SCONUL have published a new briefing paper on the library exceptions to copyright with a very clear explanation of the exceptions which permit libraries to supply copies upon request to members of the public and to other not-for-profit libraries (broadly Sections 41 to 43 of the Copyright, Designs and Patents Act 1988). The authors of the briefing are well known copyright experts, Jane Secker and Chris Morrison and the title is Copyright briefing paper on the Hargreaves exceptions

This serves as a useful reminder of the changes to the relevant exceptions which give more flexibility to library staff. Just to mention a few examples: we can now supply extracts from e-journals as well as print, while adhering to the terms of the exceptions, the article can also be delivered electronically (as Pdfs for example). Although declarations are still required when providing copies to individuals, they no longer need to be print nor do they need to be signed. The current legislation is also less prescriptive about the wording of the declaration (the briefing includes some useful sample wording for the latter).

The 3 concise case studies included in the briefing present useful examples of ways in which the new flexibility can be used by libraries to improve services to their academic communities. The SCONUL briefing gives us a clear explanation and a useful reminder about the updated library exceptions.

Libraries are given greater flexibility by one of the less obvious changes made to the Copyright legislation earlier this year. This concerns requests for a copy of a periodical article from one library to another and is governed by Section 41 of the Act. Many of the updated exceptions include a clause stating that they cannot be over-ruled by the terms of a contract, which tends to reverse the situation prior to the 2014 changes. Section 41 of the Act  includes such a clause:

“41(5) To the extent that a term of a contract purports to prevent or restrict the doing of any act which, by virtue of this section, would not infringe copyright, that term is unenforceable.”

It follows from this that a library may now supply a single copy of a periodical article from a given issue of an “e-periodical”, just as they may supply a copy from the print publication. The terms of the contract under which the e-periodical is supplied may formerly have prevented this, but it seems they can no longer prevail over the exception.

Naturally the libraries concerned need to be sure that they are complying with the legislation, for example the library fulfilling the request must have legitimate access to the e-periodical and must not supply more than one article from a single issue. It is important to note that this “library to library” exception does not permit the supply of copies from books unless it is practically impossible to contact the copyright owner in order to seek permission.

One of the less obvious changes in the copyright exceptions introduced in June is the exception in Section 41 of the CDPA 1988 which enables us to supply another library (any library which is not conducted for profit) upon request with part or the whole of a published work, without infringing copyright.  

The main condition is that the librarian does not know and could not reasonably find out the name and address of the person able to give copyright permission.

Of course this condition would rule out supplying a copy of most recently published works under this exception, as there would be little difficulty in finding out whom to contact for permission.

However journal articles are treated as a special case by Section 41 and are not subject to that condition. If we receive a request from another library for a copy of one article from a journal then we are able to supply that copy without applying that test or requesting permission from the publisher. We may choose to charge for this service or not, but if we do the amount must be calculated by reference to the costs incurred in making the copy.

When you add to this the fact that Section 41 covers copyright works in any format then it follows that we could supply a single article from an e-journal which we subscribe to. As with many of the new exceptions, this cannot be over-ridden by the terms of our licence with the supplier so we would not need to refer to the licence before providing a copy.