two articles - one journal issue

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  • Here's a really quick question. (I hope.)

    I've been given the responsibility of paying the CCC for the interlibrary loan copyright infringement this semester, and I have my 5-1-5 violations all nicely listed. That's not the problem.

    What about when two articles have been ordered from the same issue of a journal? My gut tells me that this is fair use infringement, but I can't find it spelled out in CONTU.

    Can anyone help me? Thanks!
  • I am not the best person to answer your question because I am opposed to the "play it safe" mentality that most libraries have in regard to copyright permissions. I am also opposed to replacing the law with guidelines. However, since no one else has answered your question, I'm going to do the best that I can.

    I suspect that you want a simple yes or no, but it's not that easy.

    There are two important sections of copyright law: 107 (fair use) and 108 (reproduction by libraries). These are independent sections. According to section 108, "nothing in this any way affects the right of fair use as provided by section 107. In other words, if your use is legal according to one section, you do not need to worry about the other section.

    The CONTU guidelines apply to section 108. I think you are correct to say that the CONTU guidelines do not apply to your situation.

    According to section 108, "The rights of reproduction and distribution under this section apply to a copy, made from the collection of a library or archives where the user makes his or her request or from that of another library or archives, of no more than one article or other contribution to a copyrighted collection or periodical issue, or to a copy or phonorecord of a small part of any other copyrighted work."

    Were the two articles requested by the same user? If so, then section 108 has been violated. If not, then section 108 has not been violated.

    However, I think your use is a fair use according to section 107.

    Fair use is determined by the four factors:
    character of use (educational or commercial)
    nature of work (creative or factual)
    amount used
    effect on market

    Without going into the details, I believe that the use of either article is fair. If two articles are from the same issue, the amount used and market effect may change, but the character of the use and the nature of the work do not.

    The law does not define how much is too much or how to determine the market effect. Fair use must be decided on a case-by-case basis. You have to make your own decision.

    The market effect is the most important factor. A lot of people say that any negative effect makes a use unfair. I disagree. In my opinion, a single lost sale has a trivial impact on most periodical markets.

    In my opinion, the trivial market effect outweighs the amount used unless it is still possible to buy the back issue and the two articles are more than 50% of the issue.

    The bottom line:
    1. Two different users: legal according to section 108. CONTU doesn't apply.
    2. Single user: illegal according to section 108 but probably legal according to section 107. You need to make your own determination.

    If you'd like me to discuss anything further, just ask.
  • Thank you for your time & advice!
  • VMaloy:

    I think you have to go with section 108 because this is really clearly laid out in the qoute Alfred gave you from 108.

    If a copyright exemption addresses your specific situation, go with it (my advice).
    I may have more to add after I think on this a bit.

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