We have added a sentence to our Collection Development Policy:
‘The library will not purchase print material that requires a license or has limits on usage beyond the Copyright Act.’
i.e. Australian copyright act.
Best wishes
Susan
From: Karin Wikoff <[log in to unmask]>
Date: Wed, 2 Mar 2022 11:06:28 +0000
We take no position on what individuals do with their own money. We are saying our library will not license print materials. Here's our draft language so far (still working on a final form):
"The Ithaca College Library complies fully with all provisions on the U.S. Copyright Law and its amendments. The library strongly supports the Fair Use section of the Copyright Law (17 U.S. §
107), which permits and protects citizens’ rights to reproduce and make other uses of copyrighted works for the purposes of teaching, scholarship, and research. The library also strongly supports the First Sale doctrine of the Copyright Law (17 U.S. §
109), which provides that “an individual who knowingly purchases a copy of a copyrighted work from the copyright holder receives the right to sell, display or otherwise dispose of that particular copy, notwithstanding the interests of the copyright owner.”
(U.S. Dept. of Justice). The library will not license print materials or sign away Fair Use or First Sale privileges for them."
(The first part about Fair Use already existed in our policy; the rest is the new draft).
I don't know if the publisher is hoping their policy will deter libraries from buying the materials in an attempt to force more individuals to shell out for their own copies, but even if that is the case, it does not change our position -- that it is wrong to roll back First Sale. That is where we draw the line, in part because we can't realistically support a new category of physical books, each with its own set of anti-copyright restrictions.
If our position falls in line with a publisher strategy to squeeze more profits out of other customers, that stinks, but it's not something over which we have any control.
What is the alternative? That we cave in and voluntarily give up First Sale? Not here.
My opinions,
Karin
P.S. If anyone has a better, more clear, and more recent quotation describing the rights that come with owning a physical book under the doctrine of First Sale without getting sidetracked into a discussion of sound recordings, let us know!
From: Darby Orcutt <[log in to unmask]>
Date: Tue, 1 Mar 2022 08:44:32 -0500
Colleagues,
There are, as noted in this thread, more than enough pragmatic reasons alone for a library to not agree to this sort of license (management of an unusual sort of print item not the least of these), but I suspect that CHE is perhaps licensing in this way in order to actively deter library purchases (without the appearance of outright banning library sales). They are clearly interested in selling library and other subscriptions as well as monetizing this select content on top of those revenues. Libraries not purchasing these particular items would seem exactly what they want, especially if another customer (or multiple customers) at the same institution are purchasing instead, and there is no disruption to their subscription revenues.
For those who are suggesting that their library is taking a stand against this model, are you advising campus partners to do so as well, or just acting as a library unit? Are you refusing to purchase any CHE content, or just the individual items licensed in this way?
Thank you,
Darby
Darby Orcutt
Assistant Head, Collections & Research Strategy
NC State University Libraries
On Tue, Mar 1, 2022 at 12:23 AM LIBLICENSE <[log in to unmask]> wrote:
From: "Dave Hansen, J.D." <[log in to unmask]>
Date: Mon, 28 Feb 2022 20:01:08 +0000
In terms of legality – copyright holders can put significant license restrictions on downstream use (e.g., library loans), but efforts to do so aren’t always effective. The courts have developed a set of factors to determine whether any given transfer of a copy constitutes a “sale” or actually a “license.” If it’s actually a “sale” then the “first sale” doctrine applies and copyright law doesn’t restrict further transfer, lending, or sale.
For example, in UMG Recordings v. Augusto, UMG sent out promotional CDs with the following text on a sticker that came with it:
This CD is the property of the record company and is licensed to the intended recipient for personal use only. Acceptance of this CD shall constitute an agreement to comply with the terms of the license. Resale or transfer of possession is not allowed and may be punishable under federal and state laws.
Augusto sold a bunch of these copies on eBay and UMG sued. The court said that downstream distribution did not constitute copyright infringement in violation of the license because the initial distribution constituted a sale (transfer) of the CD, and therefore the “first sale” doctrine applied. Among the factors that the court looked at in that case were 1) whether the license was designated as a “license”, 2) whether the purported license reserved title in the copy to the original owner, and 3) whether it required eventual return of the copy to the owner. Ultimately, it was looking for whether UMG still held “sufficient incidents of ownership” to “sensibly be considered the owner of the copies,” or whether in fact ownership of the CDs had been transferred.
In this case, the text that The Chronicle includes does call itself a “license” but… it seems to me, that’s about all The Chronicle has going for it to assert that these print copies are actually just “licensed” and not sold to libraries. CHE isn’t otherwise asserting continued physical title over the copies sold, or requiring eventual return of the copies, and (aside from the restriction on distribution) isn’t making any other meaningful restrictions on uses of the copies.
----
Dave Hansen
Lead, Copyright & Information Policy
Associate University Librarian for Research, Collections & Scholarly Communications
Duke University Libraries
(m) 704-747-4314