Academic, school, and public libraries face increasing demand to participate in document delivery activities. Some libraries regularly deliver photocopies of copyrighted works to their users upon demand. Others provide coin-operated self-service photocopiers for users who wish to reproduce a single copy of an article, a poem, or a chapter of a book. Because of decreasing funding for nonprofit libraries, some institutions have begun to consider creating profit-making document delivery centers within the library in order to generate income that can be used to support library collections and services.
The decisions a library makes about how it will provide copies to users or if it will establish a document delivery service have significant copyright implications, and library managers must be aware of these issues in order to guide decision making in this area.
To avoid the complicated question of whether a library in the for-profit sector may provide copies to users without paying royalties, this article focuses on document delivery in nonprofit libraries.(1)
Just What is 'Document Delivery?'
"Document delivery" is a term that may have several meanings. It can mean the delivery of books and articles to a user upon request, or it can be used to mean providing photocopies or electronic copies of copyrighted books and articles to a user upon request. It could even mean the library's response to a request from a user to "send me everything you have" on a particular subject. For purposes of this article, "document delivery" means the satisfaction of a user request via the provision of photocopies or electronic copies of copyrighted articles and other materials as opposed to forwarding the original book or journal issue to the user. Even this narrower definition of document delivery of reproduced copies of portions of copyrighted works can denote three separate activities by libraries.
1. Reproducing copies of a work and providing them to a user from his primary library upon request is beginning to be referred to in the library community as document delivery -- for example, supplying photocopies to faculty members from the university library's own collection.
2. Obtaining photocopies of articles through interlibrary loan and distributing them to users are sometimes included in the definition of document delivery.
3. True document delivery is defined as the providing of photocopies or electronic copies to external constituencies either on a cost-recovery or a profit-making basis. The latter, that is, document delivery on a profit-making basis, is the equivalent of commercial document delivery.
Virtually all libraries participate in the first two activities although some libraries may ask most or all of their users to do their own copying rather than providing photocopies for the user. Many libraries either have moved into true document delivery or are considering doing so in the near future.
Section 101 of the Copyright Revision Act of 1976 defines "copies" as "material objects, other than phonorecords, in which a work is fixed by any method now known or later developed, and from which the work can be perceived, reproduced, or otherwise communicated either directly or with the aid of a machine or device."
The library section of the act, Section 108, refers to copies and phonorecords reproduced and distributed by a library or archives. Subsections (b) and (c), the two instances in which a library is permitted to copy for itself, either to preserve an unpublished work or to replace a published lost, damaged, stolen, or deteriorating work, use the words "in facsimile form." The dictionary's definition of facsimile is "an exact copy."
Arguably, "facsimile" means only a photocopy or a microform copy, but with new imaging technology, an electronic image is an exact copy, a facsimile. Assuming for the moment that subsections (b) and (c) are limited to the narrow definition of facsimile, the remainder of Section 108 is not so restricted. …