Desktop Delivery and Interlibrary Loan

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RobTiessen/University of Calgary Library

Outline

•The rise of Desktop Delivery

•Traditional interpretation of copying on behalf of users

•Bill C-60 and Desktop Delivery

Outline

•Technical Adherence to 30.2(5) via TPM’s

•Relying on fair dealing not the library exemption

•The six factors in deciding fair dealing

•Applicability to E-Reserves

Rise of Ariel and then Desktop Delivery

• Ariel emerged as an alternative to faxing in 1990 – 1992.

• Prospero and other software programs emerged in 1999 that allowed libraries to post documents to web and send the requestor an email with a password to access the document.

• Canadian Libraries for the most part have not used post-to-web or other technologies to send digital copies of documents to users.

Traditional Interpretation of Copying for Users

Section 30.2 allows libraries to act on behalf of their patrons in fair dealing.

Before (and maybe after CCH) most libraries believed they couldn’t legally, have the right to provide interlibrary loan of copies or provide photocopying services without section 30.2.

Restrictions to Libraries in 30.2

•30.2(5) states that the copy given to the patron must not be in digital form.

•If an article is being photocopied from a newspaper or periodical other than a scholarly, research or technical periodical, the article has to be at least one year old.

•Works of fiction, poetry, drama or musical works in non-scholarly periodicals are not allowed.

Bill C-60 & Desktop Delivery

Bill C-60 would have added digital reproduction to the Access Copyright Licence. (in new Section 30.02)

Interlibrary loan restrictions (rewritten 30.2)

•Seven days for user to retrieve the article

•Library must take measures to prevent more than one printing or telecommunication of the article.

Technical Adherence to 30.2(5) via TPM’s

To comply with 30.2(5) the user cannot receive a digital copy. Libraries have interpreted this to mean that they must physically give the user a paper copy.

What would a system require to be able to give a user a print copy over the web without giving the user a “digital” copy?

System Requirements to comply with 30.2

•Restrict to one print copy because section 30.2(4) requires that a user can only receive a single copy.

•Cannot download a copy.

•Not able to preview the copy because previewing would make a copy in the user’s web cache.

Systems that can already do this

Relais International makes two products that can do this:

http://www.relais-intl.com/

•Relais Enterprise

•Relais ILL

Rights Market makes a DRM that works with email.

http://www.rightsmarket.com/

CCH vs. the Law Society of Upper

Canada Great Library of the Law Society of Upper Canada sued by legal publishers for:

•Providing a photocopy service for patrons

•Providing self-service photocopiers in the library

•Faxing photocopy requests to patrons

Relying on fair dealing not the library exemption

Para. 49 of the Supreme Court Judgement CCH Canadian Vs. the Law Society of Upper Canada:

… the s. 29 fair dealing exception is always available. Simply put, a library can always attempt to prove that its dealings with a copyrighted work are fair under s. 29 of the Copyright Act. It is only if a library were unable to make out the fair dealing exception under s. 29 that it would need to turn to s. 30.2 of the Copyright Act to prove that it qualified for the library exemption.

Large & liberal interpretation

Para. 51 of the Supreme Court Judgement :

"Research" must be given a large and liberal interpretation in order to ensure that users' rights are not unduly constrained…. Lawyers carrying on the business of law for profit are conducting research within the meaning of s. 29 of the Copyright Act.

Fair Dealing

Fair dealing is for the purposes of research, private study, criticism, review or news reporting. Sections 29, 29.1 & 29.2 of the Copyright Act.

•The fair dealing sections of the act are technologically neutral. A user can perform fair dealing by long hand; photocopying; or scanning.

•Libraries providing copying or interlibrary loan services for users can do the same.

Adherence to Fair Dealing in a policy

Para. 73 of the Supreme Court Judgement:

The Access Policy places appropriate limits on the type of copying that the Law Society will do… The Access Policy limits the amount of work that will be copied, and the Reference Librarian reviews requests that exceed what might typically be considered reasonable and has the right to refuse to fulfill a request.

What to consider when creating a policy

Take into account the following items:• The Great Library’s Access Policy reproduced in para. 61 of the Supreme Court Judgement.• The six factors as discussed in para. 54-60 and again in para. 66-73 of the Judgement.•The fair dealing exceptions.

The Six Factors

i. The purpose of the dealing will be fair if it is for one of the allowable purposes under the Copyright Act, namely research, private study, criticism, review or news reporting…

ii. The character of the dealingSingle copies are fine, multiple copies tend to be unfair.

The Six Factors

iii. The amount of the dealing…for the purpose of research or private study, it may be essential to copy an entire academic article or an entire judicial decision.

iv. Alternatives to the dealing…patrons…cannot reasonably be expected to always conduct their research on-site…

The Six Factors

v. The Nature of the work …the Access Policy puts reasonable limits on the Great Library's photocopy service.

vi. Effect of the dealing on the work…no evidence …to show that the market for the publishers' works had decreased as a result of these copies having been made.

Applicability to E-reserves?

•Use of E-reserves should be covered under research and private study (factor 1).

•Effect of the dealing on the work (factor 6). Should be ok if the reading is limited to students in the class.

•Amount of the dealing (factor 3). Wouldn’t want to reproduce an entire book. Would a chapter of a book or an article be fine?

Character of the Dealing (factor 2)

•If, however, a single copy of a work is used for a specific legitimate purpose, then it may be easier to conclude that it was a fair dealing.

•Is the fact that an e-reserve copy is a single copy ok? Or the fact that numerous students could make their own print or e-copy unfair?

Character of the Dealing (factor 2)

•If multiple copies of works are being widely distributed, this will tend to be unfair.

•It may be relevant to consider the custom or practice in a particular trade or industry to determine whether or not the character of the dealing is fair.

Resources

Bill C-60:http://www.parl.gc.ca/38/1/parlbus/chambus/house/bills/government/C-60/C-60_1/C-60_cover-E.html

Copyright Act: http://laws.justice.gc.ca/en/C-42/

CCH vs. LSUC Decision: http://www.canlii.org/ca/cas/scc/2004/2004scc13.html

Resources

In the Public Interest edited by Michael Geist: http://www.irwinlaw.com/books.cfm?pub_id=120&series_id=3

Protecting the Public Interest from the Canadian Library Association: http://www.cla.ca/resources/protecting_the_public_interest.pdf

Copyright Guide for Canadian Libraries by Wanda Noel. 1999. Canadian Library Association