery some publishers claim you are now engaging in "commercial use."  
Yeah, our libraries must be getting rich with this - NOT!

Bottom Line:

As currently written and as I, and many others, understand them, the u.s.
copyright laws, including fair use, make no distinction between print,
online, or any other format of material - they even include phonorecords
in the law.  What the publishers are now trying to do is to circumvent the
fair use laws by claiming that online journals are exempt from some of
those laws.  The copyright laws at this point do NOT reflect that view.  
We should not sign contract which remove fair use rights as provided in
the law.  Do these publisher licenses supercede the law?  I think not
although I am certainly no lawyer.  The law is the law and none of us can
willy-nilly impose our own "revised" laws that could hold up in court.

The librarian perspective must be to fight to ensure that fair use stays
with us, no matter the format of the material.

-- 
Thomas L. Williams, AHIP
Director, Biomedical Libraries and
 Media Production Services
University of South Alabama
College of Medicine
Mobile, Al 36688-0002
tel. (334)460-6885
fax. (334)460-7638
twilliam@bbl.usouthal.edu

On Tue, 8 May 2001, Rick Anderson wrote:

> > Show me data to support the assertion that allowing
> > electronic distribution would result in the kind of scenario you describe.
> 
> OK, here's the data: I have a distribution list in my e-mail address book
> that reaches just under 3,000 people.  If this message had an article
> attached to it, I could forward that article to every one of those people
> in a matter of three mouseclicks.  That's considerably less time and
> effort than it would take me to print out that same article and bring it
> home to show my wife.  Tom, in a previous message, points out that someone
> who is out to "cheat the copyright laws" will do so regardless of format,
> and he may be right (though I have a hard time picturing this person
> making and mailing out 3,000 copies).  But I think copyright owners are
> less concerned about willful pirates than they are about people who don't
> understand the difference between fair and unfair use (of which there are
> many) and who will blithely forward an article to an e-mail list or a
> group of colleagues (who will send it to their colleagues and so on)
> without any ill intention.
> 
> Would that scenario justify copyright holders in screaming and running
> around in circles?  No.  Does it justify them in saying "You have to
> fulfill ILL requests using paper copies instead of electronic ones"?  
> Yes, I think so.  When they don't impose such restrictions, I'm a happy
> guy.  When they do, I understand.  Seems like common sense to me.
> 
> -------------
> Rick Anderson
> Electronic Resources/Serials Coordinator
> The University Libraries
> University of Nevada, Reno
> 1664 No. Virginia St.
> Reno, NV  89557
> PH  (775) 784-6500 x273
> FX  (775) 784-1328
> rickand@unr.edu