Electronic reserves: copyright and permissions

Abstract

Electronic reserves present a new service option for libraries to provide needed materials during hours that the library is not open and to user groups located some distance from library collections. Possible changes to current copyright law and publishers permissions policies have delayed the development of electronic reserves in many libraries. This paper reviews the current state of electronic reserves materials in the publishing and library communities and presents the results of a survey of publishers to determine permissions policies for electronic materials. Issues of concern to both libraries and publishers are discussed.

INTRODUCTION

During the past decade, librarians have been leaders in implementing and adapting technological advances to provide enhanced services. As health sciences libraries pursue this leadership role in their institutions, electronic reserves present an opportunity to fill an important information need for clients. The growing emphasis on distance learning and community-based education programs has created user groups removed from the main library collections. These students need access to the same materials as onsite students so they will not be disenfranchised by their offsite location. Meanwhile, on campus, faculty and students have embraced the technological advances provided by libraries that allow rapid transfer to desktop of information via online catalogs and databases, and full-text information sources. Additionally, the shift in health sciences education toward problem-based curricula presents the need to provide full-text electronic information for students. This need cannot be filled entirely by recent subscriptions to electronic journals. Libraries must also provide electronic access to articles from their paper-based journal collections via reserve services.

Libraries maintain a reserve collection to provide patrons short-term loan of materials expected to be in high demand. While there have been isolated reports of electronic reserve projects in health sciences libraries [1, 2], this service has remained relatively unchanged in the past seventy-five years, in spite of the capability and affordability of 1990s technology to provide electronic reserves. Factors contributing to the slow implementation of electronic reserve services are the uncertainties associated with fair use and proposed revisions of the current copyright law and with publishers' policies related to permissions for electronic format.

This paper will explore the concerns of librarians relative to the current copyright law and report the results of a recent survey of publishers of health sciences journals regarding permission policies for electronic reserve materials.

COPYRIGHT

The library community is awaiting resolution of some of the uncertainties surrounding copyright compliance and the fair use of electronic formats. Key elements of the current debate include fair use of copyrighted works in the electronic environment for archival, preservation, and educational purposes. Librarians and the educational community support extending fair use to include electronic reserves. The publishing community is concerned about retention and multiple uses of electronic materials. Until these issues are resolved, libraries must operate under the 1976 Copyright Act.

Jensen and Seaman provide excellent reviews of copyright in the electronic environment that help clarify what is at stake [3–5]. The fair use for reproduction of materials is considered to be similar in paper-based and electronic reserves systems. In the paper reserves system, libraries depend on the fair use provision of section 107 as outlined by the American Library Association Model Policy Concerning College and University Photocopying to reproduce materials for reserve distribution [6]. In the electronic reserve system, libraries interpret this section to mean that fair use allows for a photocopy to be replaced by an electronically scanned copy.

The issues for libraries with an electronic reserves system relate to how the document is delivered. In the paper system, a copy is handed to the patron, while, in the electronic system, the copy is transmitted through a network and displayed on a terminal. Fair use is addressed by sections 110 (transmission) and 109 (display) of the Copyright Act. The legislative history indicates that libraries of nonprofit educational institutions may transmit electronic information, but display of that information is restricted to one patron at a time [7].

For libraries, one of the biggest advantages of an electronic reserves system is simultaneous access for multiple patrons. This system eliminates waiting in line at busy service desks and, more important, waiting for copies in use. Libraries can, however, avoid copyright infringement by seeking permissions for electronic reserves directly from the copyright owner or through the Copyright Clearance Center (CCC), a not-for-profit organization created at the suggestion of Congress to help organizations comply with the copyright law.

PERMISSIONS

The permissions process requires that the person or institution wishing to exceed fair use for a copyrighted work obtain permission for use of that work from the copyright holder [8]. In the case of health sciences libraries with mainly article-based reserves, the copyright holder is usually a journal publisher rather than an individual author. The copyright holder may deny the request, grant the request, or grant the request with the imposition of a fee for use.

When the 1976 Copyright Act became law, many librarians expressed concerns about compliance and, especially, the added burdens imposed by the permissions process [9]. In the years immediately following, librarians reported some problems, but, on the whole, they made a fairly smooth transition in meeting the requirements of the new law [10, 11]. Two retrospective studies in the late 1970s reported about publishers' policies regarding permissions for reserve photocopying [12, 13]. Both found that most copyright owners were lenient in granting permission for reserve use; costs of permission fees were negligible; and costs to the library to perform the clerical tasks required for compliance were considerable. Both studies doubted the ability of the newly formed CCC to adequately perform copyright clearance responsibilities. No further studies of publishers' permissions policies have been reported since the late 1970s.

SURVEY OF PUBLISHERS

An earlier pilot study reported by the author in 1998 found that a majority of publishers (7 of 12) were willing to grant permissions, with no fees, for materials placed on electronic reserves [14]. The present study was conducted among a larger group of publishers to determine their current policies related to permissions for paper and electronic reserves, to estimate the time required for publishers to respond to requests for permission, to ascertain publishers' plans for developing permissions policies for electronic reserves, and to estimate the number of permissions requests publishers receive for electronic reserves.

METHODS

Journal selection

A list of journals was compiled from titles likely to be selected by faculty for reserves services in an academic health sciences library using the following methods. The core list of journals from the Brandon/Hill list [15] was augmented with titles from the Index Medicus Subject List of Journals Indexed [16] to ensure coverage in the subject areas of nursing, dentistry, allied health, pharmacy, and graduate medical sciences. Possible titles from the Index Medicus list for inclusion in the final list were first checked in Journal Citation Reportssubject category listing (JCR) [17].

Two methods were used with the JCR subject listing. For JCR subjects containing more than fifty titles, only potential journals with an impact factor (the average frequency with which the “average article” in a journal has been cited in a particular year) of 3.0 or greater were chosen for this study. For JCR subjects containing fewer than fifty titles, usually in medical and dental subspecialties, the impact factor for all journals listed was generally below 3.0. Therefore, in those subjects with fewer than fifty titles, only potential journals found in the upper quartile of the JCR subject list were chosen for this study.

Finally, for potential nursing journals not listed in JCR, the paper-based reserves records for the past five years at the University of Illinois at Chicago Library of the Health Sciences were examined. Those nursing journals placed on reserves more than ten times in the past five years were chosen for this study. The complete list of journals included in this study may be found in Appendix A.

Questionnaire

The January 1998 issue of each journal on the list was examined to determine publisher, address for permissions requests, and policy statements for copyright, permissions, and fees. A brief questionnaire (Appendix B) was sent to the permissions department for each journal requesting information on: use of inhouse versus CCC procedures for photocopy permissions, time required to respond to these permissions requests, existing or future plans for inhouse procedures for electronic reserve requests, and estimate of the number of electronic reserves requests received during the past year. Many publishers produced more than one journal on the list and these publishers received a separate questionnaire for each title. A cover letter accompanied the questionnaire explaining that this survey of publishers sought to determine the current status of procedures for handling reserve permissions requests for materials in electronic format.

RESULTS

Journal permissions

Questionnaires were sent to permissions departments for 196 journals and 136 questionnaires were returned for a response rate of 69.38%. The combined responses from these permissions departments is shown in Table 1.

Table 1.

Journal permissions responses (N = 136)

Journal permission departments used a combination of inhouse procedures and CCC arrangements to handle permission requests for reserves. Eighty percent of respondents reported using inhouse permissions procedures for handling photocopy requests for reserves. Based on the 105 responses to the second question, 85% of respondents reported clearance arrangements with the CCC.

The majority (62.5%) of journals reported they responded to requests within less than two weeks; 14% reported a less than one-week response time; and 23.5% reported less than one month. None reported a longer than one-month turnaround time.

Thirty-six percent of respondents reported they had established inhouse procedures for handling electronic reserve permission requests; 64% of respondents reported no inhouse procedures for electronic reserve permission requests. From the latter group, 59% planned to develop procedures in the future and 41% had no plans for handling electronic permissions requests.

In response to the question regarding receipt of requests for electronic permissions, 64% of respondents reported having received such requests. The majority (52%) received fewer than 25 requests; 12% reported receiving fewer than 50 requests; 22% received fewer than 100 requests; and 14% received more than 100 requests.

In the comments included on questionnaires, eight respondents reported that they would develop policies for electronic reserve permissions if requests for these permissions increased. Three respondents stated they had no plans to develop policies for electronic reserves permissions, but, instead, would rely on site licenses for electronic journal copies.

Publishers response rate

An analysis of responses in terms of publishers is shown in Table 2. Eighty-five publishers produced the 196 journal titles in the survey. From the journal questionnaires sent to these eighty-five publishers, forty-nine responded for a response rate of 57.64%. Each of the forty-nine respondents returned all of the individual questionnaires for all of the journals they published.

Table 2.

Publisher analysis (N = 85)

Publishers are categorized by the number of their publications included in this study (column 1). A small number of publishers (3) account for a quarter of the journals in the survey, and response rate from this group was 100%. Twenty publishers account for two-thirds of the survey journals. Average response rate from publishers of more than one journal was 74.27%. The response rate from the sixty-five publishers of only one title (53.84%) was lower than response rates of publishers with more than one title.

To determine if the overall response rate was influenced by publishers from outside of the United States, this group was examined. Fifteen publishers outside the United States were included in the survey and responses were received from ten (66.66%). These fifteen publishers were responsible for forty-four titles (22.44%) in the survey.

DISCUSSION

The findings from this survey of publishers related to paper-based reserves services are similar to the reports from libraries in the 1970s. The publishing community appears not to object to paper-based reserves that follow American Library Association guidelines for photocopying [18]. Most publishers have either inhouse procedures, agreements with the CCC, or a combination of the two for handling permissions requests, and they report responding to requests within a reasonable time.

The discrepancies in the answers to questions 1 and 2 are perhaps explained by a note from one of the respondents who states that most photocopy permission requests received are from other publishers, university copy centers or book stores, and drug companies. While this publisher uses both inhouse and CCC clearance procedures, it receives very few photocopy requests for reserves materials. A follow-up survey of a larger group of publishers would provide data for determining if publishers of health sciences materials differ from other academic publishers in policies related to permissions for reserves.

The fears expressed in the 1970s that the CCC would be unable to perform copyright clearance responsibilities because of the small number of publishers registered with this service appear unfounded today.

Librarians consider reserves as a component of the services provided by libraries, regardless of format. The ambivalence of publishers' attitudes to electronic reserves is puzzling. This survey of publishers of health sciences journals illustrates that ambivalence. While eighty-seven journals have no inhouse permissions procedures for electronic materials, forty-nine do have procedures in place, and, while thirty-six have no plans for developing permissions for electronic materials, fifty-one plan to develop procedures.

More troubling are the comments of three responding journal permissions departments that they plan to rely on site licenses for electronic journals rather than permissions for electronic format, eliminating the concept of fair use of electronic materials for educational purposes. This plan illustrates an assumption by publishers that all libraries have access to and the capability to provide electronic journals and that only journals in electronic format need to be selected for electronic reserves services. Such policies jeopardize the ability of libraries to provide access via electronic reserves to older print journal articles.

Publishers may be influenced by the number of permissions requests they have received for electronic materials. Sixty-four percent of respondents report receiving such requests during the past year. Publishers are concerned about retention and multiple use of materials in electronic format. Based on past experience, these concerns may be unfounded. Libraries have made serious and continuing efforts to comply with the spirit and letter of the copyright law. A review of copyright policies from twenty-seven academic libraries in the 1980s found that these policies took the most conservative interpretation of the law, with little evidence that libraries were exercising their fair use rights to the fullest extent [19]. Publishers may take a more benign view of electronic reserves as they learn of library activities to develop policies for retaining and discarding electronic files and to develop security models allowing access for course instructors and students.

Permissions usage fees for paper-based and electronic reserves concern librarians—not only about the issue of who pays, students or the library, but also in the staff time required to monitor and report transactions. The CCC provides a fee-based electronic reserves service for institutional customers, but presently this service is not available to individual faculty members. Perhaps the existence of this service is the reason thirty-eight journals in this study report having no plans to develop electronic reserves procedures. An examination of the CCC policies for electronic reserves services provides insight into services provided for publishers and libraries. The CCC charges a $5.00 service fee to libraries for each permission request. The CCC will request permissions, and they will collect the usage fees, if any, for these permissions. Advantages for publishers are that they list their publications in one place; they interact only with the CCC; and the CCC collects fees for them. Libraries, on the other hand, must pay a service charge for each transaction in addition to any permissions fee. The CCC requires under its permission agreement that libraries include in the copyright notice on the reserve item the name of the copyright holder in whose name the CCC has granted permission as well as the course for which the material is made available. Additionally, libraries must retain the records for use of materials during the permission period for four years and be willing to make these records available for audit by the CCC upon two days' notice. Many libraries, with already burdened clerical staffs, consider these added requirements onerous and may, in the future, opt to save staff time and the service fee by requesting permissions directly from those publishers that offer inhouse permissions services.

Librarians are also concerned about the consolidation in the publishing industry with a growing number of publications under the control of fewer publishers. A very small group of large publishing houses may influence policy decisions related to copyright and fair use of electronic materials in the future. The consolidation of publishers continues at a rapid pace, with two mergers reported during the time of this survey. Only twenty publishers produce 131 journals in this survey.

In addition to changes resulting from consolidation in the publishing industry, two initiatives—one under consideration by a federal agency and the other from a coalition of library, educational, and research organizations—may induce dramatic change in the publishing environment. Librarians will continue to monitor the development of these initiatives.

The National Institutes of Health (NIH) has proposed a plan to establish an electronic publishing site called E-biomed. The objective of E-biomed will be to accelerate the dissemination of information in the biomedical sciences. Included in the plan is a proposal that copyright for reports posted in E-biomed be retained by the authors and that fair use policies be adopted by all participants. If implemented, E-biomed would provide health sciences libraries with a valuable source for electronic biomedical information.

The growth of the Scholarly Publishing and Academic Resources Coalition (SPARC) may influence the publishing environment and provide alternative sources of information for health sciences libraries. SPARC, initiated by the Association of Research Libraries (ARL), has now opened its membership to other academic and research organizations interested in creating a more diverse marketplace for scholarly communication by encouraging the development of high quality, economical journals. Its mission is to create a more competitive marketplace for research information by promoting academic values of access to information and by encouraging innovative uses of technology to improve scholarly communication [20]. SPARC has begun partnering with publishers to create less expensive alternatives to existing high price publications. SPARC can reduce the risk for their publisher partners entering the market with new, lower priced journals by providing a ready subscription base and market support.

CONCLUSION

This study has been conducted to determine publishers' policies for permissions for electronic reserves in health sciences libraries. It provides a snapshot of current policies and illustrates the issues of concern to publishers and libraries. Electronic reserves may be, as many believe, an interim technology. However, libraries will continue to investigate new or improved services for providing needed information to patrons removed from library collections. Many issues of concern will probably be addressed by new copyright legislation. Librarians should be informed about the issues of fair use, copyright, and permissions in the present environment and be aware of what is at stake in future negotiations related to electronic materials.

APPENDIX A

Journal list

Age and Ageing

AIDS*

AIDS Patient Care and STDS*

AJR: American Journal of Roentgenology*

Academic Medicine

American Family Physician*

American Heart Journal*

American Journal of Cardiology*

American Journal of Clinical Nutrition*

American Journal of Clinical Pathology*

American Journal of Critical Care

American Journal of Emergency Medicine*

American Journal of Epidemiology

American Journal of Gastroenterology

American Journal of Human Genetics*

American Journal of Kidney Diseases

American Journal of the Medical Sciences*

American Journal of Medicine*

American Journal of Nephrology

American Journal of Nursing

American Journal of Obstetrics and Gynecology*

American Journal of Ophthalmology*

American Journal of Orthodontics and Dentofacial Orthopedics

American Journal of Pathology*

American Journal of Physical Medicine & Rehabilitation*

American Journal of Physiology

American Journal of Preventive Medicine

American Journal of Psychiatry*

American Journal of Public Health*

American Journal of Respiratory and Critical Care Medicine*

American Journal of Sports Medicine*

American Journal of Surgery*

American Journal of Tropical Medicine and Hygiene*

Anaesthesia*

Anesthesiology*

Angiology*

Annals of Allergy, Asthma and Immunology*

Annals of Emergency Medicine*

Annals of Internal Medicine*

Annals of Neurology*

Annals of Surgery*

Annals of Thoracic Surgery*

Archives of Dermatology*

Archives of Environmental Health*

Archives of Family Medicine*

Archives of General Psychiatry*

Archives of Internal Medicine*

Archives of Neurology*

Archives of Ophthalmology*

Archives of Otolaryngology—Head & Neck Surgery*

Archives of Pathology and Laboratory Medicine*

Archives of Pediatrics & Adolescent Medicine*

Archives of Surgery*

Arthritis and Rheumatism*

Behavioral Neuroscience

Biochimica et Biophysica Acta

Blood*

BMJ: British Medical Journal*

Brain

Brain Research Reviews

British Journal of Obstetrics and Gynaecology*

British Journal of Radiology*

British Journal of Rheumatology*

British Journal of Surgery*

Canadian Medical Association Journal*

Cancer*

Cancer Research

Cell

Chest*

Circulation*

Circulation Research

Clinical Obstetrics and Gynecology*

Clinical Orthopaedics and Related Research*

Clinical Pediatrics*

Clinical Pharmacology & Therapeutics*

Clinics in Laboratory Medicine*

Clinics in Sports Medicine*

Controlled Clinical Trials

Critical Care Medicine*

Cutis*

Developmental Biology

Diabetes*

Diabetes Care

Digestive Diseases and Sciences*

Diseases of the Colon & Rectum*

Drug and Alcohol Dependence

Drugs

Emergency Medicine Clinics of North America*

Endocrinology*

Evidence-Based Medicine

Fertility and Sterility*

Gastroenterology*

Geriatrics*

Gerontology

Gut*

Gynecologic Oncology

Health Care Management Review*

Heart*

Heart and Lung

Hepatology

Hospital Practice*

Hospital Topics*

Hospitals and Health Networks*

Human Pathology

Immunology

Infection and Immunity

JAMA*

Journal of Acquired Immune Deficiency Syndromes and Human Retrovirology*

Journal of Allergy and Clinical Immunology*

Journal of American Academy of Dermatology*

Journal of the American College of Cardiology*

Journal of the American College of Surgeons*

Journal of the American Dental Association*

Journal of the American Dietetic Association*

Journal of the American Geriatrics Society*

Journal of Antimicrobial Chemotherapy

Journal of Biological Chemistry

Journal of Bone and Joint Surgery*

Journal of Clinical Endocrinology and Metabolism*

Journal of Clinical Investigation*

Journal of Clinical Oncology

Journal of Clinical Pathology*

Journal of Clinical Psychiatry

Journal of Dental Research

Journal of Experimental Medicine

Journal of Family Practice*

Journal of General Internal Medicine

Journal of Immunology*

Journal of Infectious Diseases*

Journal of Laboratory and Clinical Medicine*

Journal of Laryngology and Otology*

Journal of the National Cancer Institute*

Journal of Nervous and Mental Disease*

Journal of Neuroscience

Journal of Neurosurgery*

Journal of Nursing Administration

Journal of Oral and Maxillofacial Surgery*

Journal of Pediatrics*

Journal of Peridontology

Journal of Pharmacology and Experimental Therapeutics*

Journal of Rheumatology

Journal of Studies on Alcohol*

Journal of Surgical Research

Journal of Substance Abuse Treatment*

Journal of Thoracic and Cardiovascular Surgery*

Journal of Trauma*

Journal of Urology*

Journal of Vascular Surgery*

Journals of Gerontology*

Kidney International

Lancet*

Laryngoscope

Medical Clinics of North America*

Medical Decision Making

Medical Letter on Drug and Therapeutics*

Medicine*

Nature

Nature Medicine

Neurology*

Neuroscience

Neurosurgery*

New England Journal of Medicine*

Nursing Clinics of North America

Nursing Outlook

Nursing Research

Nutrition Reviews*

Obstetrics and Gynecology*

Oncogene

Ophthalmology

Oral Surgery, Oral Medicine, Oral Pathology, Oral Radiology and Endodontics*

Orthopedic Clinics of North America*

Otolaryngologic Clinics of North America*

Otolaryngology—Head and Neck Surgery*

Pediatric Clinics of North America*

Pediatric Research

Pediatrics*

Pharmacological Reviews*

Pharmacology and Therapeutics

Plastic and Reconstructive Surgery*

Postgraduate Medical Journal

Postgraduate Medicine*

Proceedings of the National Academy of Sciences of the United States of America

Progress in Cardiovascular Diseases*

Radiologic Clinics of North America*

Radiology*

Science

Seminars in Arthritis and Rheumatism

Sexually Transmitted Diseases*

Sports Medicine

Stroke

Surgery*

Surgical Clinics of North America*

Thrombosis and Haemostasis

Toxicology and Applied Pharmacology

Transplantation

Urologic Clinics of North America*

Virology

APPENDIX B

Publishers' survey

Do you have inhouse procedures for handling photocopy permissions requests from faculty or libraries to place articles on reserve for students?

——Yes ——No

If No, do you have an arrangement with the Copyright Clearance Center (CCC) to handle these permission requests?

——Yes ——No

What is your estimate of the time required to respond to permission requests?

——Less than one week ——Less than one month

——Less than two weeks ——Longer than one month

Do you have inhouse procedures for handling permission requests from faculty or libraries to place electronic copies of articles on reserve for students?

——Yes ——No

If No, do you plan to develop permission procedures for electronic copies of articles in the future?

——Yes ——No

Have you received faculty or library requests during the past year for permission to place electronic copies of articles on reserve for students?

——Yes ——No

If Yes, what is your estimate of the number of requests you have received?

——Less than 25 ——Less than 100

——Less than 50 ——More than 100

Please include comments and/or explanations here:

Thank you!