Copyright Law, Library Reproduction, and E-Resources
All matters of law are complicated. We at the JKM Library are not lawyers, and we are especially not your lawyers. The following explanation is not to be understood as legal advice; it is merely intended to help you understand some practical aspects of U.S. copyright law as it applies to you, and to us.
As members of the communities of McCormick Theological Seminary and the Lutheran School of Theology at Chicago, and so patrons of the JKM Library, you are expected to work with a lot of copyrighted material. You need to get a good idea of what you are allowed to do with it, under what terms—and what we are allowed to do with it, as we help you.
U.S. copyright law, as codified in §17 of the U.S. Code, restricts all rights over a content creator's published work to that creator. The main idea is to protect that work from being reproduced in ways that would put profit in the hands of someone other than its creator.
The law then develops limited exceptions to those restrictions. The biggest one is what is called "fair use," and as members of an academic community it is the "fair use" exception that shelters most of your work with copyrighted material.
The law then describes another limited exception that allows the JKM Library, as a library, to provide you with scans of published material for your "fair use," and also sets restrictions on our ability to do that.
The JKM Library is therefore not permitted to freely distribute copyrighted material, nor are we permitted to provide library access to licensed resources for those outside of our institutions. The same applies to McCormick Theological Seminary, the Lutheran School of Theology at Chicago, or any other institution, group, or individual subject to US law.
What is "Fair Use"?
Practically speaking, "fair use" is an argument a lawyer might be able to make on your behalf, if you were sued for copyright infringement, to justify actions that would otherwise violate copyright. "Fair use" is an affirmative defense, meaning you admit to reproducing material you do not own, and list the conditions you believe justify that in your specific case.
For a detailed example of what this means in U.S. law, see the model jury instructions on "fair use" for the U.S. Ninth Circuit.
The exact ways that "fair use" works are constantly being tested and redefined in courts, but its basic terms are codified in section 107 of title 17 of the U.S. Code:
Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—
the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
the nature of the copyrighted work;
the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
the effect of the use upon the potential market for or value of the copyrighted work.
The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.
Note that clause, "for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research," and what is known as the "four factors" test. These elements of 17 USC 107 are the key guidelines for determining whether your use of a copyrighted work may be justified as "fair use."
You can find more detail about all of this on the University of Chicago Libraries' page on copyright and "fair use."
What Does This Mean?
As employees and patrons of an academic library, as well as members of the non-profit educational institutions it serves, it means that we may potentially justify appropriate academic use (factor 1) of select portions (factor 3) of relevant works (factor 2).
However, the key aspect of "fair use" is that, because of our academic purposes, we are also presumably not doing so in order to harm the author's ability to get paid for their work otherwise (factor 4).
So it is important that, when we have the opportunity, we do in fact compensate authors for their work—as the library does on your behalf when it buys books and subscribes to database services—and that our work using it adheres to the standards of "fair use."
This is also analogous to the logic behind academic policies against plagiarism. Plagiarism is a problem of taking credit for another person's work, and it is solved by proper citation and attribution, demonstrating that you know whose work you are reproducing, and which work is actually your own.
This practice of academic citation goes a long way towards showing that your use of copyrighted material from other authors is intended to be "fair use" in your own work. Which is especially important if you intend to publish!
"Fair Use" and Library Reproduction
The fact that, as an academic library, the JKM Library is allowed to reproduce copyrighted material for you is covered by the following section 108 of title 17.
While this part of the law is much longer and more complicated, broadly speaking it explains that a library or archive, such as the JKM Library, is permitted:
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to create and distribute a copy of a relatively small portion of a work, or a larger portion if such a work is otherwise extremely difficult to obtain;
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to do so on request, for the purposes of "fair use," for an individual whose property the copy then becomes, and who is then independently liable for their own use of it;
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as long as we clearly explain both at point of request and in a warning attached to the distributed copy that it is covered by U.S. copyright law.
In compliance with 17 USC 108, the JKM Library staff are careful to stay within relatively conservative limits, and we reserve the right to refuse any request which seems to us to exceed those limits.
However, today this exception functions primarily, if not exclusively, for the non-licensed use of print materials already in the library's collections.
Licensed Electronic Resources
Electronic resources are qualitatively different from print materials. Unlike a print book, electronic resources are obtained under restrictive licensing agreements. More permissive licensing costs more money—beyond a certain point, more than a small academic library has to spend!
This means that maintaining a large portfolio of electronic resources is vastly more expensive, year after year, than a print collection which we own outright. It also means we can do fewer things with that collection than are legal with our print collections. It does, however, enable much greater remote access for our institutional patrons.
However, access to electronic resources can always be revoked, because while we pay money for them, we never own copies of them the same way we own our print books. Other limitations may also be technologically implemented, such as per-seat licensing restrictions, limited printing or export to open formats such as PDF, and time limits for borrowing. Circumvention or violation of these restrictions risks loss of access, not to mention penalties for violation of copyright law.
Electronic resources licensed by the JKM Library for the use of our patrons at McCormick and LSTC are restricted to only those individuals who currently qualify, generally by their student registration or employment status.
Individual patrons of the JKM Library remain responsible for their own "fair use" of the material in these electronic resources. However, while we attempt to buy licenses that allow as many patrons as possible to access a resource, and maintain some access for alumni, our licenses do not allow broader library reproduction of this material.
Faculty and administrators should seriously consider these issues when designing curriculum which will depend on electronic rather than print resources, especially if the model of education involved is intended to reach beyond the limits of student registration.
