Polymath A (mostly) technical weblog for Archivale.com

January 6, 2010

What about Copyright?

Filed under: Uncategorized — piolenc @ 9:22 am

What about Copyright?

“Your catalog [http://www.archivale.com] includes copyrighted works – isn’t that illegal?” This question comes up often, and needs to be addressed for our customers’ (and our own) peace of mind.

The first and most important point to be made about copyright, and intellectual property “rights” in general, is that they are not rights. They are privileges granted by government for a specified length of time (typically, the life of the creator plus a certain number of years) to ensure that creators will benefit from the propagation of their works. Rights are eternal, inherent and universal; privileges expire, are granted by an outside authority and apply only within that authority’s jurisdiction.

The second, and almost equally important, point is that the purpose of copyright law, clearly stated in the US Constitution,  is to make works available, not to sequester them. Any interpretation of copyright law that tends to make works inaccessible is therefore contrary to the clearly stated purpose of the law.

Fair Use

To ensure availability, there is what is called a “Fair Use” doctrine, that spells out the circumstances under which a copyrighted work may be used without compensating the copyright holder and without securing permission; in US copyright law, this doctrine appears in Section 107 of the US copyright statutes.

Favored uses under Fair Use are research, education and scholarship.

In settling whether a contested use constitutes Fair Use, the courts use a kind of “four-way test.” They consider:

  1. the purpose of the use, including whether the use is primarily for commercial or noncommercial purposes;
  2. the nature of the work;
  3. the amount and importance of the portions used in relation to the whole of the original work; and
  4. the effect of the use on the potential market, or value of the original.

As we understand it here at Archivale, “use” means ultimate use, in other words the use to which the copyrighted material is put by the end user—our client (or if our client is a dealer, the customer to whom he sells the material that we furnish). It is the end-user’s responsibility to ensure that he complies with the law that applies where he lives and/or works, and in the event of a dispute the question of Fair Use has to be settled between the client and the competent local authorities.

Library Exemptions

The US copyright statutes also contain a broad set of exemptions to allow libraries to do their work of propagating knowledge at minimal cost to those seeking it. These exemptions are contained in Section 108 of the US law, and we believe that other countries have similar—though not necessarily identical—provisions.

  • Section 108(b) allows copying of unpublished works for preservation or security or for deposit at another library. Although our primary purpose in copying materials is not preservation, the effect in many cases is to propagate rare (and sometimes unique) works, in effect preserving them. That this actually occurs is proven by the fact that Archivale’s predecessors have sold copies of US Government documents to the US Government, because those documents could no longer be found in the Government’s own archives.
  • Section 108(c): allows copying of published works for replacing a damaged, deteriorated, lost, or stolen copy, but only if “an unused replacement cannot be obtained at a fair price.” The statute contains no definition of a “fair price.” Our opinion is that the prices charged for most academic books, technical journals and technical reports are not fair with respect to the purpose of copyright law because they do not favor the propagation of the works; instead, they are so high that only well-endowed libraries and research institutions can afford them. Researchers who do not have access to such institutions, and lack sufficient disposable income to purchase the needed works themselves, are excluded.
  • Section 108(d): allows copying of articles, or contributions to collections, or small parts of larger works, for a patron’s private study, scholarship, or research.
  • Section 108(e): allows copying of entire works for a patron’s private study, scholarship, or research, if “a copy . . . cannot be obtained at a fair price.” See our comment on Section 108(c).

These provisions matter to us because we believe that our modus operandi matches that of a library better than any other entity considered by the law.

  • Admittedly, we do not allow our materials to circulate – we don’t lend them – but that is true of many other libraries as well, and nearly every recognized library has within it “special collections” that do not circulate, even if the general collection does.
  • Our pricing is based on the cost of reproduction and distribution – a fixed amount per photocopy sheet or scanner frame – not on the “market” value of the material.
  • We do sometimes sell original, printed copies of books and reports that are surplus to our needs, but this too is done routinely by “real” brick-and-mortar libraries, and our surplus offerings are priced to move – that is, the primary object is to make room in our shelves and file drawers, not to earn the maximum that “the traffic will bear.”

The fundamental points above need to be kept firmly in mind, especially now that the US Congress seems determined to extend copyright “protection” indefinitely and to impose it even on works whose creators never asked for it. US legislators, fortunately, haven’t repealed Fair Use or the library exemptions, and they haven’t been able to change the clearly stated intent of the framers of the Constitution. Knowledge still has a chance to be free.


  1. [Standard disclaimer: I’m not a lawyer].

    But I am a librarian, and as such I must take issue with several of your contentions.

    Perhaps. But, I believe, in other countries which adhere to the Berne conventions, copyright is considered “inherent” in a work the moment it is published. “To publish” is “to make public”. This is certainly the case in Canada.

    It is not necessary to register a work in order for it to be ‘copyright’. Hence, the original statement “some materials appear….” is arguably meaningless. In principle, all work is ‘copyright’, unless it has passed into the public domain, as you correctly mention, after the term has expired.

    Under US four-way test you quote, “the amount and importance of the >>portions<< used in relation to the whole of the original work…" the important word is "portions". Copying a work in its entirety without the author or publisher's permission is quite simply, piracy – regardless of whether you sell it or not.

    If someone were to distribute entire works without permission, it would seem that they would be the ones not making "fair use" of them. Such a distributor cannot put the onus for "fair use" on the downstream customer – they would have already violated that principle themselves.

    The law is indeed intended "to make works available" – by guaranteeing that their creators have a source of income for a certain number of years. You say: "Our pricing is based on the cost of reproduction and distribution – a fixed amount per photocopy sheet or scanner frame – not on the “market” value of the material." That violates the principle because it takes away revenue from the creators.

    As a qualified librarian (that is, someone with an MLS), I find your description of archivale as "a technical library whose holdings do not circulate; that is, they cannot be borrowed" quite ludicrous. Distributing copies is "circulating" them. Many libraries contain only digital materials these days – properly licensed ones.

    Libraries do not allow patrons to copy entire works. There are "fair use" warnings posted by the photocopiers. That is because librarians are ethically bound to protect intellectual property rights. (See the ALA Code of Ethics).

    [As creator of this comment, I hereby assert that it is my intellectual property, and grant you the right to post it on your Blog to your heart's content.]

    Comment by Chris — January 6, 2010 @ 1:23 pm

  2. I cannot believe this will work!

    Comment by Tjäna Pengar Roulette — January 9, 2010 @ 4:22 am

  3. Considering how badly corporate lawyers have obfuscated this issue, I am not surprised at your disbelief. Nevertheless, my little post is based on solid research and over twenty years of experience in furnishing technical documentation. Obviously, I do not know the law in Germany, but I am confident that it is close to US law because of the effort that has lately gone into international harmonization of copyrights, and intellectual-property “rights” generally. If you are interested, please look up the relevant law in your area and post another comment highlighting the differences in both the statutes and their application.

    Comment by piolenc — January 9, 2010 @ 6:15 am

  4. Chris’s comments are pretty much the Party Line among professional users of copyrighted materials, which is why I did my own research and wrote this post. Corporate lawyers have done their very best to make any unpaid use of copyright material impossible, and their brainwashing has generally been quite successful. In effect, they have created their own corporate law through intimidation, by forcing their victims to create corporate policies and “codes” that went well beyond what the law really requires.
    The commenter assumes facts not in evidence when he says “it takes away revenue from creators.” If the creator is making no effort to make his work available, he can’t claim that he is being harmed by my doing so. If the work is in print and in stock for delivery, that’s a different story. Dover in particular goes in and out of print with several of their excellent reprints; when I learn that a Dover edition of something in my catalog is back on the shelf, I inactivate that entry until the print run is exhausted. Not that it’s really necessary, since the Dover editions are often cheaper than my photocopies!
    I have had no trouble copying complete works in libraries, and in obtaining those services from libraries, simply by formally assuming responsibility for any resulting copyright violation – something the commenter seems to claim is impossible. I have done this both on-line and in person. Mind you, I was dealing with American and British libraries – not Canadian ones.
    I see no sense in using the same term, circulation, both for lending and for delivering materials with no expectation of return. They seem quite different to me, and the latter is inconsistent with the etymology of the verb circulate. In any case, I made it plain in my post how I intended circulation to be interpreted. The commenter is of course free to use the terminology that he prefers, but I plan to continue using mine.

    Comment by piolenc — January 9, 2010 @ 8:24 am

RSS feed for comments on this post. TrackBack URL

Leave a comment

Powered by WordPress