Senate Example 1
A library with a collection of journals in biology informs other libraries with similar collections that it will maintain and build its own collection and will make copies of articles from these journals available to them and their patrons on request. Accordingly, the other libraries discontinue or refrain from purchasing subscriptions to these journals and fulfill their patrons’ requests for articles by obtaining photocopies from the source library.
- Comment: The real test is one of degree: How many copies are being requested by the libraries that cancel their subscriptions? Each library certainly may request copies within the CONTU Guidelines, which we will get to shortly. Also remember that the first sale doctrine allows a library to freely lend its material to other libraries, regardless of section 108 limitations, as it isn’t making any copies. Nowadays, it’s more likely that the library will get the journal electronically via a license agreement. In this case, the license will control. You will want to review carefully its terms, especially those dealing with lending and document delivery.
Senate Example 2
A research center employing a number of scientists and technicians subscribes to one or two copies of needed periodicals. By reproducing photocopies of articles the center is able to make the materials in these periodicals available to its staff in the same manner which otherwise would require multiple subscriptions.
- Comment: This sounds like Texaco, except here the library makes the copies rather than the scientist. If the library makes so many copies that copying does, indeed, substitute for additional subscriptions—if but for the copying the library would need additional subscriptions—then the copying is systematic and violates 108(g)(2).
- Reactive is better than proactive. A library that actively promotes its copying services is engaging in risky business. If your library sends out weekly or monthly tables of contents from recently published journals to professors or lawyers, you would be wise not to advertise that the library will photocopy articles upon request. A library that becomes a copying factory will run afoul of the related or concerted copying prohibitions of 108(g)(1), and perhaps the systematic copying proscribed by 108(g)(2). Remember that section 108(g) begins with these words: “The rights of reproduction and distribution under this section extend to the isolated and unrelated reproduction or distribution of a single copy or phonorecord of
