Difference between revisions of "Permissions"

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LINDA SANDFORD, ALABAMA
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Considering the amount of paperwork, staff time, and resulting fee revenues involved, few scholarly publishers would regard permission requests as a cost-effective source of income. Rather, processing permission requests is a means to an end. It serves the important function of encouraging the dissemination of knowledge while protecting the interests and rights of scholars, authors, and publishers.
 
Considering the amount of paperwork, staff time, and resulting fee revenues involved, few scholarly publishers would regard permission requests as a cost-effective source of income. Rather, processing permission requests is a means to an end. It serves the important function of encouraging the dissemination of knowledge while protecting the interests and rights of scholars, authors, and publishers.
  
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Legislators attempted to reach a balance between owners' rights and users' needs by including Section 107, the first legal statement of fair use doctrine, in the 1976 copyright law. The section considers "purposes such as criticism, comment, news reporting, teaching, scholarship, or research" and identifies four factors to be considered in determining whether the use made of a work in any particular case is fair use:
 
Legislators attempted to reach a balance between owners' rights and users' needs by including Section 107, the first legal statement of fair use doctrine, in the 1976 copyright law. The section considers "purposes such as criticism, comment, news reporting, teaching, scholarship, or research" and identifies four factors to be considered in determining whether the use made of a work in any particular case is fair use:
  
1. The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
 
  
2. The nature of the copyrighted work;
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(1) The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
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(2) The nature of the copyrighted work;
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(3) The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
  
3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
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(4) The effect of the use upon the potential for or value of the copyrighted work.2
  
4. The effect of the use upon the potential for or value of the copyrighted work.2
 
  
  
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Since the Kinko's decision, many publishers find that requests for inclusion of their material in course packs have substantially increased, and numerous firms are competing to handle the clearance of permissions for such use for publishers. These firms deduct a commission on the fees collected from customers. If the publisher believes the requested use does not fall under fair use, what factors affect whether and how large a fee should be charged, or whether the request should be denied? There is no universal yardstick in use to determine whether a fee is waived or charged, and any discussion of permissions fees charged among various presses would be prohibited under federal laws that prohibit discriminatory pricing practices and under federal antitrust laws, as are discussions of discount policies. Most publishers have a "standard" individualized fee that they charge for what they consider "routine" use that falls outside fair use. Other factors that are or might be taken into account by the publisher when responding to a request are:
 
Since the Kinko's decision, many publishers find that requests for inclusion of their material in course packs have substantially increased, and numerous firms are competing to handle the clearance of permissions for such use for publishers. These firms deduct a commission on the fees collected from customers. If the publisher believes the requested use does not fall under fair use, what factors affect whether and how large a fee should be charged, or whether the request should be denied? There is no universal yardstick in use to determine whether a fee is waived or charged, and any discussion of permissions fees charged among various presses would be prohibited under federal laws that prohibit discriminatory pricing practices and under federal antitrust laws, as are discussions of discount policies. Most publishers have a "standard" individualized fee that they charge for what they consider "routine" use that falls outside fair use. Other factors that are or might be taken into account by the publisher when responding to a request are:
  
1. The nature of the use, including whether it is commercial or scholarly. If, for example, the request is for the use of an illustration, will it be used on the cover or jacket, or inside the book? The fee would be more for a jacket or cover illustration.
 
  
2. The amount of material. Most publishers will not agree to the use of more than 10 percent of a work, except in special circumstances (for example, if the book is out of print). (It is important to be aware when responding to permission requests for course packs that sometimes multiple requests are inadvertently submitted for the same course to photocopy pieces from a single publication that may well exceed 10 percent of that publication when taken as a whole.)
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(1) The nature of the use, including whether it is commercial or scholarly. If, for example, the request is for the use of an illustration, will it be used on the cover or jacket, or inside the book? The fee would be more for a jacket or cover illustration.
  
3. The ratio of the number of pages to be used from the publisher's work to the number of pages of the proposed publication.
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(2) The amount of material. Most publishers will not agree to the use of more than 10 percent of a work, except in special circumstances (for example, if the book is out of print). (It is important to be aware when responding to permission requests for course packs that sometimes multiple requests are inadvertently submitted for the same course to photocopy pieces from a single publication that may well exceed 10 percent of that publication when taken as a whole.)
  
4. The size of the print run of the publication the material will be used in.
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(3) The ratio of the number of pages to be used from the publisher's work to the number of pages of the proposed publication.
  
5. The price of the proposed publication.
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(4) The size of the print run of the publication the material will be used in.
  
6. The effect of the requested use on the market of the publisher's work. Sometimes in instances where a fee might normally be charged by a publisher, the fee is waived if the person making the request agrees to include in the reproduction the name and price of the publisher's book and ordering information.
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(5) The price of the proposed publication.
  
7. The prominence of the author or book.
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(6) The effect of the requested use on the market of the publisher's work. Sometimes in instances where a fee might normally be charged by a publisher, the fee is waived if the person making the request agrees to include in the reproduction the name and price of the publisher's book and ordering information.
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(7) The prominence of the author or book.
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(8) Contractual agreements with the author permitting liberal without-fee use if the purpose is for research or scholarship.
  
8. Contractual agreements with the author permitting liberal without-fee use if the purpose is for research or scholarship.
 
  
 
As late as 1981-1982, the AAUP Directory carried a "Resolution on Permissions" signed by 56 member presses affirming their belief that "it is in the interest of publishers and scholars alike to facilitate and spread the use and to increase the value of all scholarly publications by allowing scholars to quote without prior permission from published sources whatever they legitimately need to make their scholarly writings complete, accurate, and authenticated." They further agreed that publications issued under their imprints may be quoted without specific prior permission in works of original scholarship for accurate citation of authority or for criticism, review, or evaluation, subject to the conditions listed below:
 
As late as 1981-1982, the AAUP Directory carried a "Resolution on Permissions" signed by 56 member presses affirming their belief that "it is in the interest of publishers and scholars alike to facilitate and spread the use and to increase the value of all scholarly publications by allowing scholars to quote without prior permission from published sources whatever they legitimately need to make their scholarly writings complete, accurate, and authenticated." They further agreed that publications issued under their imprints may be quoted without specific prior permission in works of original scholarship for accurate citation of authority or for criticism, review, or evaluation, subject to the conditions listed below:
  
1. Appropriate credit must be given in the case of each quotation.
 
  
2. Waiver of the requirement for specific permission does not extend to quotations that were complete units in themselves (as poems, letters, short stories, essays, journal articles, complete chapters or sections from books, maps, charts, graphs, tables, drawings, or other illustrative materials), in whatever form they may be reproduced; nor would the waiver extend to quotations of whatever length presented as primary material for its own sake (as in anthologies or books of readings). The fact that specific permission for quoting of material may be waived under this agreement did not relieve the quoting author and publisher from the responsibility of determining "fair use" of such material.7
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(1) Appropriate credit must be given in the case of each quotation.
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(2) Waiver of the requirement for specific permission does not extend to quotations that were complete units in themselves (as poems, letters, short stories, essays, journal articles, complete chapters or sections from books, maps, charts, graphs, tables, drawings, or other illustrative materials), in whatever form they may be reproduced; nor would the waiver extend to quotations of whatever length presented as primary material for its own sake (as in anthologies or books of readings). The fact that specific permission for quoting of material may be waived under this agreement did not relieve the quoting author and publisher from the responsibility of determining "fair use" of such material.7
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If a fee is charged, how is it tracked and collected? Some publishers set the fee up as a receivable. A number choose to file a copy of the response in a pending file and review the file periodically--for example, every three to six months. Most fees are payable upon publication or use. A follow-up notice is sent when the intended use date (projected publication or term for educational use) falls within the review period. When the permission payment arrives, the press's portion is recorded as permission income. The amount due the author is set up as a payable and is paid either when the permission payment is received or, more commonly, when royalties are paid, to reduce the amount of paperwork. If the material is not used, the publisher is notified, and the response is pulled from the publisher's pending file.
 
If a fee is charged, how is it tracked and collected? Some publishers set the fee up as a receivable. A number choose to file a copy of the response in a pending file and review the file periodically--for example, every three to six months. Most fees are payable upon publication or use. A follow-up notice is sent when the intended use date (projected publication or term for educational use) falls within the review period. When the permission payment arrives, the press's portion is recorded as permission income. The amount due the author is set up as a payable and is paid either when the permission payment is received or, more commonly, when royalties are paid, to reduce the amount of paperwork. If the material is not used, the publisher is notified, and the response is pulled from the publisher's pending file.
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Rather than becoming less time-consuming, processing permission requests promises to become more complex and challenging as publishers con tend with the impact of the new technology. It is important, however, for publishers to keep pace with the changes in order to maintain the balance between the free flow of ideas and information and the proprietary interests of their authors.
 
Rather than becoming less time-consuming, processing permission requests promises to become more complex and challenging as publishers con tend with the impact of the new technology. It is important, however, for publishers to keep pace with the changes in order to maintain the balance between the free flow of ideas and information and the proprietary interests of their authors.
  
Notes
 
  
1. Horowitz, Irving Louis, and Mary E. Curtis, "Fair Use versus Fair Return: Copyright Legislation and Its Con sequences," Journal of the American Society for Information Science (March 1984). Copyright 1984 John Wiley & Sons.
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'''Notes'''
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1. Horowitz, Irving Louis, and Mary E. Curtis, "Fair Use versus Fair Return: Copyright Legislation and Its Consequences," Journal of the American Society for Information Science (March 1984). Copyright 1984 John Wiley & Sons.
  
 
2. Copyright Act of 1976, Public Law 94-553, Title 17, United States Code.
 
2. Copyright Act of 1976, Public Law 94-553, Title 17, United States Code.
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'''Appendix A'''
  
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''Agreement on Guidelines for Classroom Copying in Not-for-Profit Educational Institutions (Educational and CONTU Guidelines) With Respect to Books and Periodicals''
  
Appendix A
 
 
Agreement on Guidelines for Classroom Copying
 
in Not-for-Profit Educational Institutions
 
("Educational and CONTU Guidelines")
 
With Respect to Books and Periodicals
 
 
(included in House Report 94-1476)  
 
(included in House Report 94-1476)  
  
The purpose of the following guidelines is to state the minimum standards of educational fair use under Section 107 of H.R. 2223. The parties agree that the conditions determining the extent of permissible copying for educational purposes may change in the future; that certain types of copying permitted under these guidelines may not be permissible in the future; and conversely that in the future other types of copying not permitted under these guidelines may be permissible under revised guidelines. Moreover, the following statement of guide lines is not intended to limit the types of copying permitted under the standards of fair use under judicial decision and which are stated in Section 107 of the Copyright Revision Bill. There may be instances in which copying which does not fall within the guidelines stated below may nonetheless be permitted under the criteria of fair use.
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The purpose of the following guidelines is to state the minimum standards of educational fair use under Section 107 of H.R. 2223. The parties agree that the conditions determining the extent of permissible copying for educational purposes may change in the future; that certain types of copying permitted under these guidelines may not be permissible in the future; and conversely that in the future other types of copying not permitted under these guidelines may be permissible under revised guidelines. Moreover, the following statement of guidelines is not intended to limit the types of copying permitted under the standards of fair use under judicial decision and which are stated in Section 107 of the Copyright Revision Bill. There may be instances in which copying which does not fall within the guidelines stated below may nonetheless be permitted under the criteria of fair use.
  
Guidelines
 
  
I. Single Copying for Teachers A single copy may be made of any of the following by or for a teacher at his or her individual request for his or her scholarly research or use in teaching or preparation to teach a class:
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''Guidelines''
  
A. A chapter from a book;
 
B. An article from a periodical or news paper;
 
C. A short story, short essay or short poem, whether or not from a collective work;
 
D. A chart, graph, diagram, drawing, cartoon or picture from a book, periodical, or newspaper;
 
  
II. Multiple Copies for Classroom Use
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(I) '''Single Copying for Teachers:''' A single copy may be made of any of the following by or for a teacher at his or her individual request for his or her scholarly research or use in teaching or preparation to teach a class:
  
Multiple copies (not to exceed in any event more than one copy per pupil in a course) may be made by or for the teacher giving the course for classroom use or discussion; provided that:
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(A) A chapter from a book;
  
A. The copying meets the test of brevity and spontaneity as defined below; and,
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(B) An article from a periodical or news paper;  
B. Meets the cumulative effect test as defined below; and,
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C. Each copy includes a notice of copy right.
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(C) A short story, short essay or short poem, whether or not from a collective work;
  
Definitions
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(D) A chart, graph, diagram, drawing, cartoon or picture from a book, periodical, or newspaper;
  
Brevity
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(II) '''Multiple Copies for Classroom Use:''' Multiple copies (not to exceed in any event more than one copy per pupil in a course) may be made by or for the teacher giving the course for classroom use or discussion; provided that:
  
(i) Poetry: (a) A complete poem if less than 250 words and if printed on not more than two pages or, (b) from a longer poem, an excerpt of not more than 250 words. (ii) Prose: (a) Either a complete article, story or essay of less than 2,500 words, or (b) an excerpt from any prose work of not more than 1,000 words or 10% of the work, whichever is less, but in any event a minimum of 500 words. [Each of the numerical limits stated in "i" and "ii" above may be expanded to permit the completion of an unfinished line of a poem or of an unfinished prose paragraph.] (iii) Illustration: One chart, graph, diagram, drawing, cartoon, or picture per book or per periodical issue.
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(A) The copying meets the test of brevity and spontaneity as defined below; and,  
  
(iv) "Special" works: Certain works in poetry, prose, or in "poetic prose" which often combine language with illustrations and which are intended sometimes for children and at other times for a more general audience fall short of 2,500 words in their entirety. Paragraph "ii" above notwithstanding such "special works" may not be reproduced in their entirety; however, an excerpt comprising not more than two of the published pages of such special work and containing not more than 10% of the words found in the text thereof, may be reproduced.
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(B) Meets the cumulative effect test as defined below; and,  
  
Spontaneity
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(C) Each copy includes a notice of copyright.
  
(i) The copying is at the instance and inspiration of the individual teacher, and
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(III) '''Prohibitions as to (I) and (II):''' Notwithstanding any of the above, the following shall be prohibited:
  
(ii) The inspiration and decision to use the work and the moment of its use for maximum teaching effectiveness are so close in time that it would be unreason able to expect a timely reply to a request for permission.  
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(A) Copying shall not be used to create or replace or substitute for anthologies, compilations or collective works. Such replacement or substitution may occur whether copies of various works or excerpts therefrom are accumulated or produced and used separately.
  
Cumulative Effect
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(B) There shall be no copying of or from works intended to be "consumable" in the course of study or of teaching. These include workbooks, exercises, standardized tests and test booklets and answer sheets and like consumable material.
  
(i) The copying of the material is for only one course in the school in which the copies are made.
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(C) Copying shall not:
  
(ii) Not more than one short poem, article, story, essay, or two excerpts may be copied from the same author, not more than three from the same collective work or periodical volume during one class term.
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a. substitute for the purchase of books, publishers' reprints or periodicals;
  
(iii) There shall not be more than nine in stances of such multiple copying for one course during one class term. [The limitations stated in "ii" and "iii" above shall not apply to current news periodicals and newspapers and current news sections of other periodicals.]
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b. be directed by higher authority;
  
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c. be repeated with respect to the same item by the same teacher from term to term.
  
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(D) No charge shall be made to the student beyond the actual cost of the photocopying.
  
  
III. Prohibitions as to I and II Above
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''Definitions''
  
Notwithstanding any of the above, the following shall be prohibited:
 
  
(A) Copying shall not be used to create or replace or substitute for anthologies, compilations or collective works. Such replacement or substitution may occur whether copies of various works or excerpts therefrom are accumulated or produced and used separately.
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BREVITY
  
(B) There shall be no copying of or from works intended to be "consumable" in the course of study or of teaching. These include workbooks, exercises, standardized tests and test booklets and answer sheets and like consumable material.
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(I) Poetry: (A) A complete poem if less than 250 words and if printed on not more than two pages or, (B) from a longer poem, an excerpt of not more than 250 words.  
  
(C) Copying shall not:
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(II) Prose: (A) Either a complete article, story or essay of less than 2,500 words, or (B) an excerpt from any prose work of not more than 1,000 words or 10% of the work, whichever is less, but in any event a minimum of 500 words. [Each of the numerical limits stated in (I) and (II) above may be expanded to permit the completion of an unfinished line of a poem or of an unfinished prose paragraph.]
  
(a) substitute for the purchase of books, publishers' reprints or periodicals;
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(III) Illustration: One chart, graph, diagram, drawing, cartoon, or picture per book or per periodical issue.
  
(b) be directed by higher authority;  
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(IV) "Special" works: Certain works in poetry, prose, or in "poetic prose" which often combine language with illustrations and which are intended sometimes for children and at other times for a more general audience fall short of 2,500 words in their entirety. Paragraph (II) above notwithstanding such "special works" may not be reproduced in their entirety; however, an excerpt comprising not more than two of the published pages of such special work and containing not more than 10% of the words found in the text thereof, may be reproduced.
  
(c) be repeated with respect to the same item by the same teacher from term to term.
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SPONTANEITY
  
(D) No charge shall be made to the student beyond the actual cost of the photocopying.
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(I) The copying is at the instance and inspiration of the individual teacher, and
  
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(II) The inspiration and decision to use the work and the moment of its use for maximum teaching effectiveness are so close in time that it would be unreason able to expect a timely reply to a request for permission.
  
Appendix B
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CUMULATIVE EFFECT
  
Draft: 1/22/91
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(I) The copying of the material is for only one course in the school in which the copies are made.
  
Discussion Draft for the AAP Electronic Information
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(II) Not more than one short poem, article, story, essay, or two excerpts may be copied from the same author, not more than three from the same collective work or periodical volume during one class term.
Committee and the AAP Rights & Permissions Advisory Committee
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Rights and Permission Issues Arising from the
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(III) There shall not be more than nine in stances of such multiple copying for one course during one class term. [The limitations stated in "ii" and "iii" above shall not apply to current news periodicals and newspapers and current news sections of other periodicals.]
Electronic Reuse of Copyrighted Material
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This document discusses issues of interest to publishers in the context of the electronic reuse of copyrighted material. It is intended for both rights and permissions personnel and general business people at publishing houses that own copyright to their published works and that have rights and permissions policies for their printed works. A publisher may or may not itself publish materials in electronic form; in any case, a publisher may grant permission for its materials to be used electronically by others, either by downloading the materials already in electronic form into a computer or by scanning (or otherwise inputting) the hard copy form of the materials into electronic form. Most of these uses require a grant of rights or permission, and potential reusers should approach publishers for such rights or permission. For the purposes of this document, the term "reuse" of materials will mean a reuser's electronic activities with a publisher's materials. As technology progresses at ever-increasing speed, the varieties of such reuse are virtually limitless. Publishers will constantly be presented with requests from potential reusers for permission for new and different reuses. A publisher's policy for dealing with such requests must necessarily be flexible. The following outline is intended by AAP to assist a publisher in formulating its own permissions policy by exploring some of the many issues that commonly arise in the context of requests for electronic reuse and by suggesting ways in which a publisher may choose to approach such requests. This document is by no means an exhaustive description of all the issues that may arise in connection with such a project, but is meant only to discuss certain fundamental matters relating to electronic reuse.
 
  
1. Corporate Structure. The rights and permissions policy of your company with respect to electronic reuse programs should be discussed with and agreed upon by appropriate personnel. These may include the company Copyright Manager, the Director of Publications, an attorney knowledgeable in copyright, and/or the CEO. If possible, a policy should be set on a company-wide basis. Whatever the technical provisions of a proposed electronic reuse project, the business implications of such a proposal are probably of paramount importance to the publisher. Because this area is rapidly changing and your company's experience may be handled by a large number of people in different departments-- permissions, legal, editorial, financial, as well as "new technology" personnel--it is probably advisable for the responsible personnel to review the company's guidelines at regular intervals. In addition, it is possible that many companies that grant permissions will themselves be seeking rights to electronic reuse in other contexts; the advice of those personnel who function as "buyers" may be helpful in determining the company's policies as a "seller."
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'''Appendix B'''
  
2. Grant of Rights. The same general rights and permissions policies for printed works may be applied to the electronic reuse of your materials; however, certain types of electronic reuse may conflict with your own actual or contemplated (printed) publications activities. Requests for particular reuses should be considered in light of your overall plans for the requested materials. Certain categories of electronic reuse may be unacceptable to you as a matter of policy, while others may be permissible subject to agreed-upon limitations. The end-product of the proposed electronic reuse (for example, the contemplated end result may be a printed book or may be the inclusion of your company's material in data to be carried over an electronic network) should at all times be considered when the request for permission is balanced against your overall plans for the relevant materials. Similarly, a factor to be considered is whether the reuse would result in the creation of a new derivative of the original work, and the implications of such a derivative on the original work. The electronic reuses to be permitted by the proposed project, as well as the specific works to be covered by the proposed project, should be clearly understood by both parties, and should generally be set forth in writing. This writing should resolve such issues as the technology to be used, the publisher's materials desired by the reuser (including whether a publisher's material is to be used in combination with materials from other publishers and similar issues, and whether the publisher's deliverables are to be in print, disk, tape or other form), the duration of the permitted reuse, geographic limitations (if any), reuser deliverables (including any manuals and other documentation, as well as reports and samples as described in paragraph 8 below), whether resale is to be permitted, and whether the reuse will be restricted by location, personnel, passwords or other means. All these issues should be explored with the particular reuser, in order to determine its needs and capabilities and assess those in light of the publisher's own needs and capabilities (and any limitations on the scope of the rights actually owned by the publisher).
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Draft: 1/22/91
  
3. Credit. In order to protect your legal rights and those of any other relevant copyright owner, a credit identifying the owner and you as the licensor should be incorporated into the electronic reuse project. The form in which this credit is displayed may be a function in some cases of the technical sophistication of the reuser's system, and in others may be a more cosmetic issue (as, for example, where a reuser wishes to minimize the repetition or prominence of the notice). Current technology may (or, for a given reuser, may not) permit inclusion of the credit on separate copyright screens, in reuser manuals, on disc labels and packaging, on hard-copy print-outs, and/or on each screen and/or page that features a given material, among other options. A related issue is that of notices, including notices, under the copyright laws and/or applicable disclaimers, if any. As with credits, the form, frequency, wording and specific nature of the notices used may in some cases be a function of the reuser's technology and in others may be a matter for negotiation.
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Discussion Draft for the AAP Electronic Information Committee and the AAP Rights & Permissions Advisory Committee
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''Rights and Permission Issues Arising from the Electronic Reuse of Copyrighted Material''
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This document discusses issues of interest to publishers in the context of the electronic reuse of copyrighted material. It is intended for both rights and permissions personnel and general business people at publishing houses that own copyright to their published works and that have rights and permissions policies for their printed works. A publisher may or may not itself publish materials in electronic form; in any case, a publisher may grant permission for its materials to be used electronically by others, either by downloading the materials already in electronic form into a computer or by scanning (or otherwise inputting) the hard copy form of the materials into electronic form. Most of these uses require a grant of rights or permission, and potential reusers should approach publishers for such rights or permission. For the purposes of this document, the term "reuse" of materials will mean a reuser's electronic activities with a publisher's materials. As technology progresses at ever-increasing speed, the varieties of such reuse are virtually limitless. Publishers will constantly be presented with requests from potential reusers for permission for new and different reuses. A publisher's policy for dealing with such requests must necessarily be flexible. The following outline is intended by AAP to assist a publisher in formulating its own permissions policy by exploring some of the many issues that commonly arise in the context of requests for electronic reuse and by suggesting ways in which a publisher may choose to approach such requests. This document is by no means an exhaustive description of all the issues that may arise in connection with such a project, but is meant only to discuss certain fundamental matters relating to electronic reuse.
  
4. Trial Periods. In some cases you and the reuser may consider an arrangement under which licensing rights or permissions are at first granted for a limited, trial period. Note, though, that for some reusers, the bulk of expenses may occur at the outset of a licensing project; for that reason, the length of the trial period and the financial consideration for such period may have to be negotiated between you and the reuser. At the same time, since the relative ease of electronic entry and downloading could make the retracing of the reuser's acts after the trial period rather difficult, it may be advisable to describe the rights of the par ties during the trial period at a level of detail similar to that used in describing rights during a formal contract period. Another factor that may figure into the calculations relating to such a trial period is whether the reuser is attempting a project involving more than one publisher, to commence on a single start date. Finally, an agreement that provides for trial periods should specify what will happen at the end of the period: possibilities include providing that the project may terminate unless extended by the parties, or that it may continue unless otherwise terminated, or that the parties will discuss continuance in good faith at such time. The publisher may want to provide in detail what is to happen at the end of a trial period (as well as at the end of a regular contract term): for example, what needs to be destroyed (or certified as destroyed) or redelivered.  
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'''(1) Corporate Structure.''' The rights and permissions policy of your company with respect to electronic reuse programs should be discussed with and agreed upon by appropriate personnel. These may include the company Copyright Manager, the Director of Publications, an attorney knowledgeable in copyright, and/or the CEO. If possible, a policy should be set on a company-wide basis. Whatever the technical provisions of a proposed electronic reuse project, the business implications of such a proposal are probably of paramount importance to the publisher. Because this area is rapidly changing and your company's experience may be handled by a large number of people in different departments-- permissions, legal, editorial, financial, as well as "new technology" personnel--it is probably advisable for the responsible personnel to review the company's guidelines at regular intervals. In addition, it is possible that many companies that grant permissions will themselves be seeking rights to electronic reuse in other contexts; the advice of those personnel who function as "buyers" may be helpful in determining the company's policies as a "seller."
  
5. Exclusivity. A publisher should evaluate whether a grant for electronic reuse should be exclusive. Among the factors to be considered before granting exclusive rights are the specific reuses that are being licensed, the geographic territory of the license, the likelihood of other reusers wanting those or similar rights, the term of the grant, and the licensing fees or royalties that are to be received under the project.
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'''(2) Grant of Rights.''' The same general rights and permissions policies for printed works may be applied to the electronic reuse of your materials; however, certain types of electronic reuse may conflict with your own actual or contemplated (printed) publications activities. Requests for particular reuses should be considered in light of your overall plans for the requested materials. Certain categories of electronic reuse may be unacceptable to you as a matter of policy, while others may be permissible subject to agreed-upon limitations. The end-product of the proposed electronic reuse (for example, the contemplated end result may be a printed book or may be the inclusion of your company's material in data to be carried over an electronic network) should at all times be considered when the request for permission is balanced against your overall plans for the relevant materials. Similarly, a factor to be considered is whether the reuse would result in the creation of a new derivative of the original work, and the implications of such a derivative on the original work. The electronic reuses to be permitted by the proposed project, as well as the specific works to be covered by the proposed project, should be clearly understood by both parties, and should generally be set forth in writing. This writing should resolve such issues as the technology to be used, the publisher's materials desired by the reuser (including whether a publisher's material is to be used in combination with materials from other publishers and similar issues, and whether the publisher's deliverables are to be in print, disk, tape or other form), the duration of the permitted reuse, geographic limitations (if any), reuser deliverables (including any manuals and other documentation, as well as reports and samples as described in paragraph 8 below), whether resale is to be permitted, and whether the reuse will be restricted by location, personnel, passwords or other means. All these issues should be explored with the particular reuser, in order to determine its needs and capabilities and assess those in light of the publisher's own needs and capabilities (and any limitations on the scope of the rights actually owned by the publisher).
  
6. Writing. In the interests of clarity and the avoidance of future disputes, you may wish to avoid granting verbal rights or permission; as a matter of general policy, it is thus highly advisable where possible to require that all rights and permission requests be submitted in writing and to grant requests only in writing. Such writing should clearly and precisely describe the specific rights being granted and works to which it applies (or, if appropriate, that a blanket license is intended as to all works or all forms of electronic use and reproduction).
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'''(3) Credit.''' In order to protect your legal rights and those of any other relevant copyright owner, a credit identifying the owner and you as the licensor should be incorporated into the electronic reuse project. The form in which this credit is displayed may be a function in some cases of the technical sophistication of the reuser's system, and in others may be a more cosmetic issue (as, for example, where a reuser wishes to minimize the repetition or prominence of the notice). Current technology may (or, for a given reuser, may not) permit inclusion of the credit on separate copyright screens, in reuser manuals, on disc labels and packaging, on hard-copy print-outs, and/or on each screen and/or page that features a given material, among other options. A related issue is that of notices, including notices, under the copyright laws and/or applicable disclaimers, if any. As with credits, the form, frequency, wording and specific nature of the notices used may in some cases be a function of the reuser's technology and in others may be a matter for negotiation.
  
7. Flexibility. Each proposed electronic project will have its own structure and terms. Such differences should be factored into your consideration of each given project. Among the factors that may differ among projects are: the number of locations within a company or institution at which the project may be accessed; possible access to the project from locations outside the company's or institution's facilities (for example, at homes of participating employees or other consumers); delivery of the project through discs, CD-ROM, net works, on-line access or document delivery; the assignment of passwords to designated employees and other consumers and limits (if any) on terminals where such passwords may be used; limitations (if any) on the number of employees or other consumers and/or permitted hard-copies; types of contemplated reuse of materials by employees or consumers. There are many other possible variations.
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'''(4) Trial Periods.''' In some cases you and the reuser may consider an arrangement under which licensing rights or permissions are at first granted for a limited, trial period. Note, though, that for some reusers, the bulk of expenses may occur at the outset of a licensing project; for that reason, the length of the trial period and the financial consideration for such period may have to be negotiated between you and the reuser. At the same time, since the relative ease of electronic entry and downloading could make the retracing of the reuser's acts after the trial period rather difficult, it may be advisable to describe the rights of the par ties during the trial period at a level of detail similar to that used in describing rights during a formal contract period. Another factor that may figure into the calculations relating to such a trial period is whether the reuser is attempting a project involving more than one publisher, to commence on a single start date. Finally, an agreement that provides for trial periods should specify what will happen at the end of the period: possibilities include providing that the project may terminate unless extended by the parties, or that it may continue unless otherwise terminated, or that the parties will discuss continuance in good faith at such time. The publisher may want to provide in detail what is to happen at the end of a trial period (as well as at the end of a regular contract term): for example, what needs to be destroyed (or certified as destroyed) or redelivered.  
  
8. Reports and Samples. Electronic reuse projects are relatively new, and you may wish, for your use in evaluating future projects, to receive certain information relating to your participation in the proposed project. Such information may well be of importance to you in formulating your policy as to such projects, and even in determining whether you desire to remain involved in a particular project; thus, some publishers have even chosen to make the receipt of such information throughout a project a condition of their continued participation. This information may include reports of usage in terms of time or number of materials viewed, in terms of data relating to volume of use, employee, consumer, location and/or material, and/or in terms of copies made. In addition or alternatively, due to the experimental nature of such projects, you may wish information on the reuser's electronic conversion and transmittal and samples of the licensed material as it is used in the project. Technological limitations and expense may limit the extent to which a reuser will readily agree to supply such information.
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'''(5) Exclusivity.''' A publisher should evaluate whether a grant for electronic reuse should be exclusive. Among the factors to be considered before granting exclusive rights are the specific reuses that are being licensed, the geographic territory of the license, the likelihood of other reusers wanting those or similar rights, the term of the grant, and the licensing fees or royalties that are to be received under the project.
  
9. Fees. The amount and structure of fees or royalties, if any, is a matter that you must deter mine on the basis of the particular electronic project being proposed to you. Options include, among many others, a one-time fee, a fee based on usage, or a periodic fee. Because the amount of use a given program may receive is often a matter of conjecture at this point, both you and the reuser, for different reasons, may resist a usage-based fee. Note that the subject of fees will, by its nature, be codependent on the other terms of the proposed project (for example, in a project featuring a short trial period, both sides may be more likely to accept a more experimental fee structure during that period).
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'''(6) Writing.''' In the interests of clarity and the avoidance of future disputes, you may wish to avoid granting verbal rights or permission; as a matter of general policy, it is thus highly advisable where possible to require that all rights and permission requests be submitted in writing and to grant requests only in writing. Such writing should clearly and precisely describe the specific rights being granted and works to which it applies (or, if appropriate, that a blanket license is intended as to all works or all forms of electronic use and reproduction).
  
10. Warranties. It is not currently clear whether a license of published works for electronic reuse constitutes a sale of goods under law. In the absence of a clear standard, a publisher wishing not to give the reuser any express or implied warranties (for example, of merchantability or fitness for a particular purpose) may wish to specifically disclaim those in writing. In addition, a reuser may seek warranties regarding the publisher's rights to the licensed material, and you will have to consider, in consultation with your counsel, whether or not to provide such warranties.
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'''(7) Flexibility.''' Each proposed electronic project will have its own structure and terms. Such differences should be factored into your consideration of each given project. Among the factors that may differ among projects are: the number of locations within a company or institution at which the project may be accessed; possible access to the project from locations outside the company's or institution's facilities (for example, at homes of participating employees or other consumers); delivery of the project through discs, CD-ROM, net works, on-line access or document delivery; the assignment of passwords to designated employees and other consumers and limits (if any) on terminals where such passwords may be used; limitations (if any) on the number of employees or other consumers and/or permitted hard-copies; types of contemplated reuse of materials by employees or consumers. There are many other possible variations.
  
11. Limitations on Liability. As with warranties, this is an area of the law that is only beginning to be defined. If you wish to disclaim particular liabilities (those, for example, that are special, consequential or indirect), or to limit the aggregate of liability under the project to a given amount, you may wish to specifically include language to that effect in the license agreement.
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'''(8) Reports and Samples.''' Electronic reuse projects are relatively new, and you may wish, for your use in evaluating future projects, to receive certain information relating to your participation in the proposed project. Such information may well be of importance to you in formulating your policy as to such projects, and even in determining whether you desire to remain involved in a particular project; thus, some publishers have even chosen to make the receipt of such information throughout a project a condition of their continued participation. This information may include reports of usage in terms of time or number of materials viewed, in terms of data relating to volume of use, employee, consumer, location and/or material, and/or in terms of copies made. In addition or alternatively, due to the experimental nature of such projects, you may wish information on the reuser's electronic conversion and transmittal and samples of the licensed material as it is used in the project. Technological limitations and expense may limit the extent to which a reuser will readily agree to supply such information.
  
12. Guidelines. As you gain experience in electronic reuse projects, you may wish to develop and promulgate a written set of basic guidelines for distribution to prospective reusers, of licensing rights and permissions, setting forth your general policies and procedures regarding such projects. This may save time in connection with future proposals.
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'''(9) Fees.''' The amount and structure of fees or royalties, if any, is a matter that you must deter mine on the basis of the particular electronic project being proposed to you. Options include, among many others, a one-time fee, a fee based on usage, or a periodic fee. Because the amount of use a given program may receive is often a matter of conjecture at this point, both you and the reuser, for different reasons, may resist a usage-based fee. Note that the subject of fees will, by its nature, be codependent on the other terms of the proposed project (for example, in a project featuring a short trial period, both sides may be more likely to accept a more experimental fee structure during that period).
  
13. Other Issues. As noted above, this document does not provide an all-inclusive account of the matters to be considered in connection with a proposed electronic reuse project. There are innumerable others, any one of which may be of greater or lesser importance in the context of the particular project being proposed. For example, the nature of the material to be used in the project may need to be specifically defined with respect to editing, use of illustrations, abstracts, etc. Publisher approvals may be required with respect to the prospective reuser's end-product, manuals, screen display, notices and/or other materials; if so, the procedure for such approvals should be clearly described. The publisher may require warranties or covenants of quality from the prospective reuser regarding such matters as editing, scanning or reproduction. The project may involve a marketing arrangement between the parties (possibly including promotions and/or jointly sponsored conferences), the respective responsibilities for which are to be set forth. New issues will continue to arise over time as publishers and reusers grow more experienced and comfortable with electronic reuse projects in general.  
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'''(10) Warranties.''' It is not currently clear whether a license of published works for electronic reuse constitutes a sale of goods under law. In the absence of a clear standard, a publisher wishing not to give the reuser any express or implied warranties (for example, of merchantability or fitness for a particular purpose) may wish to specifically disclaim those in writing. In addition, a reuser may seek warranties regarding the publisher's rights to the licensed material, and you will have to consider, in consultation with your counsel, whether or not to provide such warranties.
  
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'''(11) Limitations on Liability.''' As with warranties, this is an area of the law that is only beginning to be defined. If you wish to disclaim particular liabilities (those, for example, that are special, consequential or indirect), or to limit the aggregate of liability under the project to a given amount, you may wish to specifically include language to that effect in the license agreement.
  
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'''(12) Guidelines.''' As you gain experience in electronic reuse projects, you may wish to develop and promulgate a written set of basic guidelines for distribution to prospective reusers, of licensing rights and permissions, setting forth your general policies and procedures regarding such projects. This may save time in connection with future proposals.
  
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'''(13) Other Issues.''' As noted above, this document does not provide an all-inclusive account of the matters to be considered in connection with a proposed electronic reuse project. There are innumerable others, any one of which may be of greater or lesser importance in the context of the particular project being proposed. For example, the nature of the material to be used in the project may need to be specifically defined with respect to editing, use of illustrations, abstracts, etc. Publisher approvals may be required with respect to the prospective reuser's end-product, manuals, screen display, notices and/or other materials; if so, the procedure for such approvals should be clearly described. The publisher may require warranties or covenants of quality from the prospective reuser regarding such matters as editing, scanning or reproduction. The project may involve a marketing arrangement between the parties (possibly including promotions and/or jointly sponsored conferences), the respective responsibilities for which are to be set forth. New issues will continue to arise over time as publishers and reusers grow more experienced and comfortable with electronic reuse projects in general.
  
  
Appendix C
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'''Appendix C'''
  
Statement of the Association of  
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''Statement of the Association of American Publishers (AAP) on Document Delivery''
American Publishers (AAP)  
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on Document Delivery  
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The copyright law provides the copyright holder with the exclusive right to control the making of copies of a copyrighted work. Exceptions to this exclusive right are intended to permit limited, occasional copying for individuals in particular circumstances which will not impair the rights of the copyright holder, nor generate regular business-like activities based on usurpation of copyright owners' rights, markets, or materials. Section 108 of the Copyright Act, for example, specifies that libraries may make copies under certain conditions; among these are that there be no direct or indirect commercial advantage, and that there be no "systematic" copying of even single copies. Moreover, the Act, legislative history and case law make quite clear that copyright owners have valuable and protected interests in the licensing of their rights to others, as well as in the sale of their products; that non-profit uses are subject to the rights of copyright owners; and that de facto coordination of copying and purchase activity among customers, and the development of services --whether "private" or "public"--for the specific purposes of providing customers with copies, are beyond the limited exceptions to copyright owners' rights. It follows that a commercial document delivery service engaging in the copying and redistribution of single and multiple copies of copyrighted articles must secure permission from and (if requested) pay royalties to the copyright holder. The case is not materially different for the newly emerged, fee-based and technology-enhanced copying and distribution services of libraries, or for systems based on barter, exchange or similar services being coordinated as "interlibrary loan." These activities are indistinguishable in purpose and effect from those of commercial document suppliers. They are also not permissible under the CONTU Guidelines governing the copying done to support the practice of interlibrary lending. The purpose of the copyright law is to ensure authors and publishers the economic wherewithal to devote their energies, talents and funds to the creation and effective packaging and distribution of intellectual works. The publishers' revenue base of sales, subscriptions, and royalties is essential to scholarship, research, education and simple enjoyment of the written word. Its vitality should not be sapped by rampant, unauthorized document supply, whether from commercial or non-profit sectors.
 
The copyright law provides the copyright holder with the exclusive right to control the making of copies of a copyrighted work. Exceptions to this exclusive right are intended to permit limited, occasional copying for individuals in particular circumstances which will not impair the rights of the copyright holder, nor generate regular business-like activities based on usurpation of copyright owners' rights, markets, or materials. Section 108 of the Copyright Act, for example, specifies that libraries may make copies under certain conditions; among these are that there be no direct or indirect commercial advantage, and that there be no "systematic" copying of even single copies. Moreover, the Act, legislative history and case law make quite clear that copyright owners have valuable and protected interests in the licensing of their rights to others, as well as in the sale of their products; that non-profit uses are subject to the rights of copyright owners; and that de facto coordination of copying and purchase activity among customers, and the development of services --whether "private" or "public"--for the specific purposes of providing customers with copies, are beyond the limited exceptions to copyright owners' rights. It follows that a commercial document delivery service engaging in the copying and redistribution of single and multiple copies of copyrighted articles must secure permission from and (if requested) pay royalties to the copyright holder. The case is not materially different for the newly emerged, fee-based and technology-enhanced copying and distribution services of libraries, or for systems based on barter, exchange or similar services being coordinated as "interlibrary loan." These activities are indistinguishable in purpose and effect from those of commercial document suppliers. They are also not permissible under the CONTU Guidelines governing the copying done to support the practice of interlibrary lending. The purpose of the copyright law is to ensure authors and publishers the economic wherewithal to devote their energies, talents and funds to the creation and effective packaging and distribution of intellectual works. The publishers' revenue base of sales, subscriptions, and royalties is essential to scholarship, research, education and simple enjoyment of the written word. Its vitality should not be sapped by rampant, unauthorized document supply, whether from commercial or non-profit sectors.

Revision as of 16:52, 4 February 2011

LINDA SANDFORD, ALABAMA


Considering the amount of paperwork, staff time, and resulting fee revenues involved, few scholarly publishers would regard permission requests as a cost-effective source of income. Rather, processing permission requests is a means to an end. It serves the important function of encouraging the dissemination of knowledge while protecting the interests and rights of scholars, authors, and publishers.

In order to avoid errors or misunderstandings, the publisher usually asks that requests for permission be put in writing and sent either by U.S. mail or fax machine. When a request is received, the publisher must first verify that the material to be used is actually from its publication and that it controls the copyright to the material. Control of the right to grant permission for use of the author's material is addressed in the publication contract. The contract may also contain other clauses that affect the granting of permission, such as a clause requiring that the author's permission be obtained prior to granting requests, or a clause requiring that permission for all use for scholarly purposes be granted without charge. The publisher must also verify that the material itself as it appears in the publisher's book is being reproduced accurately. If the request includes material in the publication used by permission from other sources, the publisher can only grant permission on that material original to the work. More publishers are now including in their responses statements that the permission granted does not include any material from other sources, and that it is the responsibility of the requester to obtain permission for use from all original sources. Finally, the publisher decides whether to place the requested use in the "fair use" category, for which no fee is charged; to grant permission and charge a fee; or to deny the request for permission.

Prior to the Copyright Act of 1976, the courts had recognized the concept of fair use, but generally fair use referred to the use of brief quotations of one author's material by another author. Over the years, fair use was challenged in the courts, and determining what was fair usually centered on what was reasonable in a case-by-case basis. When contacted for permission prior to use, copyright holders had an opportunity to determine individually what they believed to be fair and could respond that the use appeared to be fair and that no fee would be charged. What was considered "fair," however, differed from publisher to publisher. Those persons who assumed that their use was "fair" and who did not seek prior permission from the copyright holder knew that there was a possibility the use could be challenged.1

Legislators attempted to reach a balance between owners' rights and users' needs by including Section 107, the first legal statement of fair use doctrine, in the 1976 copyright law. The section considers "purposes such as criticism, comment, news reporting, teaching, scholarship, or research" and identifies four factors to be considered in determining whether the use made of a work in any particular case is fair use:


(1) The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) The nature of the copyrighted work;

(3) The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) The effect of the use upon the potential for or value of the copyrighted work.2


Because the provisions of fair use were vague, three educational groups met with organizations of publishers to reach an agreement and to develop more complete guidelines on what was to be considered "fair."3 The result was the "Educational and CONTU Guidelines"4(Agreement on Guidelines for Classroom Copying in Not-for-Profit or Educational Institutions), Appendix 3 to the General Guide to the Copyright Act of 1976, the purpose of which was "to state the minimum standards of educational fair use under Section 107 of H.R. 2223" (see Appendix A below). In a landmark suit brought against Kinko's Graphics Corporation by eight publishers in United States District Court in New York, resolved in 1991, the court found Kinko's guilty of willful copyright infringement, ruling that the company's practice of making multiple copies of copyrighted materials, without obtaining prior permission, for inclusion in anthologies sold to college students for profit violated copyright law.5 "The ruling made it clear how limited is the reliance that commercial enterprises like Kinko's can place on a fair-use defense to justify their profit-making activities."6

Since the Kinko's decision, many publishers find that requests for inclusion of their material in course packs have substantially increased, and numerous firms are competing to handle the clearance of permissions for such use for publishers. These firms deduct a commission on the fees collected from customers. If the publisher believes the requested use does not fall under fair use, what factors affect whether and how large a fee should be charged, or whether the request should be denied? There is no universal yardstick in use to determine whether a fee is waived or charged, and any discussion of permissions fees charged among various presses would be prohibited under federal laws that prohibit discriminatory pricing practices and under federal antitrust laws, as are discussions of discount policies. Most publishers have a "standard" individualized fee that they charge for what they consider "routine" use that falls outside fair use. Other factors that are or might be taken into account by the publisher when responding to a request are:


(1) The nature of the use, including whether it is commercial or scholarly. If, for example, the request is for the use of an illustration, will it be used on the cover or jacket, or inside the book? The fee would be more for a jacket or cover illustration.

(2) The amount of material. Most publishers will not agree to the use of more than 10 percent of a work, except in special circumstances (for example, if the book is out of print). (It is important to be aware when responding to permission requests for course packs that sometimes multiple requests are inadvertently submitted for the same course to photocopy pieces from a single publication that may well exceed 10 percent of that publication when taken as a whole.)

(3) The ratio of the number of pages to be used from the publisher's work to the number of pages of the proposed publication.

(4) The size of the print run of the publication the material will be used in.

(5) The price of the proposed publication.

(6) The effect of the requested use on the market of the publisher's work. Sometimes in instances where a fee might normally be charged by a publisher, the fee is waived if the person making the request agrees to include in the reproduction the name and price of the publisher's book and ordering information.

(7) The prominence of the author or book.

(8) Contractual agreements with the author permitting liberal without-fee use if the purpose is for research or scholarship.


As late as 1981-1982, the AAUP Directory carried a "Resolution on Permissions" signed by 56 member presses affirming their belief that "it is in the interest of publishers and scholars alike to facilitate and spread the use and to increase the value of all scholarly publications by allowing scholars to quote without prior permission from published sources whatever they legitimately need to make their scholarly writings complete, accurate, and authenticated." They further agreed that publications issued under their imprints may be quoted without specific prior permission in works of original scholarship for accurate citation of authority or for criticism, review, or evaluation, subject to the conditions listed below:


(1) Appropriate credit must be given in the case of each quotation.

(2) Waiver of the requirement for specific permission does not extend to quotations that were complete units in themselves (as poems, letters, short stories, essays, journal articles, complete chapters or sections from books, maps, charts, graphs, tables, drawings, or other illustrative materials), in whatever form they may be reproduced; nor would the waiver extend to quotations of whatever length presented as primary material for its own sake (as in anthologies or books of readings). The fact that specific permission for quoting of material may be waived under this agreement did not relieve the quoting author and publisher from the responsibility of determining "fair use" of such material.7


If a fee is charged, how is it tracked and collected? Some publishers set the fee up as a receivable. A number choose to file a copy of the response in a pending file and review the file periodically--for example, every three to six months. Most fees are payable upon publication or use. A follow-up notice is sent when the intended use date (projected publication or term for educational use) falls within the review period. When the permission payment arrives, the press's portion is recorded as permission income. The amount due the author is set up as a payable and is paid either when the permission payment is received or, more commonly, when royalties are paid, to reduce the amount of paperwork. If the material is not used, the publisher is notified, and the response is pulled from the publisher's pending file.

Many publishers have an in-house rule of thumb to determine how much material from other sources they will permit their own authors to use without requiring them to obtain permission for the use, and it varies from publisher to publisher. Some require that permission be obtained for the use of more than 100 to 250 words of prose from a single source and between 1 and 10 lines of poetry, all illustrations, charts, graphs, maps, songs, and interviews (from the person interviewed). Because of the vagueness of the law, and the number of suits brought challenging fair use, many publishers have narrowed the range of what they consider fair use and are requiring their authors to obtain permission for the use of material they formerly might have considered to fall under fair use. "Generally to establish the Fair Use defense, one must prove that he is merely `using' the copyrighted work in an information-disseminating, non-economically diluting way."8

Payment of fees assessed for use are considered the responsibility of the author. Sometimes arrangements are made whereby the permission fees are paid by the publisher and are considered an advance against the author's royalties.

With the growth of electronic telecommunications and information delivery, publishers will need to become more familiar with the processes involved in these new technologies and will need to establish appropriate guidelines for the use of their copyrighted material, as well as ensuring that these rights are addressed in their standard publishing contract. Most scholarly publishers are attempting to address the issues created by electronic delivery, but the area is still so new and mercurial that few presses have established policies. The January 22, 1991, "AAP Discussion Draft for the AAP Electronic Information Committee and the AAP Rights and Permissions Advisory Committee: Rights and Permissions Issues Arising from the Electronic Reuse of Copyrighted Material" (Appendix B be low), which was circulated to AAUP press directors, can "assist a publisher in formulating its own permissions policy by exploring some of the many issues that commonly arise in the context for electronic reuse and by suggesting ways in which a publisher may choose to approach such requests."9

Rather than becoming less time-consuming, processing permission requests promises to become more complex and challenging as publishers con tend with the impact of the new technology. It is important, however, for publishers to keep pace with the changes in order to maintain the balance between the free flow of ideas and information and the proprietary interests of their authors.



Notes

1. Horowitz, Irving Louis, and Mary E. Curtis, "Fair Use versus Fair Return: Copyright Legislation and Its Consequences," Journal of the American Society for Information Science (March 1984). Copyright 1984 John Wiley & Sons.

2. Copyright Act of 1976, Public Law 94-553, Title 17, United States Code.

3. Drabelle, Dennis, "Copyright and Its Constituencies: Reconciling the Interests of Scholars, Publishers, Librarians," Scholarly Communication (March 1976).

4. CONTU is an acronym for National Commission on New Technological Uses of Copyrighted Works.

5. "Questions and Answers about Basic Books v Kinko's: What The Decision Means for the Educational Community," Association of American Publishers.

6. Thatcher, Sandy, Letter to the Editor, Daily Collegean, Pennsylvania State University, April 19, 1991.

7."Resolution on Permissions," Association of American University Presses Directory, 1981-1982.

8. Higgins, James R., "Fundamentals of Copyright Law," presented at a Continuing Education Seminar at the Louisville Bar Association, June 6, 1986. Copyright 1986 James R. Higgins Jr.

9. The 1991 Discussion Draft and the 1994 Statement of the Association of American Publishers on Document Delivery are reprinted as Appendix B and Appendix C following this article with the permission of the Association of American Publishers.


Appendix A

Agreement on Guidelines for Classroom Copying in Not-for-Profit Educational Institutions (Educational and CONTU Guidelines) With Respect to Books and Periodicals

(included in House Report 94-1476)

The purpose of the following guidelines is to state the minimum standards of educational fair use under Section 107 of H.R. 2223. The parties agree that the conditions determining the extent of permissible copying for educational purposes may change in the future; that certain types of copying permitted under these guidelines may not be permissible in the future; and conversely that in the future other types of copying not permitted under these guidelines may be permissible under revised guidelines. Moreover, the following statement of guidelines is not intended to limit the types of copying permitted under the standards of fair use under judicial decision and which are stated in Section 107 of the Copyright Revision Bill. There may be instances in which copying which does not fall within the guidelines stated below may nonetheless be permitted under the criteria of fair use.


Guidelines


(I) Single Copying for Teachers: A single copy may be made of any of the following by or for a teacher at his or her individual request for his or her scholarly research or use in teaching or preparation to teach a class:

(A) A chapter from a book;

(B) An article from a periodical or news paper;

(C) A short story, short essay or short poem, whether or not from a collective work;

(D) A chart, graph, diagram, drawing, cartoon or picture from a book, periodical, or newspaper;

(II) Multiple Copies for Classroom Use: Multiple copies (not to exceed in any event more than one copy per pupil in a course) may be made by or for the teacher giving the course for classroom use or discussion; provided that:

(A) The copying meets the test of brevity and spontaneity as defined below; and,

(B) Meets the cumulative effect test as defined below; and,

(C) Each copy includes a notice of copyright.

(III) Prohibitions as to (I) and (II): Notwithstanding any of the above, the following shall be prohibited:

(A) Copying shall not be used to create or replace or substitute for anthologies, compilations or collective works. Such replacement or substitution may occur whether copies of various works or excerpts therefrom are accumulated or produced and used separately.

(B) There shall be no copying of or from works intended to be "consumable" in the course of study or of teaching. These include workbooks, exercises, standardized tests and test booklets and answer sheets and like consumable material.

(C) Copying shall not:

a. substitute for the purchase of books, publishers' reprints or periodicals;

b. be directed by higher authority;

c. be repeated with respect to the same item by the same teacher from term to term.

(D) No charge shall be made to the student beyond the actual cost of the photocopying.


Definitions


BREVITY

(I) Poetry: (A) A complete poem if less than 250 words and if printed on not more than two pages or, (B) from a longer poem, an excerpt of not more than 250 words.

(II) Prose: (A) Either a complete article, story or essay of less than 2,500 words, or (B) an excerpt from any prose work of not more than 1,000 words or 10% of the work, whichever is less, but in any event a minimum of 500 words. [Each of the numerical limits stated in (I) and (II) above may be expanded to permit the completion of an unfinished line of a poem or of an unfinished prose paragraph.]

(III) Illustration: One chart, graph, diagram, drawing, cartoon, or picture per book or per periodical issue.

(IV) "Special" works: Certain works in poetry, prose, or in "poetic prose" which often combine language with illustrations and which are intended sometimes for children and at other times for a more general audience fall short of 2,500 words in their entirety. Paragraph (II) above notwithstanding such "special works" may not be reproduced in their entirety; however, an excerpt comprising not more than two of the published pages of such special work and containing not more than 10% of the words found in the text thereof, may be reproduced.

SPONTANEITY

(I) The copying is at the instance and inspiration of the individual teacher, and

(II) The inspiration and decision to use the work and the moment of its use for maximum teaching effectiveness are so close in time that it would be unreason able to expect a timely reply to a request for permission.

CUMULATIVE EFFECT

(I) The copying of the material is for only one course in the school in which the copies are made.

(II) Not more than one short poem, article, story, essay, or two excerpts may be copied from the same author, not more than three from the same collective work or periodical volume during one class term.

(III) There shall not be more than nine in stances of such multiple copying for one course during one class term. [The limitations stated in "ii" and "iii" above shall not apply to current news periodicals and newspapers and current news sections of other periodicals.]


Appendix B

Draft: 1/22/91

Discussion Draft for the AAP Electronic Information Committee and the AAP Rights & Permissions Advisory Committee

Rights and Permission Issues Arising from the Electronic Reuse of Copyrighted Material

This document discusses issues of interest to publishers in the context of the electronic reuse of copyrighted material. It is intended for both rights and permissions personnel and general business people at publishing houses that own copyright to their published works and that have rights and permissions policies for their printed works. A publisher may or may not itself publish materials in electronic form; in any case, a publisher may grant permission for its materials to be used electronically by others, either by downloading the materials already in electronic form into a computer or by scanning (or otherwise inputting) the hard copy form of the materials into electronic form. Most of these uses require a grant of rights or permission, and potential reusers should approach publishers for such rights or permission. For the purposes of this document, the term "reuse" of materials will mean a reuser's electronic activities with a publisher's materials. As technology progresses at ever-increasing speed, the varieties of such reuse are virtually limitless. Publishers will constantly be presented with requests from potential reusers for permission for new and different reuses. A publisher's policy for dealing with such requests must necessarily be flexible. The following outline is intended by AAP to assist a publisher in formulating its own permissions policy by exploring some of the many issues that commonly arise in the context of requests for electronic reuse and by suggesting ways in which a publisher may choose to approach such requests. This document is by no means an exhaustive description of all the issues that may arise in connection with such a project, but is meant only to discuss certain fundamental matters relating to electronic reuse.

(1) Corporate Structure. The rights and permissions policy of your company with respect to electronic reuse programs should be discussed with and agreed upon by appropriate personnel. These may include the company Copyright Manager, the Director of Publications, an attorney knowledgeable in copyright, and/or the CEO. If possible, a policy should be set on a company-wide basis. Whatever the technical provisions of a proposed electronic reuse project, the business implications of such a proposal are probably of paramount importance to the publisher. Because this area is rapidly changing and your company's experience may be handled by a large number of people in different departments-- permissions, legal, editorial, financial, as well as "new technology" personnel--it is probably advisable for the responsible personnel to review the company's guidelines at regular intervals. In addition, it is possible that many companies that grant permissions will themselves be seeking rights to electronic reuse in other contexts; the advice of those personnel who function as "buyers" may be helpful in determining the company's policies as a "seller."

(2) Grant of Rights. The same general rights and permissions policies for printed works may be applied to the electronic reuse of your materials; however, certain types of electronic reuse may conflict with your own actual or contemplated (printed) publications activities. Requests for particular reuses should be considered in light of your overall plans for the requested materials. Certain categories of electronic reuse may be unacceptable to you as a matter of policy, while others may be permissible subject to agreed-upon limitations. The end-product of the proposed electronic reuse (for example, the contemplated end result may be a printed book or may be the inclusion of your company's material in data to be carried over an electronic network) should at all times be considered when the request for permission is balanced against your overall plans for the relevant materials. Similarly, a factor to be considered is whether the reuse would result in the creation of a new derivative of the original work, and the implications of such a derivative on the original work. The electronic reuses to be permitted by the proposed project, as well as the specific works to be covered by the proposed project, should be clearly understood by both parties, and should generally be set forth in writing. This writing should resolve such issues as the technology to be used, the publisher's materials desired by the reuser (including whether a publisher's material is to be used in combination with materials from other publishers and similar issues, and whether the publisher's deliverables are to be in print, disk, tape or other form), the duration of the permitted reuse, geographic limitations (if any), reuser deliverables (including any manuals and other documentation, as well as reports and samples as described in paragraph 8 below), whether resale is to be permitted, and whether the reuse will be restricted by location, personnel, passwords or other means. All these issues should be explored with the particular reuser, in order to determine its needs and capabilities and assess those in light of the publisher's own needs and capabilities (and any limitations on the scope of the rights actually owned by the publisher).

(3) Credit. In order to protect your legal rights and those of any other relevant copyright owner, a credit identifying the owner and you as the licensor should be incorporated into the electronic reuse project. The form in which this credit is displayed may be a function in some cases of the technical sophistication of the reuser's system, and in others may be a more cosmetic issue (as, for example, where a reuser wishes to minimize the repetition or prominence of the notice). Current technology may (or, for a given reuser, may not) permit inclusion of the credit on separate copyright screens, in reuser manuals, on disc labels and packaging, on hard-copy print-outs, and/or on each screen and/or page that features a given material, among other options. A related issue is that of notices, including notices, under the copyright laws and/or applicable disclaimers, if any. As with credits, the form, frequency, wording and specific nature of the notices used may in some cases be a function of the reuser's technology and in others may be a matter for negotiation.

(4) Trial Periods. In some cases you and the reuser may consider an arrangement under which licensing rights or permissions are at first granted for a limited, trial period. Note, though, that for some reusers, the bulk of expenses may occur at the outset of a licensing project; for that reason, the length of the trial period and the financial consideration for such period may have to be negotiated between you and the reuser. At the same time, since the relative ease of electronic entry and downloading could make the retracing of the reuser's acts after the trial period rather difficult, it may be advisable to describe the rights of the par ties during the trial period at a level of detail similar to that used in describing rights during a formal contract period. Another factor that may figure into the calculations relating to such a trial period is whether the reuser is attempting a project involving more than one publisher, to commence on a single start date. Finally, an agreement that provides for trial periods should specify what will happen at the end of the period: possibilities include providing that the project may terminate unless extended by the parties, or that it may continue unless otherwise terminated, or that the parties will discuss continuance in good faith at such time. The publisher may want to provide in detail what is to happen at the end of a trial period (as well as at the end of a regular contract term): for example, what needs to be destroyed (or certified as destroyed) or redelivered.

(5) Exclusivity. A publisher should evaluate whether a grant for electronic reuse should be exclusive. Among the factors to be considered before granting exclusive rights are the specific reuses that are being licensed, the geographic territory of the license, the likelihood of other reusers wanting those or similar rights, the term of the grant, and the licensing fees or royalties that are to be received under the project.

(6) Writing. In the interests of clarity and the avoidance of future disputes, you may wish to avoid granting verbal rights or permission; as a matter of general policy, it is thus highly advisable where possible to require that all rights and permission requests be submitted in writing and to grant requests only in writing. Such writing should clearly and precisely describe the specific rights being granted and works to which it applies (or, if appropriate, that a blanket license is intended as to all works or all forms of electronic use and reproduction).

(7) Flexibility. Each proposed electronic project will have its own structure and terms. Such differences should be factored into your consideration of each given project. Among the factors that may differ among projects are: the number of locations within a company or institution at which the project may be accessed; possible access to the project from locations outside the company's or institution's facilities (for example, at homes of participating employees or other consumers); delivery of the project through discs, CD-ROM, net works, on-line access or document delivery; the assignment of passwords to designated employees and other consumers and limits (if any) on terminals where such passwords may be used; limitations (if any) on the number of employees or other consumers and/or permitted hard-copies; types of contemplated reuse of materials by employees or consumers. There are many other possible variations.

(8) Reports and Samples. Electronic reuse projects are relatively new, and you may wish, for your use in evaluating future projects, to receive certain information relating to your participation in the proposed project. Such information may well be of importance to you in formulating your policy as to such projects, and even in determining whether you desire to remain involved in a particular project; thus, some publishers have even chosen to make the receipt of such information throughout a project a condition of their continued participation. This information may include reports of usage in terms of time or number of materials viewed, in terms of data relating to volume of use, employee, consumer, location and/or material, and/or in terms of copies made. In addition or alternatively, due to the experimental nature of such projects, you may wish information on the reuser's electronic conversion and transmittal and samples of the licensed material as it is used in the project. Technological limitations and expense may limit the extent to which a reuser will readily agree to supply such information.

(9) Fees. The amount and structure of fees or royalties, if any, is a matter that you must deter mine on the basis of the particular electronic project being proposed to you. Options include, among many others, a one-time fee, a fee based on usage, or a periodic fee. Because the amount of use a given program may receive is often a matter of conjecture at this point, both you and the reuser, for different reasons, may resist a usage-based fee. Note that the subject of fees will, by its nature, be codependent on the other terms of the proposed project (for example, in a project featuring a short trial period, both sides may be more likely to accept a more experimental fee structure during that period).

(10) Warranties. It is not currently clear whether a license of published works for electronic reuse constitutes a sale of goods under law. In the absence of a clear standard, a publisher wishing not to give the reuser any express or implied warranties (for example, of merchantability or fitness for a particular purpose) may wish to specifically disclaim those in writing. In addition, a reuser may seek warranties regarding the publisher's rights to the licensed material, and you will have to consider, in consultation with your counsel, whether or not to provide such warranties.

(11) Limitations on Liability. As with warranties, this is an area of the law that is only beginning to be defined. If you wish to disclaim particular liabilities (those, for example, that are special, consequential or indirect), or to limit the aggregate of liability under the project to a given amount, you may wish to specifically include language to that effect in the license agreement.

(12) Guidelines. As you gain experience in electronic reuse projects, you may wish to develop and promulgate a written set of basic guidelines for distribution to prospective reusers, of licensing rights and permissions, setting forth your general policies and procedures regarding such projects. This may save time in connection with future proposals.

(13) Other Issues. As noted above, this document does not provide an all-inclusive account of the matters to be considered in connection with a proposed electronic reuse project. There are innumerable others, any one of which may be of greater or lesser importance in the context of the particular project being proposed. For example, the nature of the material to be used in the project may need to be specifically defined with respect to editing, use of illustrations, abstracts, etc. Publisher approvals may be required with respect to the prospective reuser's end-product, manuals, screen display, notices and/or other materials; if so, the procedure for such approvals should be clearly described. The publisher may require warranties or covenants of quality from the prospective reuser regarding such matters as editing, scanning or reproduction. The project may involve a marketing arrangement between the parties (possibly including promotions and/or jointly sponsored conferences), the respective responsibilities for which are to be set forth. New issues will continue to arise over time as publishers and reusers grow more experienced and comfortable with electronic reuse projects in general.


Appendix C

Statement of the Association of American Publishers (AAP) on Document Delivery

The copyright law provides the copyright holder with the exclusive right to control the making of copies of a copyrighted work. Exceptions to this exclusive right are intended to permit limited, occasional copying for individuals in particular circumstances which will not impair the rights of the copyright holder, nor generate regular business-like activities based on usurpation of copyright owners' rights, markets, or materials. Section 108 of the Copyright Act, for example, specifies that libraries may make copies under certain conditions; among these are that there be no direct or indirect commercial advantage, and that there be no "systematic" copying of even single copies. Moreover, the Act, legislative history and case law make quite clear that copyright owners have valuable and protected interests in the licensing of their rights to others, as well as in the sale of their products; that non-profit uses are subject to the rights of copyright owners; and that de facto coordination of copying and purchase activity among customers, and the development of services --whether "private" or "public"--for the specific purposes of providing customers with copies, are beyond the limited exceptions to copyright owners' rights. It follows that a commercial document delivery service engaging in the copying and redistribution of single and multiple copies of copyrighted articles must secure permission from and (if requested) pay royalties to the copyright holder. The case is not materially different for the newly emerged, fee-based and technology-enhanced copying and distribution services of libraries, or for systems based on barter, exchange or similar services being coordinated as "interlibrary loan." These activities are indistinguishable in purpose and effect from those of commercial document suppliers. They are also not permissible under the CONTU Guidelines governing the copying done to support the practice of interlibrary lending. The purpose of the copyright law is to ensure authors and publishers the economic wherewithal to devote their energies, talents and funds to the creation and effective packaging and distribution of intellectual works. The publishers' revenue base of sales, subscriptions, and royalties is essential to scholarship, research, education and simple enjoyment of the written word. Its vitality should not be sapped by rampant, unauthorized document supply, whether from commercial or non-profit sectors.

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