Photocopying and Copyright

PHOTOCOPYING AND COPYRIGHT:

ISSUES FOR SMALL SPECIAL LIBRARIES IN NEW SOUTH WALES

Jacqueline Patrick

A dissertation submitted in partial fulfilment of the requirements for the degree of

Master of Librarianship in the University of New South Wales, 1994 UNIVERSITY OF N.S.W. 7 SEP m LIBRARIES I hereby declare that this submission is my own work and that, to the best of my knowledge and belief, it contains no material previously published or written by another person nor material which to a substantial extent has been accepted for the award of any other degree or diploma of a university or other institute of higher learning, except where due acknowledge is made in the text.

(Signed) Abstract

This thesis investigated the extent of breach of copyright through photocopying by,

and the impact of compliance with the Copyright Act on, special librarians. The survey

was restricted to special libraries in New South Wales which were listed in the 8th

edition of the Directory of Special Libraries in Australia and its September 1992

update, and which had collections of 10,000 volumes or less. Because of the nature of

the libraries surveyed, where photocopying of currently published material is a daily

part of life, and because of the very wide scope of Commonwealth copyright

legislation, the study was restricted to the copyright residing in literary works.

The survey investigated the role of special librarians in policing a law which threatens

criminal conviction. It assumed that breach of the copyright laws is a frequent

occurrence and aimed at determining the extent to which librarians are in a position to

enforce compliance. Librarian's attitudes toward copyright and photocopying were

also sought. It was also assumed that, as far as librarian's attitudes are concerned,

what is the case in similar studies conducted in the United States is probably the same

as the case in Australia and that no significant differences would be found between the

findings of these surveys and the outcome of the survey undertaken for the purposes

of this thesis. It was assumed that librarians still consider the laws to some extent

unreasonable, that they still have difficulty in getting a commitment to compliance

from both clients and management, and that they continue to act in a knowledgable,

professional and responsible matter in spite of these difficulties.

A questionnaire was developed and tested with a pilot study. The final questionnaire was photocopied and distributed to respondents with a letter of explanation attached

and with a stamped addressed envelope included. The questionnaire was posted to 291

special libraries. Of these, 203 or 70% were returned, of which 188 or 93% could be used for analysis.

iii A summary of the results of the survey is as follows: The average number of staff in the special libraries surveyed is 1.4 full-time staff. 87% of libraries have their own photocopier located in the library. Users do the most photocopying, and because the majority of librarians think that users are not aware of copyright laws, there is a copyright warning notice placed by the copier in accordance with section 39 A of the

Copyright Act in 67% of libraries. All respondents were aware of copyright laws in varying degrees, the majority (67%) having read the Copyright Act and 72% of librarians supplementing their knowledge with further reading.

83% of special libraries produce a library bulletin for disseminating information to their users. 33% of these libraries include contents pages of serials in their library bulletin, and 38% include full or partial bibliographic details of items, often from their own catalogue , a monthly frequency being the most preferred. The majority of librarians

(78%) would not photocopy a whole book, but contents pages are photocopied by

81% of respondents on a frequency ranging from at least once a week to every few months. 87% of all material photocopied is currently in print.

Although request forms are the most frequent method of requesting photocopies, 56% of respondents did not ask users to sign a declaration form in accordance with section

49 of the Act. When declaration forms were kept they were generally in line with statutory requirements in that they were kept in chronological order, but were kept for longer periods than the Act requires. Even though the entitlement to rely on section 49 as a defence is lost unless a notation is made on each copy of the name of the copying library and the date, only 50% of libraries made such a notation.

While 70% of respondents thought that copyright laws were reasonable, 28% of comments made by these cited problems with powerlessness and with the difficulties of policing the law. The results of the survey are presented and discussed. The issues for special librarians raised by the findings included problems with powerlessness and with the difficulties of policing the law. Additional problems over record keeping were cited. Other aspects raised were the inadequacies of the Act to keep up with new technologies, the expression of concern at not being able to copy contents pages, and the need for further education. The issues raised by the findings are presented and discussed. TABLE OF CONTENTS

Page

ACKNOWLEDGEMENTS ix

LIST OF TABLES x

Chapter

I. INTRODUCTION

Creativity or economic reward? 1

How special librarians are affected 2

Aim of the survey and assumptions 3

Postcript 4

II. COPYRIGHT & PHOTOCOPYING

History of the legislation in the United Kingdom 5

The Copyright Act in Australia 6

The Australian Copyright Council 7

The Copyright Agency Limited 8

The role of the photocopier in formulating legislation 9

The Franki report 10

III. PHOTOCOPYING IN LIBRARIES

Protection for literary works 16

Photocopying in libraries in educational institutions 17

Photocopying in Government Libraries 19

Photocopying in Special Libraries 20

IV. RESEARCH FINDINGS FROM THE LITERATURE 25

V. SURVEY DESIGN

Limitations of the study

Scope of subject 37

Range of respondents 38 Data gathering instruments

Subjects and sampling 39

A pilot study 41

Data gathering procedures

Distribution 42

VI. ANALYSIS OF DATA

Response rate 44

The Results

A composite picture of the respondent library 45

Payment of licence fees to CAL 46

Who does the copying? 48

The location of the photocopier & copyright notice 49

Users' awareness of copyright laws 50

Librarians' knowledge of copyright laws 52

Means of disseminating information 53

Extent of breach of copyright 55

Method of requesting photocopies 57

Record keeping 58

Defences under the Act 60

Charging for photocopies 60

Librarians' views on copyright laws 61

Summary of findings 69

VII. DISCUSSION

Introduction 71

Problems with policing or powerlessness 72

The problems associated with record keeping 73

The ability of the Act to keep up with new technologies 74

The problem of contents pages 75

Conflict with publishers' profit motive 78

vii The need to protect authors'/publishers' rights 80

Education 80

VIII. CONCLUSION 83

BIBLIOGRAPHY 87

APPENDIXES

Appendix A: Review of the literature 96

Appendix B: Questionnaire development 113

Appendix C: Letter accompanying questionnaire 117

Appendix D: The Questionnaire 118

Appendix E: The results of the survey 124

viii ACKNOWLEDGMENTS

Filling in questionnaires is time-consuming and rarely interesting. It was an insight into the responsibility librarians feel toward their profession to see how many completed

and returned the questionnaire related to this study. It was enormously motivating to

see that many had added words of encouragement. The author wishes to thank those

librarians.

The contribution of my supervisor, Professor Boyd Rayward, Dean of the Faculty of

Professional Studies at the University of New South Wales, is gratefully

acknowledged. LIST OF TABLES

1. Sizes of Collections of Special Libraries in the New South Wales

Section of the Directory of Special Libraries. 40

2. Staff doing Photocopying 48

3. Frequency of library bulletins designed to disseminate information 54

4. Contents of the library bulletins 55

5. Materials Photocopied and Frequency of Photocopying 56

6. Means by which users request photocopies 58

7. Periods for which Copyright Declaration forms are kept 59

8 Charges made for non-Inter-Library Loan photocopying 61

9 Classification of comments in response to Question 20 63

x I. INTRODUCTION

Creativity or economic reward?

The modern view of the purpose of copyright law is that it exists in order "... to protect and reward creativity and intellectual effort". 1 The symbol of the Australian

Copyright, Encourage Creativity". Ploman and Hamilton 2 state that copyright is expected to provide an answer to the question "How can intellectual creativity best be promoted?" Perhaps a more realistic view is offered by the State Library of New

South Wales which considers that the function of modern copyright is to provide "... the balance between the artist's right to rewards for his creativity on the one hand and the right of the community to freely circulate ideas, information and images on the other". 3

This philosophy of promoting creativity endorses a legal movement away from an historical emphasis on the protection of property (usually of the upper classes) to a more equitable basis of social justice for the benefit of all. However, the purpose of copyright law is not as altruistic as it appears. Copyright in effect relies on a monopoly in order to protect the interests of the owners. Those affected by copyright are the creator, the distributor (publisher), the consumer (user) and society as a whole. As will be seen in this study, the economic role comes to the fore more often than the creative.

1 Australian Copyright Council. Copyright in Australia. Redfern, New South Wales: Australian Copyright Council, Sydney, 1989. p.2.

2 Ploman, Edward W. & Hamilton, L. Clark, Copyright: intellectual property in the information age, Routledge & Kegan Paul, London, 1980 p. 1.

3 State Library of New South Wales. Coping with Copyright: A Guide to using pictorial and written material in Australian Libraries and Archives, State Library of New South Wales Press, Sydney, 1991. p. 13. How special libraries are affected

It is the economic aspect which has always remained the concern of all librarians, particularly those in charge of special libraries. These librarians must continually maintain a balance between adhering to the strict regulations imposed by the

Parliamentary librarians, at the time of the drafting of the Australian Copyright Act, worked together to lobby for exclusion from the restrictions of the Act and succeeded.

The situation for academic and school libraries, while not completely satisfactory, is reasonably clear and problems and payments to copyright collecting agencies are generally taken care of by an administrative body. Special librarians, however, have to work primarily on their own, relying on their own interpretation of a difficult piece of legislation, from possibly biased advice from the Australian Copyright Council and from peers. Special librarians are often not in a strong enough position within their workplace to enforce the law, and often have little sympathy from management when they try to do so. Yet enforcing the law is what special librarians are expected to do.

The Copyright Act holds the potential for inflicting criminal sanctions if they do not.

At a meeting of the Sterling Committee of Law Librarians held in 1991, two visiting lawyers speaking on copyright stated that they considered it only a matter of time before a major publisher took a number of law firms to court for breach of copyright.

In America in the same year a publisher sued a large law firm for $14 million for photocopying whole newsletters for circulation.4 Special librarians are both threatened and confused by the responsibilities given to them by the copyright legislation. They are in a 'no-win' situation both when they abide by the law and when they don't. When they abide by the law they have to override users' objections to what

4 DeBenedictis, D. J. 'Saving on subscriptions?' in ABA Journal, May, 1991, p.32.

2 are commonly seen as tedious restrictions and bureaucratic administrative requirements, as well as having to cope with the accompanying amounts of paperwork in a busy schedule. When they don't abide by the law they face the possibility of being fined. What happens is that: "...libraries work in a kind of vacuum, either possibly breaking the law or acting as the 'Police of the Copyright Act' or trying to make the best of a bad situation". 5 The end result is confusion for both users and special librarians which results in a tendency to ignore the law, or rather, dismiss it as 'too difficult'.

Aim of the survey and assumptions

This thesis investigates the extent of breach of copyright through photocopying by, and the impact of compliance with the Copyright Act on, special librarians in libraries with collections of 10,000 volumes or less. This selected group comprises 67% of the special libraries in New South Wales which are listed in the 8th edition of the

Directory of Special Libraries in Australia and its September 1992 update. The issues raised by the findings for special librarians are discussed. The survey that forms the basis of this study investigates the role of the special librarians in policing a law which threatens criminal conviction. It assumes that breach of the copyright laws is a frequent occurrence and wishes to establish the extent to which librarians are in a position to enforce compliance. The respondent libraries are anonymous. Because of the nature of the libraries surveyed, where photocopying of currently published material is a daily part of life, and because of the very wide scope of Commonwealth copyright legislation, the study is restricted to photocopying and therefore only to the copyright residing in literary works.

5 MacPherson, L. B., 'The State of Copyright Legislation in Canada and Its Impact on Libraries', Commonwealth Law Librarian, 1,1, January 1992, p. 59.

3 Postscript

Many developments related to photocopying and copyright began to emerge during the writing of this thesis. The proliferation of seminars by the Australian Copyright

Council, the drafting of corporate licences for special libraries by the Copyright Agency

Limited, the freeing of state legislation in New South Wales from copyright restrictions6, and the introduction by a leading publisher of a licensing agreement that

"...breaks new ground in the field of copyright, allowing subscribers to its legal services to copy and distribute selected parts of its publications across their computer networks". 7 As developments continue to arrive, things appear to improve. But although much has changed in agency regulation of the law, and in the growth of technology, it is clear from the results of this survey that little has changed in practical terms for librarians since George Fry and Associates surveyed photocopying in libraries thirty years ago. A continuing problem is keeping up to date with changes from the many players involved. Librarians are worried and will continue to be as long as they are liable under the Act.

6 A press release from the New South Wales Attorney-General on 15 August 1993 waived Crown Copyright in statutory material, stating that "Copyright should not prevent people having access to the legislation that they own... The waiver will do away with anachronistic concepts of Crown ownership that are not relevant to today's society."

7'Bullet LAN service fired at lawyers: a distribution of legal bulletins via LANs', Incite, Vol. 14, Issue 9, 20 September 1993. p. 20.

4 II. COPYRIGHT AND PHOTOCOPYING

History of the legislation in the United Kingdom

Ploman and Hamilton 8 contend that there are a number of theories as to the beginnings of copyright. It could have started:

- in the sixth century B.C. when artists in Greece had for the first time

individual recognition rather than collective identities; or

- at the time which covers the copying by monks of original manuscripts of

which very limited numbers existed; or

- at the time of the first printing press in 1436, or

- much later, when regulatory legislation appeared at the time of Henry VIII.

The most popular theory is the third one, the discovery of the printing press.

With the spread throughout Europe of printing from movable type during the

"incunabula" period, c. 1450-1500, when printers also acted as publishers, popular works were reproduced by many presses. "Publishing and piracy appeared almost simultaneously" 9 and it was necessary to protect property interests in printing from piracy.

The first copyright legislation was the Star Chamber decree in 1556 which was the first piece of legislation which could be recognised as copyright law. Its function was twofold, to apply a degree of censorship desired by the ruling Parliament, and

secondly to apply economic controls by restricting market forces. The Star Chamber

Decrees spanned the period from 1556 to early 1700, and restricted printing to members of the Stationers' Company, (i.e. bookbinders, sellers and printers). Although recognised in the modern literature as a step toward copyright law as it is known

8 Ploman, op. cit., p. 5.

9 ibid., p. 9.

5 today, the Star Chamber decree was still far removed from copyright law as we know it. It was "...concerned far more with censoring the political and religious content of literature than with the protection of authors".10

After a period without licensing the Statute of Anne was passed in 1709. Its full title was "An Act for the Encouragement of Learning, by vesting the Copies of printed

Books in the Authors or Purchasers of such Copies, during the Times therein mentioned" This statute has been called "..the mother of copyright legislation in all

English speaking nations". *11 The new law meant that ownership was only to be for a period of twenty-one years, and could extend beyond the membership of the

Stationers' Company. Copyright law at this time was solely and specifically aimed at protecting the property rights of the publisher and no mention of encouraging creativity or protecting author's rights was made. After the Statute of Anne, the next most important development in copyright legislation was of the Imperial Copyright

Act of 1911 when all copyright legislation in the United Kingdom and British

Commonwealth and Empire was given a single and common foundation.

The Copyright Act in Australia

From the Australian point of view, the first copyright legislation was the Copyright

Act passed in 1905. This Act established a Commonwealth Copyright Office with

which copyright and performing rights had to be registered. Seven years later the

United Kingdom's Imperial Copyright Act of 1911 was used as the foundation for the

Australian Copyright Act of 1912. This was followed by the Copyright Acts of 1933,

1935 and 1963. In 1958 the Federal Attorney-General appointed a committee, the

chairman of which was Sir John Spicer, to investigate copyright law in Australia, and

10 Marks, C. et al. Copyright Law. Leo Cussen Institute, Melbourne, 1984. p. 1.

11 Forster, J., 'The Importation provisions of the Copyright Act 1968 - a historical and comparative analysis', Copyright Reporter, 7, 3, August 1989, p. 3.

6 to consider what changes should be made to the legislation. While the work of this

committee provided important input, it was the United Kingdom Act of 1956 which

laid the basis of the Copyright Act 1968. It is this act which abolished the system of

registration and sets down the current law pertaining to copyright in Australia.

The 1968 Act also made provision for a body to be named as a collecting society for

the purposes of collecting licence fees for distribution to copyright owners. The

owners . These two organisations will be referred to frequently in this thesis and so

some introduction to them is necessary.

The Australian Copyright Council

The Australian Copyright Council promotes the idea that copyright encourages

creativity and that by observing copyright librarians ensure that their collections grow.

The ACC is a non-profit company operating on a grant from the Australia Council. It

has six lull-time staff which includes four lawyers. The functions of the council are to

provide free legal advice and information, and to raise copyright consciousness

through research, consultancy, seminars and lobbying. As the Copyright Act is often

not clear about how special libraries can operate within the law, librarians often have

recourse to the Australian Copyright Council for advice. Most of this advice is relayed

over the telephone. Australian Copyright Council lawyers are generally young and

inexperienced (there appears to be a high turnover of legal staff there) and it is not

difficult to find conflicting views on interpretation of particular sections from older,

more experienced lawyers.

The ACC holds regular seminars for librarians in different areas of copyright law. At

these seminars librarians have the opportunity to ask those questions which affect

7 them specifically. The attendance at these seminars is slowly growing as librarians become aware of the extent of their liability.

The Copyright Agency Limited

The Copyright Agency Limited, or CAL, also holds that "Respect for copyright encourages creativity".12 CAL, a collecting society empowered by the Copyright Act, has a membership which includes many Australian publishers, authors, and members of the Australian Journalists Association. It also, through a number of bilateral agreements, represents authors and publishers from other countries and is a member of the International Confederation of Societies of Authors and Composers and of the

International Federation of Reproduction Rights Organisations. CAL operates by

'licensing' educational institutions to make multiple copies of certain kinds of print material for the purpose of a course of education if they undertake to pay equitable remuneration to the owners of the copyright. CAL collects photocopy fees from educational institutions and redistributes the money to the relevant copyright owners, the authors and publishers which it represents. The educational institutions involved

are monitored periodically by a sampling system which means that each individual

institution would only have to keep records for a fixed period approximately every ten years. Upon identification of what is copied, CAL provides remuneration to the

owners of the copyright. If the copyright owner is not already a member of CAL, they

are invited to become one, at no cost, and so receive the monies payed to CAL

through the licence fees. In an undated pamphlet called 'What is CAL?' they state that

"In 1993 approximately nine million dollars is allocated for distribution to authors and

publishers in Australia and overseas".

12 'What is CAL?' pamphlett issued by the Copyright Agency Limited, 157 Liverpool Street, Sydney, n.d.

8 CAL divides educational institutions into profit and non-profit institutions, with educational institutions which offer profit-making courses paying higher licence fees than non-profit educational institutions. CAL has just begun, from mid 1993, to offer a licence scheme to Commonwealth Government departments. This scheme is expected to extend to State Government departments. 13

The effectiveness of CAL must equate to how truly representative its clients are of the universe of copyright holders. Payments are only paid to members of CAL. Although

membership to CAL is free, copyright owners may not be aware that they have to

become members to receive remuneration unless approached by CAL as a result of the

discovery that their work has been copied. The periodic sampling procedures used by

CAL may not provide a true representation of what is actually copied. CAL must

therefore be careful, as a monopoly, to avoid giving an impression of being totally

representative when in fact it may not be.

The role of the photocopier in formulating legislation

The role of the photocopying machine has had much to do with the progression of

laws toward the restrictive regulations which contribute today to the frustration of

special librarians. In 1900 a machine was invented by Rene Graffin which was

essentially a camera fitted with a prism. This camera made copies onto bromide paper

and was specifically invented for copying pages from books. The production of the

first photostat machine began in 1905 and in 1910a different variation was produced

at Eastman Kodak. By 1912 the Library of Congress and the New York Public Library

had both installed photostat machines. These photostat machines were the forerunners

13 As at the time of writing, a 'corporate' licence for different types of organisations - accountancies, law firms, corporations etc. is also being developed by the Copyright Agency Limited. It is currently at a draft stage, and is proceeding with advice from interested parties, including libraries. According to the pamphlett titled 'What is CAL?' this licence agreement will allow companies to "distribute copies to employees and/or clients"

9 of the photocopying machine, which was invented by Chester F. Carlson and perfected in 1938.14 Carlson called the process xerography. Although initially rejected by twenty companies, including IBM, Carlson's invention took off in 1944 when a company named Haloid expressed interest. Haloid later changed its name to Xerox and in 1950

Xerox machines began to be produced. However it was not until 1960 that the first copiers in the form we know them today were produced, and in the 1970's when

Xerox lost their monopoly on the production of photocopiers, the floodgates were opened.

In 1974 Mr Justice Franki was appointed chair of a committee formed by the Federal

Attorney-General to ".. examine the question of the reprographic reproduction of works protected by copyright in Australia and to recommend any alterations to the

Australian copyright law.." 15 The extent of this investigation reflected the huge impact that photocopiers were already beginning to have on libraries. The Franki

Report was the most farsighted and intelligent report to influence the shape of the

Copyright Act. With its learned and sympathetic approach to a subject for which a judicial application is not easy, the report helps to explain exactly why special librarians are in the position in which they find themselves today.

The Franki Report.

This very readable report, which resulted in major amendments to section 49 of the

Act, gives the reader much insight into the thinking of the time about copyright law, photocopying, and libraries of the 1970's. It begins with a recognition of the extent to which technology has advanced and the need for a new set of rules: "Equipment for

14 Sawyer, M. E., 'The Photocopying Machine: How Did it Begin?', Law Library Journal,12, 1979. pp. 91-98.

15 Copyright Law Committee on Reprographic Reproduction. Report of the Copyright Law Committee on Reprographic Reproduction, Canberra: AGPS, 1976. p. 3.

10 facsimile copying of high quality that enables copies to be made easily and cheaply is now widely available .... without having to resort to laborious methods such as copying by hand or typewriting... Those methods set their own quantitative limitations on the amount of material that might be copied". 16 It is interesting to note the use of the terms 'reprographic reproduction' and 'facsimile copying' to mean 'photocopying'.

In today's terminology, the term 'facsimile copying' would often be taken to mean something completely different.

The committee made a valid point, and one that is not clear when reading the legislation, that: "... most photocopying of material in copyright which takes place is of material which might broadly be called material of a educational, scientific or technical nature. By this we mean material not produced for strictly literary, artistic or recreational purposes but material written for the purpose of conveying information...

We are satisfied that there is negligible copying from short stories, novels and other works of fiction.." 17 In addition: "... it seems clear that by far the greatest amount of photocopying performed by librarians is in relation to articles from journals and again, by far the greater number of the articles copied is from journals which were not published in Australia". 18

These are important points. One submission from the CSIRO estimated that in the previous ten years 2 million papers per annum were published in the scientific field alone. The committee observes that: "We are also of the opinion that, of the technical material copied from journals, very little has been written by the author with the object of earning money directly from the publication. In most cases we are satisfied that the author wishes to disseminate his ideas as widely as possible and would not want to

16 ibid., p.9.

17 ibid., p.ll.

18 ibid., p.33.

11 restrict copying, whether remunerated or not". 19 This was reinforced by submissions from both the CSIRO and the Institute of Engineers, who were adamant: "It was forcibly put that such articles were written for the purpose of disseminating information, for the purpose of the author achieving status in his profession or a higher degree or to present the results of some funded research".20 Further: "We were told that most writers of scientific or technical articles in journals were pleased if their articles were copied and, indeed, the Institution of Engineers pointed out that is would be a much more economical way of disseminating the information which it was endeavouring to put out through its journals if libraries, at no cost to it, would provide copies of articles appearing in its journals. We feel that, so far as concerns articles of a technical and scientific nature, there is a great public need for copies to be available without undue restriction". 21 This finding seriously erodes both the creative and economic arguments currently put forth by the Australian Copyright Council which must carry little weight outside strictly literary or artistic areas.

In its investigation of the fair dealing doctrine, which allows limited copying for the purposes of research or study, the Franki report did not attempt to define any measure of substantiality, because of the difficulties in providing any precise test which would meet all circumstances. In addition, and in spite of many submissions requesting action, the committee felt that"... it would be unwise to attempt any exclusive definition of the words 'fair dealing'..".22

The report discusses the articles in the international copyright conventions which relate to reprographic reproduction. These include Article I of the Universal Copyright

19 ibid., p.ll.

20 ibid., p. 33.

21 ibid., p. 33.

22 ibid., p. 29.

12 Convention and Article 9 of the Paris Act which is incorporated into the Berne

Convention. The report also usefully summarises foreign legislation and notes that, universally, "The dividing line between the area of permitted use and of the infringement of copyright is normally drawn between the non-commercial and commercial use of copyright works.."23 It is interesting here to note that in Japan:

"Article 30 of the Copyright Act of 1970 permits a user to reproduce by himself a copyright work for the purpose of his personal use, family use or other similar uses within a limited circle, without compensation to the copyright owner".24 What today's special libraries would give for such permission!

Although the Franki Committee provided a vital chance to have input into legislative amendments, few special librarians took advantage of it by providing submissions.

There was a submission form the Library Association of Australia, but there was nothing in this submission that related specifically to special libraries beyond mentioning the increasing cost of journals, with subscription costs rising in the order of 17 to 20% per year, and that there were "... approximately 1000 special libraries attached to commercial firms, learned societies, professional associations and government departments". 25 One good submission came from the Australian Law

Librarians' Group who "... submitted that legislative instruments and judgments

(except headnotes and editorial notes) should be exempted from photocopying restrictions".26 As Franki commented: "We did not receive many submissions from individual persons concerning the making of copies for research or private study, but those who did make submissions were unhappy with the delay and inconvenience of filling in forms where this practice was adopted".27 In addition: "The Committee

23 ibid., p. 67.

24 ibid., p. 69.

25 ibid., p. 98.

26 ibid., p. 58.

27 ibid., p.27. 13 received very little comment on copying in the business, professional and government sectors".28

The section of the report that has specific regard to copying in the business sector is brief, less than half a page. It begins with the note that: "Copying for the purposes of dealing with scientific, medical, technical and other problems is important to these sectors and useful in maintaining and improving the standard of living in Australia".29

Then follows a noting of the provision in section 18 that a library within a for-profit organisation is not necessarily itself conducted for profit. But what is of particular interest is what follows: "We gave very careful consideration to recommending an extension of the permitted copying by commercial and industrial enterprises for what is often called internal use. Since we could see no prospect of the satisfactory operation of any statutory licensing scheme which would provide remuneration to copyright owners, including authors, in respect of copying within this category, we were faced only with the option of recommending an extension of unremunerated copying. Although we appreciated the importance to the community of not inhibiting the free flow of information we felt, on balance, that we should not recommend any specific concessions in respect of unremunerated copying in the business sector".30

The committee recognised that the impracticalities of installing a licensing scheme applied not only to business but also to government libraries. They did not foresee the setting up of the Copyright Agency Limited for a licensing system that now extends to government libraries, but time may prove them correct.

The development of copyright laws has not been without contention or criticism.

Lahore, the acknowledged Australian authority on copyright, points out that "The

28 ibid., p.56.

29 ibid., p. 56.

30 ibid., p. 56.

14 history of copyright legislation from the first Statute in 1709 until the comprehensive

Imperial enactment of 1911 is one of numerous piecemeal Acts which are complex and inconsistent".31 The copyright laws of the United Kingdom, on which Australian copyright laws are based, have been criticised as not a model of clarity"32 and called

"...a jumble of law". 33 In his opening address at the recent Asian-Pacific Specials, Law and Health Conference held in August 1993, Federal member of parliament Barry

Jones, called copyright laws "an absurdity". Amendments to the Australian Copyright

Act of 1968 were spoken of by O'Connell as: "... a hodge-podge of sections and sub sections that seem to reflect every claim and counter claim made to the officers of the

Attorney General's Department. They are a mish-mash of ideas without any order or purpose..". 34 At a seminar held by the Australian Copyright Council in July 1993, one of their legal officers called the Copyright Act a "Truly appalling complicated piece of legislation". These are the laws which special librarians must, without legal knowledge, be absolutely clear because of the penalties they may incur personally if convicted of infringements.

31 Lahore, J. Intellectual Property Law in Australia: Copyright. Sydney: Butterworths, 1977. p. 27.

32 Weil, B.H. 'Copyright from the perspective of information users and their intermediaries, especially librarians', The Serials Librarian, Vol. 15, No's. 3/4, 1988, p.27.

33 Cornish, W.R., 'Photocopying, libraries and the Copyright Law of the United Kingdom', International Journal of Law Libraries, Vol. 4, No. 1, March 1976. p.29.

34 O'Donnell, G.C., A Short Note on Anti-Copyright, Leksand Press, Wollstonecraft, 1985, p. 62.

15 III. PHOTOCOPYING IN LIBRARIES

Protection for literary works

The fundamental basis for protection under copyright laws is not merit or literary excellence but the simple existence of the originality of the effort put into the work by the creator. In section 10 of the Copyright Act 1968 35 artistic work is called such

"...whether the work is of artistic quality or not". The same section states that literary works can include "... a table, or compilation, expressed in words, figures or symbols.."

Thus a membership directory could have as equal a right under copyright law as the works of Patrick White.

There is no requirement for an application for copyright in Australia; it exists at the moment the work is created. In the Australian Copyright Council's pamphlet

'Copyright in Australia', it is pointed out that "Although the copyright notice 36 is not required for protection in Australia it is advisable to place the notice on all copies because it operates as a warning that the work is protected and identifies the person claiming the rights. Copyright owners can put the notice on their work themselves - there is no formal procedure".37

Copyright generally belongs to the creator. However, if the work is created by a person who created that item as part of their employment, then the copyright can belong to the employer. For example, if the work is a published book or a journal article, then the copyright belongs to the author. But if the material is a contents page of a book or article, created at the publishing house, then the copyright generally belongs to the publisher. For any book published after May 1969 the publisher also

35 Australia. Copyright Act 1968. Reprint No. 5 as at 31 July 1991.

36 That is, the copyright symbol of a small c enclosed in a circle, together with the name of the owner of the copyright and the year the material was first published.

37 Australian Copyright Council. Copyright in Australia, p.3

16 owns copyright in the way the work has been set out. An author can sell his or her rights to a publisher: "Copyright is like any other form of property; a copyright owner can sell (or assign) his or her rights".38 Therefore, copyright is an asset and if a company is wound up the copyright can be distributed with any other company assets.

protected and may be copied. The length of time varies according to the item. A good

breakdown of copyright duration periods can be found in the Australian Copyright

Council's "A User's Guide to Copyright".39 In academic libraries much of the material

photocopied is for research purposes and may no longer be protected by copyright.

The users of special libraries, however, are generally not interested in works which

have lasted beyond the period of copyright, but are interested in current information in

currently published works. They need this information in order to stay abreast of

developments, and often in order to get ahead faster than their competitors. Fielding

recognises the problems that exist for special libraries that are not part of educational

institutions: "... the law is broken every day by organisations ... which need to

disseminate copies of articles to brief their employees on new developments".40

Photocopying in libraries in educational institutions

Under the Copyright Act, an educational institution is an organisation that is a school,

college, university, teaching hospital, or similar, that is not conducted for the profit,

direct or indirect of an individual or individuals. The same provisions in the Act that

apply to educational institutions also apply to organisations assisting handicapped

38 Australian Copyright Council. A User's guide to copyright. Bulletin 174. Revised 1992. Australian Copyright Council, Sydney, 1991, p.16.

39 Australian Copyright Council. A User's guide to copyright.

40 Fielding, F.D.O., Copyright in Australia, now and in the future. Proceedings of the Australian Library and Information Association 1st biennial conference, Perth: ALIA, September 30 - October 5, 1990. p. 620.

17 readers. An organisation can be declared to be an educational institution, or an institution assisting handicapped persons, by the Commonwealth Attorney-General publishing a notice to that effect in the Commonwealth Government Gazette.

Libraries in educational institutions have a long history of action and participation in copyright legislative processes. In the case of University of New South Wales v

Moorehouse and Angus & Robertson (Publishers) Pty. Ltd. Gibbs, J. pointed out that:

"... a person, who has under his control the means by which an infringement of copyright may be committed, e g. by a photocopying machine, and who makes such means available to other persons, while knowing or having reason to suspect that such means may be likely to be used for the purpose of committing an infringement, and omitting to take reasonable steps to limit such use to legitimate purposes, is to be considered as authorising any infringement that may result from the use of such means.."41 A direct result of this finding was the insertion of section 39A into the

Copyright Act by the Copyright Amendment Act of 1980 which allowed librarians to absolve themselves of the responsibility for users' use of photocopiers to breach the law by displaying an appropriate notices by the photocopiers, but only as long as the librarians could continue to be themselves unaware of the breach.

The Australian Vice-Chancellors' Committee has been quite outspoken about the laws on a number of occasions. The law relating to educational institutions allows a freer rein with regard to photocopying, based on voluntary agreements reached between them and the Copyright Agency Limited after what were prolonged and bitter disagreements. These agreements have provided the basis for changes to the copying provisions of the Act made through amendments in 1989. Educational institutions are now covered by the extensive and detailed Part VB of the Act.

41 University of New South Wales v. Moorehouse and Angus & Robertson (Publishers) Pty. Ltd. (1979) 49 ALJR 269.

18 Photocopying in Government libraries

The situation for government librarians is less clear than that for librarians working in educational institutions. In works commissioned by the Commonwealth or any State

Government, the copyright is held by the Crown. However, it is possible for the author to retain copyright if this is agreed to beforehand. Section 7 of the Copyright

Act states that although the act binds the Crown, nothing in it renders the Crown liable for prosecution. Section 8A covers prerogative rights of the Crown in the nature of copyright and section 183 relates to the use of copyright material for the services of the Crown. This latter section allows the Commonwealth or State to use copyright material "..if the acts are done for the services of the Commonwealth or State"

However, subsection (4) states that the Commonwealth or State, after using the copyright material "..shall, as soon as possible,... inform the owner of the copyright, as prescribed, of the doing of the act and shall furnish him with such information as to the doing of the act as he from time to time reasonably requires" and the terms are then agreed upon. The "Crown" has been rather vaguely defined by the Australian

Copyright Council as meaning "... the State and Federal governments and includes government departments, but not (generally) independent statutory authorities such as the National Library or the Australian Archives (unless they have been authorised in writing by a government representative.)".42

The case of Copyright Agency Limited and Others v Haines and Another43, although related to educational institutions, clarified the complexities of copyright law, at least to some extent, on multiple copying by government librarians. "For example, section 183 would apply in the situation where a government officer is copying an article to advise the Minister or Head of a Department. On the other hand section 49 would apply to

42 Australian Copyright Council, Copying in Government Libraries, Bulletin 52 - insert. Australian Copyright Council, Sydney, 1991, p. 1.

43 [1982] 1 NSWLR 182.

19 copying in the situation where a government officer (such as the department's librarian) is supplying a copy of an article to a member of the public for research". 44

A few years ago the Copyright Agency Limited put a proposal to the Attorney-General whereby government departments were allowed to make copies of individual items, or multiple copies, and pay equitable remuneration to them as a collecting agency as is the case with educational institutions. In November 1991 it came to the notice of the

Federal Attorney-General that the Copyright Agency Limited (CAL) had "... begun to bill a number of Departments and Statutory Authorities for photocopying of print materials (in particular newspapers) which they have undertaken". The Attorney-

General had to write to these libraries and warn them that: "... no rate of payment has yet been negotiated with CAL or set by the Copyright Tribunal in respect of photocopying by the Crown", and asking them to provide "... copies of any invoices that you receive from CAL and of any responses made to CAL".45 A copy of this letter was sent from ALIA Special Libraries Section in Canberra to all ALIA Special

Libraries groups requesting further dissemination of the letter. It was not until July of

1992 that a press release announced that the Attorney-General had reached agreement on royalty rates to be paid for the Government photocopying of print copyright materials. By mid 1993 the arrangements regarding copying and payment had only just begun to take place.

Photocopying in special libraries.

Because of their size, large libraries offer greater potential for the copying of copyright materials, and any problems that are likely to arise from this must be dealt

44 Australian Copyright Council. Copying in Government Libraries, p.3.

45 Australia. Attorney-General's Department. Copyright Act 1968: Crown Copying: Invoices from Copyright Agency Limited (CAL) . Letter to 17 Commonwealth Government Departments. 5 November 1992.

20 with at a senior level. Staffing structures in larger libraries mean that there is more likely to be a manager who has the responsibility, time and resources to formulate and implement policies regarding copyright issues. These policies are recognised and supported by the parent organisation. The dissemination of information arising out of such policy making can be seen by the publication of works which alert librarians to procedures and forms for use in order to conform to the Copyright Act, such as the

University of New South Wales publication46 which was a response to the Copyright

Amendment Act No. 15 of 1980. Although this approach is not uncommon in the public sector, such responsibilities are rarely recognised or supported by the parent organisations in the private sector. Head librarians in small special libraries generally work as part of a busy team and often do not have the time to spend on in-depth problem solving in specific areas.

Special libraries are the central deposit for information acquired by an organisation for the purposes of enhancing the working of that organisation. Because there is generally only one library and many users, a common method of distribution of information is through photocopying. If the library's parent organisation created the work, then it owns the copyright and photocopying can be done without infringing the law.

However, the material that is photocopied is more likely to be from work published by someone other that the library or its parent organisation. Sections 40 to 43 of the

Copyright Act make it possible to photocopy material for the purposes of research or study, for criticism or review, for reporting news, for judicial proceedings or for professional advice by a legal practitioner or patent attorney. All photocopying under these sections must, with the exception of that for judicial proceedings, constitute what the Act calls 'fair dealing'. This is not precisely defined in the Act, but section 49 does allow copying of an article in a periodical publication (or two if they are on different subjects) or a 'reasonable proportion' of any other work. A 'reasonable

46 University of New South Wales, The Implications for libraries of the amendments to the Copyright Act, Sydney, 1981.

21 proportion' is given (without limiting its scope) in section 10 (2) to mean equal to or less than 10 per cent or one chapter of a work published in an edition of 10 or more pages. More than this may be allowed under section 49 (5) if the work is part of the library collection and if another copy cannot be obtained within a reasonable time and

at an ordinary commercial price. Reliance on these sections as a defence in the event

of proceedings will not be available to the party, according to section 203H (1) if they

have not made a notation or stamp on the copy stating the name of the organisation which made the copy and the date the copy was made. The purpose of the fair dealing

clause, not only in Australia but in the United Kingdom, the United States of America

and Canada, is to attempt "...to balance the rights of the owners of copyrighted works

to their just economic rewards against the rights of scholars and researchers to use

these works conveniently in their scholarly endeavours".47

Unfortunately, many organisations want their librarians to photocopy more than is

allowed under the Copyright Act. The librarian in charge of a special library may not

be in a position to argue if asked to produce photocopies, since an enforced

application of copyright laws could lead to dismissal. If there is a sign on or near the

photocopier in accordance with section 39A of the Act then neither the parent

organisation nor the person in charge of the library is guilty of an infringement if the

photocopier is used unlawfully without the knowledge of the librarian. However, the

librarian may be aware of an infringement occurring if the photocopying is done for an

extended period and so near to them that they must be aware that extensive copying of

an item is being done. If this is the case, then the person who has responsibility for the

library, (i.e. the librarian, who is seen to authorise the photocopying but doesn't

necessarily do it), as well as the person to whom the librarian reports, may be guilty of

an infringement of copyright and liable for fines of up to $500 for an individual or

$2,500 for a body corporate, regardless of whether there is a warning notice above the

47 Marke, J.J., 'Photocopying and the Copyright law in the United States', International Journal of Law Libraries, Vol. 3, 1975, p. 191.

22 photocopier or not. If there is more than one article to which the offence relates the fine is $50,000 for an individual or $250,000 for a body corporate. Fines of $500 are also applicable to those unfortunate enough not to keep relevant declarations for the prescribed retention period of four years, or who do not keep these declarations in chronological order by the date of the declaration. These are not civil sanctions; violation is a criminal offence. Lahore 48 very properly objects: "... the imposition of criminal liability on bodies administering institutions and on employees of those institutions to secure proper record keeping places a heavy and unjustifiable burden on those institutions".

Although some clarification is available for both government and institutional libraries, the law is not completely clear on the status of special libraries as 'libraries' under the act. For instance, section 49 covers copying by libraries for users, and subsection 9 states that ".."library" does not include a library that is conducted for the profit, direct or indirect, of an individual or individuals". So one might imagine that a law firm/architects/consultants' library, which provides information for which the client is ultimately billed, is conducted for the profit of the owners and is therefore not a library for the purposes of the Act. However, section 18 states that"... a library shall not be taken to be established or conducted for profit by reason only that the library is owned by a person "carrying on business for profit". Furthermore, the Australian Copyright

Council advises that the library itself must be conducted for profit if section 49A is to apply and that it does not matter if the library is part of a profit-making firm. However, it is difficult to see libraries which pass costs on to clients as not contributing to the firm's profit. This fact of commercial gain worked against Neville Jeffress Pidler Pty.

Ltd.49, a media monitoring service which supplied press clippings to clients for a fee. In this case NJP relied on section 40 with its emphasis on fair dealing for the purpose of

48 Lahore, J., Photocopying: A Guide to the 1980 amendments to the Copyright Act. Butterworths, Sydney, 1980, p.2.

49 De Garis and Another v Neville Jeffress Pidler Pty. Ltd. 18 IPR 292 (1990)

23 research or study. However, it was clear that the research or study was undertaken by

NJP's clients and not by NJP itself, who were a profit-making organisation, and it was concluded that NJP was not protected by the provisions of the Act.

All of the difficulties and issues discussed here raise questions about what is the current status of and attitudes to photocopying in special libraries.

24 rv. RESEARCH FINDINGS FROM THE LITERATURE

The impact of photocopying on copyright laws is a technological phenomenon, and the chronology of the six surveys which are discussed here, covering as they do the period between 1962 and 1992 coincides with the growth of copying technology.

A landmark survey, apparently the first of its kind, was conducted by George Fry &

Associates in 1962, before many of the photocopiers as we know them were available.

Even so, it was estimated that at that time 300 million photocopies were produced every month throughout America. The term used was 'photo duplication', and incorporated the Diazo, diffusion transfer, Verifax, thermography, and electrostatic processes. The Verifax process was marketed by Eastman Kodak and the electrostatic process by Xerox Corporation. The survey's emphasis on photo duplication was caused by some preliminary investigations which found that "...it is in this area that the greatest misunderstanding and potential problems exist". 50 In spite of these problems, the survey conducted by George Fry & Associates found that "Without exception, all librarians in the survey were aware of the law, although their knowledge varied considerably".51 With copyright law relating to photocopying in its infancy, librarians had often to consult"... their company's legal counsel for information about rulings applicable to company practices. It is significant that no two legal opinions were in exact agreement". 52

The survey found that "The basis objective of the author of scientific articles and books is to disseminate information", that "The publication and dissemination of such information has not only an altruistic goal for the progress of science, but also serves

50 George Fry & Associates, 'Survey of copyrighted material reproduction practices in scientific and technical fields', Bulletin of the Copyright Society of the U.S.A., Vol. 11, No. 2, 1963, p. 75.

51 ibid.., p. 110.

52 ibid.

25 to enhance the prestige of the author”, and that "The vast majority of authors surveyed consider photo duplication of their articles for distribution to constitute either a definite advantage, or to be of no concern".53 Photocopies of journal articles were particularly in demand: "From the usage standpoint, librarians in industrial organizations (where some people feel that copyright violation is most flagrant) are unanimous in reporting that it is journal, and not book, material which is in constant demand and, therefore, it is subject to extensive facsimile duplication".54 However,

Fry did not consider that this adversely affected the publishers. "With the exception of a few specialized instances, there is no evidence to indicate that current copying practices result in a significant dilution of the commercial publisher's market for subscriptions. Several publishers and librarians indicate that duplication may actually stimulate subscriptions to a given journal over a period of time". 55 On the other hand,

George Fry & Associates warned that a future scenario might be different:

"Awareness of the Copyright Law restrictions by librarians and others has served as a check to rampant multiple copying, which, if uncontrolled, could result in significant economic damage to publishers. Nearly all multiple copying now practiced appears to be more a matter of convenience for the users rather than an attempt to bypass the traditional rights and markets of the publisher, author, or other copyright owner". 56

Over the next 30 years and parallel with the improved technology came important developments for librarians. There was the 'information explosion' resulting in a situation which exacerbated publisher discontent. In addition "Library photocopying was also increasing as the result of the appearance of more and better indexing services, publications of journal article abstracts, and bibliographic databases, such as

53 ibid, p. 81.

54 ibid., p. 85.

55 ibid., pp. 71-2.

56 ibid pp. 72-3.

26 the national Library of Medicine's Medline database". 57 U.S. legislation failed to keep up with the emerging technology and librarians found it difficult to know exactly what their legal obligations were. The problems of coping with dated legislation was not confined to the U.S. These were recognised by the Economic Council of Canada in

1971 when it noted that an "...unreasonable burden is being thrown on the consciences and amateur legal expertise of such people as librarians and copying-machine operators". 58 There was to be no legislative solution in the United States for some years. Tepper 59 states that it was not until the Copyright Revision Act of 1976 that

"... Congress finally stepped into the breach to deal with the problems posed to copyright law by ever-improving copying technology".60 An American lawyer sympathises: "In the meantime, the troublesome issues presented by new technologies were left to the courts". 61

A major development occurred in the form of the 1973 case of Williams & Wilkins

Co. v United States 62, which is one of the most important in U.S. copyright case law.

This case involved photocopying by scientists at the National Institute of Health and the National Medical Library, and the court initially found that the defendants had infringed copyright. This decision was later taken to an appellate court where it was narrowly reversed by a seven judge panel with four in favour of a reversal and three

57 Tepper, L. C., 'Copyright Law and Library Photocopying: An historical survey. Law Library Journal, Vol. 84, 1992, p. 348.

58 Economic Council of Canada. Report on Intellectual and Industrial Property, Information Canada, Ottawa, 1971 as cited in Hopkins, R. 'Copyright: complexities and concerns', Canadian Library Journaiyol. 44, No. 5, October 1987, p.273.

59 Laurie C. Tepper wrote a master's paper for the University of North Carolina School of Information and Library Science which provided an historical survey on copyright law and photocopying. As an historical survey, it is only mentioned briefly here but is covered more fully in Appendix A.

60 Tepper, op. cit., p. 347.

61 Young, J.E., 'Copyright and the new technologies - the case of library photocopying', Copyright Law Symposium. Number twenty-eight.Columbia University Press, New York, 1982. p. 61.

62 (487 F.2d. 1345 (Ct. Cl. 1973))

27 against. In this appeal the court stressed that freedom from the "taint" (at 1354) of

commercial gain was essential to its finding that the copying was 'fair use'. In fact, there was a strong implication that the finding would have gone the other way if there

had been any motive of commercial gain. It is interesting to note that the defendants in

that case, the National Library of Medicine and the National institute of Health had in

their possession approximately one hundred thousand photocopies of articles per year

from journals. This landmark decision, typifying the struggle between publishers and

libraries over copyright, was later affirmed in the United States Supreme Court 63,

albeit with an equally divided court. The court found that not only would research in

medical science be hampered by an inability to photocopy, but that there was no

financial harm to the publisher from the copying.64

Against this background librarians began to investigate for themselves the extent and

nature of photocopying in special libraries. Alarmed by the recent decision in the

Williams & Wilkins case and by the appearance of the Copyright Revision Bill after

decades of inactivity by Congress, the Special Libraries Association's 1976 survey 65

appeared to make a hurried attempt to assist special librarians in their submissions to

Congress while at the same time find out the extent of photocopying in their member

libraries to see if in fact there was anything to lobby about. 66 This survey, along with

63 Williams & Wilkins Co. v. United States (420 F.2d. U.S. 376 (1975))

64 A later case, and one of continuing importance was that of American Geophysical Union v Texaco (802 F. Supp. 1 (S.D.N.Y. 1992)). where six journal publishers sued Texaco for illegal photocopying by their scientists. It took the court seven years to find that there had been a copyright violation. The Texaco decision differed from that of Williams & Wilkins because although copying was being done for the advancement of science, it was also being done in order to increase Texaco's profits. This finding is thought by the American Association of Law Libraries, the Association of Research Libraries and the Special Libraries Association to be an important one for librarians as it is seen to oppose the doctrine of fair use and they are to file an indication of their concerns to the U.S. Court of Appeals. This case continues to be the subject of much discussion among American librarians and was the subject of a seminar (called 'The Copyright Dilemma: is there life after the Texaco decision?') held in October 1993 in San Francisco by the Special Libraries Association.

65 Special Libraries Association, 'Survey of photocopying procedures in special libraries', Special Libraries, Vol. 67, Nos/ 5/6, May/June 1976. pp. 271-274.

66 A letter accompanying the SLA survey stated: "... with the prospect of continuing Congressional activity on the proposed Copyright Revision Bill, the SLA Special Committee on Copyright asks that 28 those by Patricia Whitestone (1977), Francois Hebert in Canada (1987); and Lee

Nemchek (1991) in the United States, found that there was indeed a growing problem.

The Special Libraries Association's survey of photocopying procedures in special libraries had three hypotheses: 1. That data on photocopying would not be held because libraries did not have photocopiers located in their libraries and would not be aware of what was copied; 2. That the policy of parent organisations frequently does not allow employees to answer questions about internal operations, and 3. That many questionnaires would "go into the waste-paper basket".67 7,200 questionnaires were mailed to members of the Special Libraries Section. Of these, only 1,300 or 18% were returned, proving the validity of the third hypothesis to the satisfaction of the researchers.

The findings showed that periodicals were more frequently copied than any other item, with 62% of libraries copying between 1 and 1,000 pages per month of in-print periodicals, confirming the earlier findings of George Fry & Associates. Currency of information, then as now, was of great importance.

The survey also found that 52% of American and Canadian special libraries had photocopiers installed in their libraries, and that it was generally the librarians that did

you complete the enclosed questionnaire for use in preparing a plan of action ... The data you supply may be instrumental in reaching agreement in an area of the copyright law revision controversy that has now spanned a decade... The importance of this survey has been increased by the decision handed down by the U.S. Court of Claims in The (sic) Williams and Wilkins vs. The United States... Failure to respond to this survey may be the last chance that you will have to shape legislation in the interests of efficient service by or for special libraries". However, the SLA at the same time admitted to the "major obstacle" of not having "'hard' quantitative data on what materials are presently copied by or for special libraries, and in what amounts, and whether the originals are still under valid copyright". Special Libraries Association, Special Libraries, p. 274.

67 Special Libraries Association, op. cit., p. 271.

29 the copying. One quarter 68 of American special libraries in 1976 only allowed their own staff to operate the photocopiers, and the majority did not charge for their photocopying 69.

A year after the Special Libraries Association's survey, another was conducted in 1977 by Patricia Whitestone. The Whitestone survey aimed to "...elicit, through questionnaires and interviews, an accurate picture of the current extent and significance

of library photocopying".70 In order to do this, Whitestone mailed a questionnaire to

280 libraries all over America and Canada, to which 138 libraries responded - a response rate of 51%. Responding libraries were guaranteed complete anonymity,

since Whitestone recognised photocopying by libraries as "a touchy issue".71

Whitestone summarises the reason for her survey: "The library photocopying problem arose when man's use of technology, in the form of the automatic copier, and the library's desire to provide better service to patrons began to conflict with the property rights of copyright owners. This contretemps resulted in an historic suit (Williams &

Wilkins v the United States) but was never fully resolved by the courts".72

All of the libraries surveyed by Whitestone were large, selected on the assumption that large libraries would be more likely offenders of copyright laws. The 50 special

libraries chosen were selected because they had substantial special collections serving

various types of large organisations. The survey categories for collection size ranged

from 0 - 500,000 volumes to 4 - 5.5 million volumes. 95.5% of special libraries fell,

not unnaturally, into the lowest range. All libraries in all categories had at least one

68 Special Libraries Association, op. cit., p. 272.

69 Special Libraries Association, op. cit., p. 272.

70 Whitestone, P. Photocopying in Libraries: the librarians speak, Knowledge Industry Publications, White Plains, New York, 1977. p.4.

71 ibid., p.4.

72 ibid., p. 6.

30 photocopier, with 45.5% of special libraries having between one and two machines.

Because the survey was aimed at large libraries, much of the data was of limited use for the purposes of this thesis. Although some 'smaller libraries' were the subject of interviews, these were mainly public libraries, with no data published for the single special library mentioned. Overall, the survey found that periodicals were more heavily copied than any other published material. However, it also found that the majority of photocopies were done of journals for inter-library loans rather than for the library's own patrons - a factor which is significantly different for special libraries. Ten cents per page was the most commonly charged fee for photocopies. A common factor however, seemed to be in the: "... dearth of comprehensive recordkeeping by librarians on photocopying, for reasons ranging from fear to lack of a central authority with the library". 73

Whitestone notes that while many libraries received dramatic budget cuts in the mid

1970's, photocopying continued to accelerate. She does not mention that this is a common occurrence when subscriptions cease in any library. Whitestone also notes that the increasing number of periodicals published meant that libraries had to seriously consider sharing resources to allow smaller budgets to purchase collections representative of the total publishers' output.

Whitestone found that 30% of the librarians surveyed thought that they should be free to make a single copy of anything74, and concludes that"... photocopying is an integral part of current library operations". 75 "The basic feeling gleaned from interviews conducted for this report was that librarians felt that they provide needed information to the public, and therefore should be free to photocopy materials in order to fulfil this

73 ibid., p. 74.

74 ibid., p. 51.

75 ibid., p. 94.

31 mission".76 Whitestone concludes: "While the actual extent of library photocopying is difficult to measure, partly because of libraries' own inadequate recordkeeping, there is every reason to assume that photocopying by libraries will continue to grow.."77

Francois Hebert's 1987 Canadian study took place ten years after Whitstone's 1977 survey and was conducted in order to "...estimate the volume, nature and configuration of photocopying in academic, public and special libraries in Canada, and to analyse copying policies and practices". 78 Special libraries covered by the survey included those from federal government and provincial government sectors. It also included those which existed to provide information services to commercial or for- profit organisations as well as those which catered for non-profit organisations.

Hebert noted the transition from the days "A generation ago, patrons consulted works in the library collection, took notes to summarize information, and laboriously copied the sentences intended for later quotation". 79 Because of the total lack of legislative guidance for any form of reproduction, Hebert did not restrict his study to the use of photocopiers, but covered all types of copying equipment, including microform cameras, microform reader/printers, facsimile transmission senders/receivers, VCRs and computer printers.

The 1,724 special libraries covered by the survey represented 48% of all libraries in

Canada. Of these 1,724, 1,506 or 87% had photocopiers "located on their premises".80

Nationally, this meant that special libraries had 34% of all photocopying machines.

76 ibid., p. 96.

77 ibid., p. 91.

78 Hebert, F., Photocopying in Canadian Libraries: report of a national study, Canadian Library Association, Toronto, 1987. p.l.

79 ibid., p.5.

80 ibid., p.21.

32 The survey also found that, in terms of national estimates, special libraries also accounted for " ... 38 per cent of exposures". 81 In spite of the large amounts of copying done by special libraries, the survey found that 92% of special libraries did not have a written copying policy. Special librarians were asked if their library posted "... copyright notices on or near photocopying machines".82 The survey found that 86% of special libraries did not post copyright notices on or near their copying machines.

The use of new technologies for copying, although much advanced in terms of speed and reduced cost, still did not affect the legal interpretation of what exactly constituted

"any fair dealing ... for the purposes of private study, research.." as defined in section

17 (2) of the Canadian Copyright Act. Librarians had to rely very much on case law to determine what fair dealing had been defined to be by the courts at any one time.83

Hebert's study, although it must have been eagerly anticipated by librarians at the time, did little to address this problem.

In 1991 Lee Nemcheck analysed the results of a survey of 116 law firm libraries in

Southern California. The survey was designed "to illuminate varying degrees of compliance and noncompliance with the existing laws, both at the library level and at the firm management level".84 Stating that "Statutory language notwithstanding, the issues of which photocopying practices are legal and which are illegal in the library context are far from clear-cut, and librarians have been confused from the outset"85,

Nemchek hypothesised that few law firms would have written copyright policies.

81 ibid , p.2.

82 ibid, p.73.

83 This is also the case in Australia, the United Kingdom and America where it is considered impossible to precisely define fair dealing and it is up to the courts to consider the application of the doctrine to each individual case.

84 Nemchek, L.R., 'Copyright Compliance by Law Firms (17 U.S.C.s 108): an ethical dilemma for librarians.', Law Library Journal, Vol. 83, 1991. p. 660.

85 ibid, p 654.

33 Nemchek's survey of 116 law firms librarians resulted in a return of 82 questionnaires, a healthy response rate of 71%. Findings included the following:

- Only two respondents indicated that their law firm had a written policy

regarding copyright compliance.

- None of the respondents indicated that they stamped photocopies with a

required under the Copyright Act.)

- Only one respondent claimed to have contacted and paid royalties to

- None of the respondents paid fees to, or was registered with, the Copyright

Clearance Centre.

- 43% (35) of respondents circulated originals and tables of contents rather than

full copies of newsletters, magazines etc.

Nemchek is clearly aware of at least part of the extent of breach of copyright by lawyers: "...it is to be expected that lawyers, whose work product relies heavily upon legal research, would want to focus as little attention as possible upon themselves if, in fact, the most expedient and cost-efficient methods of researching and keeping current in their field include inconspicuous photocopying in violation of copyright laws".86 In line with these expectations, Nemchek found that"... few hard and fast rules are followed. ... photocopying requests are evaluated on an individual basis by most law firm librarians, rather than handled consistently in accordance with a firm or library policy".87

The pressure that might be brought to bear on librarians by senior lawyers is recognised: "For various reasons ... one of which may be the fear of being disciplined

86 ibid., p. 658.

87 ibid., p. 665.

34 or fired from one's job, law firms librarians have exhibited a reluctance to take up this responsibility".88 In addition, comments from the survey indicated "... an unwillingness at the firm management level to consider copyright compliance as a serious issue.."89 In spite of her recognition of this pressure, Nemchek, by her opening quote "True civilisation is measured by the extent of obedience to the unenforceable" (Lord

All of the surveys covered here showed that librarians operated under the same pressures to supply information quickly that they do today. The following comment from George Fry & Associates' 1962 survey is familiar to librarians thirty years on:

"Every scientist who comes in here asking for an article thinks that the project he is working on is the most vital thing to the success of the company". 91 In spite of her recognition of these pressures, Nemchek, by her opening quote "True civilisation is measured by the extent of obedience to the unenforceable" (Lord Moulton, 1922), places the ethical responsibility for adherence to copyright laws squarely on the shoulders of the librarian. She is clear that librarians have a responsibility for keeping up with copyright laws, for keeping both employer and employees informed about copyright laws and "... to do what is within their power, personally and professionally, to comply with them".92 Overall this is what the surveys found that librarians did,

88 ibid., p.659.

89 ibid., p. 665.

90 ibid., p. 670.

91 George Fry & Associates, op. cit, p. 105.

92 Nemchek, op. cit., p. 670.

35 even though they might not agree with the fairness of the laws. Special librarians

admitted that copyright restrictions created problems for their role as information

providers.

It is assumed that, as far as librarian's attitudes are concerned, what is the case in the

United States is probably the same in Australia and that no significant differences will be found between the findings of these six surveys and the outcome of the survey undertaken for the purposes of this thesis. It is assumed that the photocopying of tables of contents is one of the largest areas of breach among special librarians in New

South Wales. It is assumed that librarians still consider the laws to some extent unreasonable, that they still have difficulty in getting a commitment to compliance from both clients and management, and that they continue to act in a knowledgable, professional and responsible matter in spite of these difficulties.

36 V. SURVEY DESIGN

A survey was designed to provide information about photocopying practices and attitudes to copyright of Australian special librarians. The scope of the subject, the design of the survey, and a description of the subjects and the sampling technique are all discussed here, as is the pilot study and the data gathering procedures.

LIMITATIONS OF THE STUDY

Scope of subject

The copyright restrictions relating to audio-visual materials and to computer databases are interesting but quite different to those which apply to printed materials. For the sake of greater clarity in the results of this survey, and in view of the wide range of items which make up the collections in special libraries, it was decided to restrict the questions to printed material only, defined by the Copyright Act as literary works.

Although the Copyright Act does allow reproduction for the purpose of judicial proceedings93 or for the purpose of the giving of professional advice by a legal practitioner or patent attorney, the number of incidences of photocopying which would realistically fall into this category would be minimal, and thus no question was included which related to the purpose of the copying. This assumption was borne out by the results which showed that only 11% of respondents were law firms.

93 That is, not for the the purposes of arbitration of any alternative form of dispute resolution.

37 Range of respondents

The survey was limited to small special libraries. It was assumed that in these libraries all of the problems of copyright knowledge and observance of copyright requirements would be most at issue. There is a greater likelihood in large libraries that the infrastructure already exists to enable library staff to meet the requirements of

Copyright law. This means that section 39A notices are already printed and in place near photocopiers, that the library has been provided with a stamp which is routinely used on photocopies made by the library, that copyright declaration forms are a normal part of the procedure. This infrastructure has probably been instituted by some other person than the librarian in charge of a particular library in that environment. In addition, large libraries often have a dual personality in that they may be, for example, not only a special library but also part of an educational institution and in that way not bound by the narrower restrictions which apply to small special libraries. Thus it is in small special libraries that such infrastructure to meet the requirements of the

Copyright Act has not been put in place by a larger administrative body and it is generally up to the librarian to deal with them. Often, however, the librarian has limited knowledge of what is required by law and little time to pursue this. This seems to be the case in both the public and private sectors. Given these factors, the study concentrated on special libraries with total collections of less than 10,000 items.

According to section 49 of the Copyright Act, a declaration in writing from the user is always required except where the user is sufficiently remote, in which case an authorised officer of the library may complete the declaration form. No definition of remoteness is given by the Act. As the definition of'remote' might vary for different libraries from, for instance, users in the western suburbs of Sydney to users in other states, the situation of remote users was not incorporated in this study.

38 DATA GATHERING INSTRUMENTS

Subjects and sampling

The respondents were from special libraries in New South Wales. The survey was restricted to special libraries which were listed in the 8th edition of the Directory of

Special Libraries in Australia and its September 1992 update, and which had collections of 10,000 volumes or less. While this directory may not be comprehensive it was considered that the vast majority of special libraries in New South Wales would be listed. Of the 432 special libraries listed for New South Wales, 20 did not indicate the size of the collection, and were excluded from the study.

Taking as its base the Directory of Special Libraries in Australia, 8th edition, plus the

September 1992 update, this study analysed the New South Wales section in terms of total collection size. There are four categories of holdings provided by the Directory of

Special Libraries in Australia. These are monographs, periodicals, standards, A/V

(audio-visual), and special collections. Initially only monographs and periodicals were examined in the procedure for selecting libraries for the survey, but two problems emerged. One was that a large number of special libraries have collections which encompass items in all four categories. Another factor was that the categories were not strictly defined. For instance, "monographs" could include music scores and law reports, as could "special collections". Law reports were sometimes counted as individual volumes and sometimes as sets. For example, the Federal Law Reports could be counted as 1 item as a set or as 103 items if each volume were counted as a separate item. Because of this factor, which can apply to other series, there may be some libraries included in the sample which do in fact have more than 10,000 volumes. The problem here is that there does not seem to be a standard methodology for calculating the size of a collection. "Special collections" included bound volumes of periodicals and annual reports, which could have been included by many libraries in the "Periodical titles" category. Video tapes, video cassettes, photographs and slide kits were

39 sometimes included in the "audio-visual" category and sometimes in the "special collections" category. Because of these factors a count of materials in all categories was calculated for each entry in the NSW section of the directory.

The total collection sizes were as follows:

Table 1

Sizes of Collections of Special Libraries in the New South Wales Section

of the Directory of Special Libraries.

SIZE OF COLLECTION NO. OF LIBRARIES

Less than 10,000 292

10,000- 19,999 51

20,000 - 29,999 27

30,000 - 39,999 12

40,000 - 49,999 6

50,000 - 59,999 6

60,000 - 69,999 5

70,000 - 79,999 2

80,000 - 89,999 1

90,000 - 99,999 2

Greater than 100,000 8

As can be seen, the selected group with collections less than 10,000 is 292 and comprises 68% of the 432 special libraries listed in the New South Wales section of the

Directory of Special Libraries in Australia.

40 Because one of the aims of the questionnaire was to determine the extent of possible breaches of the Act, respondents were assured of anonymity and names of libraries and librarians were not asked for in the survey.

The Copyright Act treats libraries of educational institutions and those belonging to government departments in a different way from other special libraries, as is shown by the relevance to them of section 183. While it was initially decided to separate these libraries, it in fact proved extremely difficult to determine whether libraries belonged to these categories from the information provided in the Directory. As most government departments no longer conveniently begin their title with "Department of' this attempt was soon abandoned as too many entries were of uncertain background. It was then decided that libraries would be asked whether they fell into these categories.

A Pilot study

A draft questionnaire was sent to four libraries accompanied by an explanatory letter, explaining that a pilot survey was being carried out, and asking for comments.

The libraries were:

1. A private architecture library with one part-time librarian and a collection of 3,420 items.

2. An insurance library in the public sector with a staff of three full-time and 1 part- time, and a collection numbering 4,400 items.

3. A law firm library with four full-time staff and a collection of 2,705 items.

4. A corporate library in a very busy organisation with one full-time and one part-time library staff, and a collection numbering 3,169 items.

One suggestion for improvement of the draft questionnaire was the addition of a question relating to the subject matter of the library. It was considered that this information would be useful in view of the fact that most special librarians tend to

41 group themselves by subject, and that it would be interesting to know if particular subject groups had greater difficulties with copyright law than others.

Other comments from the respondents of this pilot survey included the following:

- Size of collection and number of staff were important considerations for two

reasons. One is because roles become more blurred in libraries with few

staff as all members of staff must act as a team. The other reason is

because Copyright laws, especially those involving paper work, are

ignored if material is required urgently.

- The questionnaire took too long to complete.

- Terms such as "bulletin" and "full-time equivalent staff' were unclear.

- Percentages of different categories of materials copied should be considered.

- Many of the questions did not apply to very small special libraries.

- Larger print and more space for comments were necessary.

The questionnaire was re-composed taking into account the comments made by the librarians in the pilot survey.

DATA GATHERING PROCEDURES

Distribution

The final questionnaire was photocopied and distributed to respondents with a letter of explanation attached and with a stamped addressed envelope included. 94 The letter asked that even partially completed questionnaires be returned. This was in order that the maximum possible response rate could at least apply to some questions, and recognised that the questionnaire was a long one which might prove fatiguing to busy

94 See appendices C and D.

42 librarians. At the beginning of the questionnaire was an invitation to the respondent to add comments after any question. Each stamped addressed envelope was coded with a number which could be used to identify the library should the response rate prove so small that a follow up was necessary. The code used was that given to each library in the Directory of Special Libraries, and was written on the top left hand comer of the envelope. The questionnaire was posted to 291 special libraries on 12 November 1992, the researcher being aware that one of the listed libraries had since closed. Responses began arriving on November 19 and continued arriving in sharply diminishing numbers up until February 1993. A late, but still appreciated, entry arrived in April 1993.

43 VL ANALYSIS OF DATA

Response rate

Of the 291 questionnaires distributed, 203 or 70% were returned. Of these, 188 or 93% were either fully or partially completed and could be used for analysis. This compares most favourably with Whitestone's response rate of 51% and that of 52% received by

George Fry & Associates. The 16 questionnaires returned but not completed gave the following reasons:

5 - because the library had been closed;

2 - because the addresses were unknown to the Post Office;

3 - because they had duplicate listings in the Directory;

2 - because no professional librarian was employed and the person responsible for the library did not feel sufficiently competent to complete the questionnaire;95

1 - because the library was undergoing a difficult period of change, to the extent that a response now might not reflect the future reality;

1 - because the librarian was too busy to respond to 'ad hoc' (sic) questionnaires from students;

1 - preferred not to respond owing to the nature of the questions, but hoped that the study would contribute to "making copyright workable for everyone";

1 - returned not completed and without explanation.

9 of the returned questionnaires were returned in a different envelope to that provided, or had the code on the returning envelope obscured in order to provide anonymity. An equal number, however, included a 'with compliments' slip, an example of their library bulletin, or some item by which the library was openly identified. It must be remembered that the results of the thesis would be readily available and could be used

95 Although there were other non-librarians who did complete and return the questionnaire.

44 for legal proceedings against special libraries if individuals were identified. Although there was some initial concern by the researcher at the possible inhibition of response rate caused by the addition of a code to the stamped addressed envelope, this did not appear to be a factor, and indeed the codes provided such a useful means of relating spreadsheet data to particular questionnaires that one would have had to be allocated anyway, albeit one which did not identify the respondent's library.

THE RESULTS

Results are analysed here in a way that brings data together from separate questions where relevant. Full results are included in Appendix E. Data have been organised and presented so that no individual responses can be identified.

A composite picture of the respondent library

Although there was some initial concern that respondents might be reluctant to give an indication of their identity by revealing their subject area, in fact 183 or 97% of respondents (n=185) did so by answering Question 1. Subject areas were many and diverse. By far the majority of libraries were connected in some way with medicine (42 libraries), followed by law (21 libraries), management (15 libraries), engineering (14 libraries) and science (13 libraries). Only 7 of the total of 188 responses did not give a subject area, one stating: "Since identification of the subject area would unequivocally identify this library, I decline to answer this question". Responses to Question 2 showed that 42% (77, n=185) of respondents worked in a library attached to a government department.

A request for educational institution libraries to identify themselves in Question 4 operates on much the same grounds as that applying to government libraries - educational institutions are covered by completely different provisions under the Act

45 than are other special libraries. It was assumed that such institutions would already be paying fees to the Copyright Agency Limited, as this organisation is so well known to them. As has already been pointed out, most libraries which are part of educational institutions have access to a large bureaucratic infrastructure which is much more likely to have an organised approach to complying with all the relevant sections of the Act. It was considered important to see if this theory is supported by the answers to the questionnaire. Only 26 respondents (14%, n=181) said that they were part of an educational institution. This groups' attitude toward compliance with the laws seemed relatively relaxed, apparently based on an assumption that their parent organisation took care of such complexities.

Staff size was considered important in building up a picture of the respondent library, as there may be some correlation between size of library staff and adherence to

Copyright laws. 184 respondents replied to Question 5. The maximum number of staff working in any one special library was 8 full-time. The minimum was 0 since some questionnaires were completed by a secretary or clerical assistant who, as part of their duties, looked after very small libraries which technically had no staff. The average

(mean), however, was 1.4 persons per library.

Payment of licence fees to CAL

11 (8%, n=146) respondents said that they were making payments to CAL. Although the Commonwealth Attorney-General and CAL had reached agreement on rates for

Government photocopying in July 1992, the agreement for Commonwealth government departments to actually pay licence fees only began from 29th March 1993. As respondents answered the questionnaire between November 1992 and February 1993, no government departments should have answered yes to Question 3. However five respondents said that they were a government department and were paying royalties to

CAL.

46 This question was asked in order to see how many non-educational institutions were paying royalties to CAL as it was assumed that all educational institutions were part of a licensing agreement. However, of the 26 special libraries which were educational institutions, only 5 said that they were paying royalties to CAL.

The following are some of the comments from those who answered 'yes', they did make payments to CAL. One indicates a licence agreement in process: "We have not reached agreement regarding our press clips. The bill, when agreed upon, should be approx [$]

2,500 p.a."

Others show reliance on another section of the parent organisation which pays the licence fees: "We have a public training enterprise attached to our organisation who pay royalties to CAL for journal article copies included in course notes", and

"Administrative section pays copyright loyalties to CAL for material copied for educational purposes ie for trainee counsellors".

The following comments came from those who answered 'no', they did not make payments to CAL. The fact that any comment appeared at all in these cases is possibly indicative of a sensitivity to perceived but poorly understood legal requirements. "Not at present - looking into this", "Only recently found out about this", "Have never been requested to do so", "Not as far as I am aware. Certainly I do not have anything to do with it" and "Because we did not know (before your questionnaire made me look it up) about CAL. Because if we had to pay royalties for contents pages, my superiors may well cut it out - depending on costs". Other comments demonstrated a complete lack of knowledge about CAL: "We do not know about CAL", and "Please send information" were typical comments.

47 Who does the copying?

It was assumed for the purposes of the survey that in a small special library all library staff work as a team and therefore all do photocopying and all are subject to penalties under the Act if the requirements are breached.

187 respondents answered Question 6. In some cases only one category of staff was chosen and in others more than one category was ticked. Results are shown in table 2.

Table 2 Staff doing Photocopying

CATEGORY OF NO OF TIMES STAFF TICKED (n=187) Head Librarian 98 Librarian 86 Library Technician 57 Other library staff 75 Users 139 Photocopy section 25 Other 20

Users did by far the most photocopying, making up 74% of the total. This fact emphasises the need for notification of Copyright requirements by the use of a sign by the photocopier in line with section 3 9A.

It was interesting that the second most frequently chosen category was that of Head

Librarian, who did the photocopying in 52% of cases, or 98 of the 187 respondents.

Given that the average size of the library was 1.4 persons, this may simply mean that this person was the only person working in the library.

The category of "Other" included whoever else might be available - lecturers, administration staff, and volunteers.

48 The location of the photocopier and copyright notice

Librarians do not escape liability by virtue of having users do their own photocopying,

if that copying is done on equipment located within the library. If a library does not

adopt measures which prevent infringement of copyright laws by others, then they are

seen to authorise the infringement. (University of New South Wales v Moorhouse &

Angus and Robertson (Publishers) Pty. Ltd.)96. Clearly, if the library does not provide

copying equipment, then the opportunity to breach Copyright is not available.

However, answers to Question 7 of the survey showed that copying was generally done

in the library itself. 130 of the 149 respondents who answered this question said that they had a photocopier located within the library. This finding, that 87% of libraries had

photocopiers on their premises echoed exactly (even to the percentage) that of Hebert in 1987. In addition, 87 respondents had a microfiche reader/printer, and 52 had their own facsimile machine. 11 libraries had 2 photocopiers and 3 libraries had 3 photocopiers - all remaining libraries (135) presumably had one photocopier. If the respondent crossed out the word 'printer' from the phrase 'microfiche reader/printer' then this was ignored as the presence of a microfiche reader did not have any implications for copyright.

The case of University of New South Wales v Moorhouse showed the responsibility of the library in implying authorisation of breach simply by having photocopiers near the collection. This responsibility was only avoided by having an A4 "prescribed form" as per section 39A near the equipment on which the infringing copy could be made, hence

Question 8 asked respondents whether a library had signs in accordance with section

3 9 A.

96 (1975) 49 ALJR 267

49 Although 67% (n=146) of respondents who answered this question said that they did have a sign next to their photocopier warning users of Copyright Act Limitations, only

26% had one by their microfiche reader/printer and only 7% had one by their facsimile machine. It would seem that librarians have responded to the case law focusing on photocopiers but have not extrapolated this to extend to other types of machines which can copy or reproduce images.

Section 39A states that any sign in accordance with it must be "of the prescribed dimensions" which are defined by the Australian Copyright Council as being of A4 size.97 Question 8 of the survey also found that only 79 of the 98 notices by photocopiers were A4 size. Only 14 of the signs by the microfiche printer were A4 and only 3 of those by the facsimile machine. Other size signs were A3, A5, B5, Folio, 8x5 cm, 12x8, 15x7, 14 x 20 cm, 60 x 30 cm and 100 x 100. It seems that A4 may be used simply because it is the standard size paper available in any office, but that larger signs are indications that the librarian is trying to bring a point home to users in a more forceful way.

13 of 146 respondents had taken upon themselves the responsibility of placing s.39A signs on photocopiers which were located outside the library. One respondent did have a sign on the photocopier but it was stolen. Three other libraries had signs which had been removed at some time and never replaced.

Users’ awareness of copyright laws

Librarians are not wholly protected by the notice by the photocopier required by section 3 9 A, as this only covers their implied consent to infringement by reason of their provision of photocopiers in the immediate vicinity. As pointed out at a recent (July

97 Australian Copyright Council, Libraries and Copyright, Bulletin 52, Australian Copyright Council, Sydney, 1992. p. 8.

50 1993) copyright seminar held by the Australian Copyright Council, librarians who become aware of prolonged photocopying by a single user are very definitely liable.

Given that protection by means of a section 39 A sign above a machine used for copying is not adequate, it would seem that the only sure means is user education. That librarians have a need to pass on awareness of copyright laws is reflected in the answers to Question 16 of the survey which showed that while 79 or 43% of respondents thought that users who did their own photocopying were aware of copyright, 104 or

57% of respondents (n=183) thought that users were not. However, of the 79 who were counted as selecting 'yes', in fact 14 changed the word 'yes' to 'some'. Comments clearly showed that even when users were aware, they did not always take copyright seriously. These were typically expressed by such comments as: "The users who are aware of the copyright law, choose to ignore it" and "Those who are aware do not care about it".

Users' awareness of copyright laws resulted from the librarian's efforts in 38 or 31% of responses (n=121) to Question 16a, showing a sense of responsibility on the part of the librarian and echoed in the following comments: "All the regular departments who use the library have been spoken to by me"; "Informed by library. Circulars occasionally remind all employees of copyright law"; "We explain it to them, the library brochure explains it, and so does the user manual"; and "I try to make people in the organisation aware of copyright law".

The next most common means of users acquiring knowledge of copyright laws come from the copyright warning notices above the photocopier: 28% of respondents thought that this was how users becamare aware of copyright restrictions.

A surprising 16% of respondents thought that awareness of copyright could be considered to be general knowledge while 15% of respondents attributed their users'

51 awareness of copyright laws to regular library use, whether current or past use of university or public libraries. For 8% of respondents their users' professions (lawyers,

scientists) was thought to guarantee knowledge of the relevant sections of the act, while 2% attributed user knowledge to the host institution.

Librarian's knowledge of copyright laws

The knowledge of copyright laws claimed by librarians themselves seems often very solid. Answers to Question 17 showed that 63% (n=166) of respondents had read the

Copyright Act, while 62% (n=170) had read the Australian Copyright Council's bulletin "Libraries and Copyright". Answers to Question 18 showed that seminars on the subject had been attended in the past two years by 75 respondents (40%, n=186) but the majority, 111 respondents, had not attended a seminar or meeting on the subject within the past 2 years. Of those librarians who had attended seminars, the most frequently cited originator was the Australian Copyright Council - 15 respondents attended seminars held by the ACC. Other sources of official seminars were special interest groups such as LIFE (Libraries in Financial Enterprises), the ALIA Health

Libraries Section NSW Group, the IT (Information Technology) Librarians' Group, the

ALLG (Australian Law Librarians' Group), LOSS (Libraries of the Social Sciences), and the Sterling Committee of Law Firm Libraries.

Some respondents did not clearly recall or mis-remembered who the organisers of the seminars they attended were, and some respondents, aware of this, put question marks to their responses. For example, neither the State Library (5 respondents) nor the NSW

Group of ALIA Special Libraries Section (3 respondents), nor ALIA (6 respondents) have run seminars on copyright in the past two years. On the other hand, responses may represent a natural misremembering. There have been two very well attended

Australian Copyright Council seminars held at the State Library, and a paper on

52 copyright was given at the ALIA Albury-Wodonga conference in 1992. However, what

is clearly shown is how librarians promote further education through their networks.

One method of keeping up to date with changes in copyright laws is through reading

professional literature. Since the implication of asking respondents if they do keep up

with the literature is that they are unprofessional if they do not, question 19 of the

survey was phrased "To what extent have you been able to keep up with the literature

that deals with copyright?"

Of the 181 respondents who answered this question, 130 or 72% said that they "Read

some articles". Three librarians took their reading further, commenting that they

discussed it with other librarians. 36 or 20% of respondents "Never have time", while only 15 or 8% "Try to keep up with everything". Comments related to this last category included: "But only just commenced in the position of librarian 5 months ago"

and "Everything = impossibility". Other comments were: "Never see any articles",

"Have never read any" and "Don't bother".

Means of disseminating information

Many special libraries have a problem in circulating periodical publications efficiently.

There are lengthy delays caused by an item being held up with one person, and invariably there are disputes about who should head the list. Some special libraries have been known to overcome this problem by photocopying whole publications and circulating both original and copies. Many, however, prefer to photocopy the contents pages of all incoming periodicals and circulate these in the form of a 'library bulletin' or newsletter for the selective dissemination of information. This latter option has the advantage of allowing members of the organisation to be aware of new developments in their field without having the original journal leave the library. Users then can look at specific periodicals on their next visit to the library or request a photocopy of specific

53 articles. 154 or 83% (n = 186) of respondents answering Question 9 produced a library circular or bulletin, or provided information for distribution within their organisation.

The frequency of these bulletins is shown in table 3.

Table 3 Frequency of library bulletins designed to disseminate information

Frequency No. (%) of respondents n = 154 Weekly 26(17%) Weekly and 4 ( 3%) cumulative Fortnightly 11 ( 7%) Monthly 68 (44%) Bimonthly 10 ( 7%) Quarterly 30 (20%) Half yearly i (i%) Yearly 2 ( 1%) Irregularly 2 ( 1%)

A category included by respondents was 'bimonthly' with 10 or 7% of respondents choosing this category. Four respondents produced two bulletins, two a weekly and a monthly bulletin, and the other two produced a weekly and a quarterly bulletin. Three respondents contributed to a parent body publication.

The bulletins consisted of the information shown in table 4.

54 Table 4 Contents of the library bulletins

Bulletin contents No. (%) of respondents (n = 156) (Photocopied) contents pages of serials 51 (33%) (Photocopied) title pages of books 19 (12%) Full or partial bibliographic details (often 60 (38%) from catalogue) Abstracts (own creation) 38 (24%) Subject bibliographies 8 ( 5%) Other 61 (39%)

'Other' included information about professional development courses, conferences,

trade news, missing items, new developments in the library, book reviews and request

forms. Also included were print-outs from online on in-house databases, including

catalogues. Two respondents answered this question even though one had responded in

the negative, and one not at all to Question 9.

One remarkable respondent is worth mentioning separately as having obtained

and distribute them on a regular basis. This parallels Nemchek's American survey in

which only one respondent had actually contacted copyright owners and requested

permission to photocopy.

Extent of breach of copyright

In order to ascertain the extent of breach of copyright other than in SDI services, respondents were asked in Question 10 to indicate the extent and frequency of their copying. Respondents were asked to take the phrase 'periodical publication' as meaning any item that is published on a periodical basis such as journals, newspapers, Hansards,

55 annual reports, loose leaf bulletins, updates, etc. The type of material copied, and the

frequency of copying can be seen in table 5.

Table 5 Materials Photocopied and Frequency of Photocopying.

Frequently Regularly (i.e. Sometimes Never MATERIAL (i.e. at least at least once a (i.e. maybe once a week) month) every few months) Whole 6 (3%) 0 33 (19%) 138 (78%) periodical publications? N=177 More than 2 28 (16%) 36 (20%) 82 (46%) 33 (18%) articles (not on the same subject) from a periodical publication? n=179 Contents 65 (36%) 46 (25%) 37 (20%) 33 (18%) pages of periodical publications? n=181 More than 1 (<1%) 2 (1%) 61 (34%) 113 (64%) 10% of a book? n=177 Whole books? 0 0 21 (12%) 156 (88%) n=177 Other? (Please 13 (52%) 2 (8%) 9 (36%) 1 (4%) specify) n=25

’’Other" materials included trade literature, exposure drafts and standards, literature search results, and technical reports.

Of the material copied, answers to Question 12 indicated that 87% (152, n=175) was currently published, and 15% was of material that was out of print. Although the majority of special libraries deal in material that is current, the photocopying of an out of print item may not be an infringement. This is shown in section 51A(4) which states 56 that the library may photocopy an item if "a copy (not being a second-hand copy)

cannot be obtained within a reasonable time at an ordinary commercial price" This

almost always applies to out of print items, and any infringement would be very

difficult to prove, regardless of whether the copyright has expired.

Librarians however, were often unsure as to whether material could be called 'currently published'. This is reflected in such comments as: "Not sure - they are usually non- current journals so is this 'currently published'?", and "Majority are for journal articles.

Unless the current issue, assume these to be out of print".

Method of requesting photocopies

Respondents were asked, in Question 11, about the means by which users requested photocopies. By far the most frequent method was by request form, closely followed by requests made in person. The first method allows the incorporation of details of

Copyright Act requirements. The second method gives the user, who does most of the photocopying as the results in table 2 show, the opportunity to peruse the section 39A notice above the photocopier, and the librarian the opportunity to inform the user of the requirements of the Copyright Act. The use of electronic mail to request photocopies was lower than by other methods, as were requests by fax.

57 Table 6

Means by which users request photocopies.

Frequently Regularly Sometimes Never (i.e. at least (i.e. at least (i.e. maybe once a week once a every few month) months Means By telephone 56 (36%) 42 (27%) 50 (32%) 9 (6%) n= 157 In person 83 (51%) 33 (20%) 40 (24%) 8 (5%) n= 164 By memo or 40 (26%) 39 (26%) 56 (37%) 16(11%) letter n = 151 By electronic 28 (23%) 16(13%) 25 (20%) 54 (44%) mail n = 123 By request 86 (60%) 16(11%) 11 (8%) 31 (22%) form n = 144 Other 11 (42%) 6 (23%) 7 (27%) 2 (8%) n = 26

Record keeping

Although a declaration form for every item photocopied is required under section 49 of the Copyright Act, answers to Question 13 showed that 100 or 56% (n=180) of

respondents did not ask users to complete one. 80 or 44% of respondents did require the completion of a declaration form. 64 or 74% (n=86) of respondents indicated that users who did complete declaration forms actually signed them. The declaration must be signed in accordance with section 49 of the Copyright Act. Key comments here included: "Under duress", and "Not always".

Declaration forms, whether completed by the user or by an authorised officer of the library, must be retained for the prescribed retention period of four years. In the event that this is not carried out, section 203 A of the Copyright Act allows both the "body administering the library" and the "officer in charge of the library" to be fined, on

58 conviction, $500 each. Answers to Question 13b showed that 85 or 96% (n=89) of respondents who required that local users complete a declaration form kept the forms, and for the periods shown in table 7.

Table 7 Periods for which Copyright Declaration forms are kept.

Period No. (%) n=87 Less than one year i n%) One year 3 (3%) Two years 10(11%) Three years 13 (15%) Four years 22 (25%) More than four 38 (44%) years

It is interesting that many respondents acted on the side of caution, and a lack of confidence in the exact requirements is indicated by the following comments: "I think for five years", "7 years" and "I intend to keep them for seven years - Lib has not been established that long yet".

Similar fines ($500 for both the "body administering the library" and the "officer in charge of the library") are payable in the event that declarations are not kept "in chronological order according to the dates on which the declarations were made". In answering Question 13d, 69 or 80% (n=86) of respondents indicated that they kept their declaration forms in chronological order, 7% kept them in alphabetical order, while 13% kept them in "Other" which included: "Random", "Alphabetical within month" and "Request number order".

59 Defences under the Act

If a library notes on each photocopy the name of the library making the copy and the date on which the copy was made, this can, in the event of legal proceedings, allow the library to rely on sections 49, 50 or 51A which make provision for libraries to copy for the purposes of research or study and within certain limits. Unfortunately, many librarians are under the impression that they can rely on these sections without any obligation to formalities determined by the Act. Larger libraries with formal photocopying policies in place, often have a stamp made for the purpose. If such a notation is not made then the library, even if it complied with the provisions of sections

49, 50 or 51 A, cannot rely on them as a defence. It was assumed that very few small special libraries are aware of this requirement. Interestingly, practices in this regard as shown in answers to Question 14 were evenly split, with 92 or 50% of respondents

(n=184) indicating that they did make some notification on all photocopies to denote that they were done by the library, while 50% did not. Lack of concern about whether a notification was made or not was indicated by such comments as: "Usually";

"Sometimes I forget"; and "About 1/2 the time". A typical comment indicated that there was no need to make any notification that the copy was made by the library since

"It's assumed!"

Charging for photocopies

Section 49(3) states that the charge made for a photocopy must not exceed the cost of making and supplying the copy. The charge made often depends on the costing system used by the parent organisation. For instance, the cost may be based on machine rental plus overheads, and may or may not include labour in the overall figure. In addition, overheads are often calculated in different ways. While 103 or 56% (n=185) of respondents indicted by answering Question 15 that they did not charge for photocopies, 82 or 44% did. Of these, 24 were Inter-Library Loan costs and 57 were for non-Inter-Library Loan photocopying. These non-Inter-Library Loan photocopying

60 charges varied enormously, from between 7 cents to 60 cents, with 10 cents or less per page charges being the norm (53% or 30 respondents). For Inter-Library Loans, standard charges applied, although one library added $12 for processing costs.

Table 8

Charges made for non-Inter-Library Loan Photocopying

Amount charged No. of respondents

n=57

10 cents or less 30 (53%)

Between 11 and 20 cents 20 (35%)

Between 21 and 60 cents 6(11%)

More than 60 cents 1 (2%)

Librarians' views on copyright laws

The survey concluded with two open-ended questions. Question 20 began with the statement: "There are extremes of view relating to copyright law. Some people support all aspects of copyright law whereas others think that there are aspects which are not viable", and asked respondents "Do you think that copyright laws are reasonable?"

Of the 154 respondents who answered this question, 107 or 70% said that they thought that copyright laws were reasonable, while 42 or 26% said that they thought the laws were not reasonable. 5 or 4% made their own category of'Don't know' or 'Unsure'. The subject matters of the libraries which considered copyright laws to be not reasonable were diverse, although there was a slight concentration in those libraries which dealt with medicine, law or management.

61 When asked to elaborate on why they thought copyright laws were reasonable or unreasonable, 105 respondents made further comment. The most important aspect here was the content of the comments, which were broken down into the following categories: problems with policing or powerlessness; amount of paperwork; inadequacy of the law to keep up with technology; problems with not being able to photocopy contents pages; conflict with publishers profit motive; recognition of the need to protect authors'/publishers' copyright; need for further education; and 'other'.

'Other' was made up of explanations of how things work in particular libraries, restatements of the law, and comments not relevant to this thesis. Table 9 shows the breakdown of comments by issue.

62 Table 9

Classification of comments in response to Question 20 (n=105)

Question: Do you think that Copyright Laws are reasonable?

Yes No No Total

response

Problems with 15 13 7 35 policing and/or powerlessness

Problems with 6 7 2 15 paperwork required

Inability of law to “ 4 1 5 keep up with

Technology

Need to be able to 3 6 1 10 photocopy contents pages

Conflict between 1 6 7 authors' and publishers' motives

Need to protect 14 - 14 copyright

Need for further 2 1 4 7 education

Other 16 6 5 27

63 Problems with policing/powerlessness

It is interesting to note that of the 35 comments which came from respondents who

thought copyright laws were reasonable, 15 cited problems with difficulties of policing

the law or powerlessness while 13 similar comments came from those who thought that

reasonable to ensure that copyright is protected. In reality it is impossible. Photocopiers

are readily available and most people do not care if they infringe copyright. In this

library I can only ask people to be mindful of copyright I cannot force anyone not to

photocopy"; "It is extremely difficult to make sure people comply"; "Impossible to

police when users do their own photocopying"; "It is difficult to get users in the library to observe copyright. I know in many cases more than is legal is being copied but this cannot be controlled unless the librarian physically stands over them"; "Monitoring the users is impossible, we cannot check what they do"; "Difficult to persuade some users of the importance of abiding by copyright laws" and "It is unfair to place librarians in a

'policing' role such as forcing people to fill in forms against their will".

Amount of paperwork

There were 15 comments related to the paperwork aspects of copyright regulations.

Some typical comments related to difficulties were: "The paperwork involved in maintaining Copyright is horrendous. No-one seems to take it (copyright) seriously (ie. users, agencies, etc.)"; "Declaration forms are a waste of paper & storage space - no check is ever made on these"; "Declaration forms for libraries - we do not have time to worry about these & it is not enforced so why bother"; "It's a pain keeping the paperwork. Users get frustrated having to fill in so many forms, and so do we!"; and

"Generally speaking, users of this library are not interested in the legalities or philosophical aspects of the copyright act, all they are interested in is obtaining the

64 information requested with a minimum (preferably none at all) of bureaucracy (i.e.,

Inadequacy of the law to keep up with technology

Comments regarding the ability of the Act to keep up with changing technologies came

only from the group which thought that copyright laws were not reasonable. Such

comments included, among others, the following: "Clarification is needed in relation to

changing technology, ie fax copying, CD-Rom, database searching, etc";

"I feel that the law is failing dismally to cope with the realities of modern technology";

"Like with many issues related to technology, the development and power of

technology outstrips our capacity to deal with the social, legal, etc. ramifications";

"Education to the public at large is very difficult as wherever there is a technology that

will enable people to reproduce something they will demand the right to use it"; and

"Our main difficulty is that copyright has not kept up with electronic technology. This

issue needs to be sensibly and urgently addressed; eg. electronic transmission of

information".

Problems with not being able to photocopy contents pages

Many respondents took the opportunity to express a particular concern about the

photocopying of contents pages, a common method of disseminating information in a

small special library. Typical of many comments were the following: "As I understand

laws seem reasonable except the use of journal contents pages in office distribution";

"... some parts are ridiculous eg. recently read that to produce a bulletin with contents

pages in it, permission should be sought from publishers - ridiculous!"; "Content lists of journal should not be copyrighted"; "Too restrictive. Esp. where contents pages are

concerned. Unrealistic"; and "I think libraries should be able to legally copy contents

lists of journals".

65 Conflict with Publishers Profit Motive

One interesting comment was: "Our primary aim is to diffuse knowledge, immediately.

Some publishers primary aim is to make a profit. These two at times are incompatible”.

Some additional comments along these lines were as follows: "I think for medical

articles people are not publishing for profit & its important for info, to be available. It's

not always easy to determine whether articles are 'on the same topic' - they may be in a

generalised way -1 err on the side of the user”; "Medical authors are delighted for their

material to be photocopied & widely distributed. They are not comparable with poets,

novelists etc. who wish to earn money from their writing. Medical authors look for

advancement of knowledge, patient care improvement prestige etc. Copyright ties our

hands with regard to dissemination of information to busy people”; "Given that it is the

publisher of most scientific journals who owns copyright I think there is absolutely no justification for payment of royalties. Contributors to scientific journals are offered no

remuneration at all, and publishers charge outrageously high subscription rates";

"Because in a subject area such as ours I believe that authors are more interested in

dissemination of knowledge and in status than in profit so they are probably quite

happy to see their works copied".

Need to protect authors'/publishers' copyright

14 comments related specifically to the recognition of the need for copyright protection for authors. Examples are: "It is essential to provide some legal cover for work completed by author, publisher, distributor" and "Protects from abuse that causes a loss of revenue to writers. Helps to distribute the costs of journal subscriptions. Also makes users think about what they are requesting/copying"

66 Needfor further education

A few comments related to the need for further education for special librarians. Some

comments were open admissions of lack of knowledge: "Knowledge is sketchy as (sic)

present. As I understand laws seem reasonable except the use of journal contents pages

in office distribution", while some were implied: "Don't have an informed opinion

really".

Other

These comments either related specific practices in libraries or were not relevant for the

purposes of the study. For example: "Yes - 10% seems fair except where a book or

report is o.u.p. &/or unable to be borrowed" (this is a restatement of the existing law).

However, there were some interesting isolated suggestions such as: "Should be

reviewed regularly with input from all interested parties"

Finally, Question 21 asked respondents to comment on any problems or issues that

arise with copyright that were not been covered by the questionnaire. 54 respondents made comment. Three of these were not separate comments but continuations from question 20 and were not counted. Comments are again classified according to the divisions used for Question 20. 7 of the 32 'Other' comments related to the need for further education for both librarians and users.

Problems With Policing/Powerlessness

9 (18%) comments in response to this question echoed those from Question 20. For example, one comment was: "It is difficult to get users in the library to observe copyright. I know in many cases more than is legal is being copied but this cannot be controlled unless the librarian physically stands over them".

67 Amount Of Paperwork

"Record keeping too time consuming" was one of 4 (8%) comments in this category,

again echoing the comments given in answering the previous question.

Inadequacy Of The Law To Keep Up With Technology

9 (18%) comments related to this topic, with respondents concerned about the

electronic transmission of information, particularly fax machines.

Problems With Not Being Able To Photocopy Contents Pages

Only 3 (6%) comments specifically referred to the need to photocopy contents pages

for the purposes of updating users' current awareness of events in their field.

Conflict With Publishers Profit Motive

5 (10%) comments related to the conflict between the users' need to access

information, or the librarian's need to disseminate it, and the publishers' requirement for

profit.

Need to protect authors'/publishers' copyright

There were no comments in this category, respondents possibly considering that this

area had been adequately covered.

Needfor further education.

10 (20%) respondents' comments related to requirements for copyright education for

both users and librarians, for example: "I think that issues of copyright should be

discussed more widely in the community. Very few people have awareness of copyright issues, and if they do know about them they are often thought to be difficult or onerous

68 to comply with. I think that the ACC could do more community education on this

issue".

Other

11 (22%) respondents commented on issues other than those already raised in the

previous question. These comments were not directly related to specific issues, for

example, some explained photocopying practices in their own libraries, while other

comments related to the construction of the questionnaire itself.

SUMMARY OF FINDINGS

The average number of staff in the special libraries surveyed is 1.4 full-time staff. 87%

of libraries have their own photocopier located in the library. Users do the most

photocopying, and because the majority of librarians think that users are not aware of

with section 39 A in 67% of libraries. All respondents were aware of copyright laws in

varying degrees, the majority (67%) having read the Copyright Act and 72% of

librarians supplementing their knowledge with further reading.

83% of special libraries produce a library bulletin for disseminating information to their users, a monthly frequency being the most preferred. 33% of these libraries include contents pages of serials in their library bulletin, and 38% include full or partial bibliographic details of items, often from their own catalogue. The majority of respondents (78%) would never photocopy a whole book, but contents pages are photocopied by 81% of respondents on a frequency ranging from at least once a week to every few months. 87% of all material photocopied by respondents is currently in print.

69 Although request forms are the most frequent method of requesting photocopies, 56%

of respondents did not ask users to sign a declaration form in accordance with section

49 of the Act. When declaration forms were kept they were generally in line with

statutory requirements in that they were kept in chronological order, but were kept for

longer periods than the Act requires. Even though the entitlement to rely on section 49

as a defence is lost unless a notation is made on each copy of the name of the copying

library and the date, only 50% of libraries made such a notation.

56% of special libraries do not charge for photocopying. For those libraries which do

charge for non-Inter-Library Loans, charges vary between 7 and 60 cents per page.

While 70% of respondents thought that copyright laws were reasonable, 28% of comments made by these respondents cited problems with powerlessness and with the difficulties of policing the law. Additional problems over record keeping were cited.

Two other aspects raised were the inadequacies of the Act to keep up with new technologies and the expression of concern at not being able to copy contents pages.

70 VII. DISCUSSION

Introduction

This thesis investigated the extent of breach of copyright through photocopying by, and

the impact of compliance with the Copyright Act on, special librarians in libraries

with collections of 10,000 volumes or less. The findings confirmed the assumption

that breach of the copyright laws is a frequent occurrence. Comments from

respondents showed, however, that librarians are often not in a position to enforce

compliance. It was confirmed that the photocopying of tables of contents is one of the

largest areas of breach among special librarians in New South Wales. It was also

confirmed that librarians still consider the laws to some extent unreasonable, that they

still have difficulty in getting a commitment to compliance from both clients and

management, and that they continue to act in a knowledgable, professional and responsible matter in spite of these difficulties.

Special librarians in small special libraries breach copyright either in order to meet the information needs of their users or to avoid difficulties with their employers. They often work on their own or with limited assistance. Perhaps because of this limited assistance, users do most of the photocopying. The majority of special libraries have their own photocopier and post notices in accordance with the Act. Special librarians recognise their liabilities under the Act and try to direct users' attention to its requirements but are aware that users in the main either have little knowledge of the

Act or do not care. Librarians themselves try to keep up with copyright laws but recognise a need for further education. While photocopying of whole books or periodicals is infrequent, the photocopying of contents pages from journals occurs at least once a week for the majority of respondents and photocopying of more than two articles (not on the same subject) from periodicals occurs regularly. This is often done for the purposes of producing a library bulletin to keep users up to date with

71 developments in their field, and echoes the findings of all of the surveys covered in the literature review. Both librarians and users consider the amount of record-keeping related to copyright regulations to be onerous.

The content of comments made by respondents in answering the two open-ended JLo o*/. questions^proved most interesting, and an insight into the conflicts and contradictions about copyright experienced in special libraries. Comments covered the following areas:

Problems With Policing Or Powerlessness = 44 comments;

Amount Of Paperwork = 18 comments;

Inadequacy Of The Law To Keep Up With Technology = 14 comments;

Problems With Not Being Able To Photocopy Contents Pages = 13 comments;

Conflict With Publishers' Profit Motive = 12 comments;

The Need To Protect Authors'/Publishers' Rights = 14 comments;

The Need For Further Education =17 comments.

Each of these areas will be discussed in relation to the surveys reported earlier and the literature more generally, for each area has proved to be generally problematic.

Problems with policing or powerlessness

The Copyright Act is unusual in that librarians are placed in the odd position of being criminally liable for the actions of others. Respondents recognised this aspect both in the many comments regarding their powerlessness in enforcing the Act, and in their being held responsible. The requirement that librarians, who are the ones penalised for breach of the Act by their users, must themselves police the Act, is absurd, and as Rob

Brian so succinctly puts it, is "... about as logical as a car hire company being held responsible for one of its clients exceeding the speed limit".98 Librarians are often the meat in the sandwich: "As users, libraries are particularly vulnerable because they

98 Brian, R. 'Copyright Now', The Australian Library Journal, Vol. 32, No. 1, February 1983. pp. 24- 25.

72 purchase, and own physically, material in various formats, for the use of others. ... The dual purposes of preservation and accessibility both present opportunities for infringement of copyright'*.99 Many comments from respondents related to the weakness of the position of the librarian in the organisation, a typical one being: "The great trouble with enforcing regulation of copyright is the lack of concern expressed by our management who control decision making in this regard". This failure on the part of the parent organisation to encourage compliance echoed Nemchek's findings:

"Comments that indicate an unwillingness at the firm management level to consider copyright compliance as a serious issue are disturbing".100

It is likely that it is this powerlessness on the part of the librarian that in part prevents them from demanding the completion of declaration forms in accordance with the Act and which in turn leaves them open to a fine for non-compliance. One respondent observed: "It is extremely difficult in a special library to refuse photocopying by users, as they consider (and I agree) that it is necessary for their research to have their own copies of material. Because of financial restrictions most libraries only have single copies of publications, so copies are essential".

The problems associated with record keeping

Thirty years ago George Fry & Associates stated that: "No one has yet established the extent of photocopying of copyrighted materials in quantitative terms, and it is unlikely that this can be done". 101 Unfortunately, the enormity of the task did not deter the legislators, who would themselves not have to be bothered with the logistics of this onerous duty. Lahore once said "One of the reasons for the complexity of the legislation is the basic principle adopted by it - the principle of payment according to

99 MacPherson, op. cit., p. 61.

100 Nemchek, op. cit., p. 665.

101 George Fry & Associates, op. cit, p. 94.

73 use of copyright material, thus necessitating detailed record keeping and inspection

procedures .,"102 The many comments regarding the onerous book-keeping aspects of

complying with the law raise questions of the appropriateness of the task for those who

are educated and trained to undertake professional activities. It would perhaps be more

appropriate for an administrative section outside the library to undertake this

component of compliance, particularly in one-person libraries. The fear of discovery of

legal violations was noted by Whitestone in 1977 as being a reason for not keeping

records of photocopying. However, indications in this survey were that this fear was a

driving force in ensuring that bureaucratic record keeping took up a large part of any

special librarian's time.

The Franki report stated that: "We did not receive many submissions from individual persons concerning the making of copies for research or private study, but those who did make submissions were unhappy with the delay and inconvenience of filling in forms where this practice was adopted" 103 The comments from the librarians surveyed

showed that users' attitudes had not changed. Again, this is an area which erodes into the librarian's time that is spent for the purpose for which they are employed, and it is not difficult to understand that special librarians cannot take their responsibilities under the Copyright Act to be more important than their orthodox professional responsibilities.

The ability of the Act to keep up with new technologies

Concerns over the adequacy of the law to keep up with technological change are in line with Fielding's important question: "Over the centuries a property concept which originally applied to writing has been extended to cover artistic works, recordings,

102 Lahore, Photocopying: a guide to the 1980 amendments to the Copyright Act, op. cit, p. 2.

103 Copyright Law Committee on Reprographic Reproduction, op. cit. p.27.

74 films and computer software. At each step additional ideas have needed to be included, drafted as far as possible to fit within the original framework. Is this framework sufficiently robust to carry also the world of multimedia electronic networking?" 104 It was interesting to note that the comments made by respondents regarding the inability of the law to adequately deal with new and emerging technologies came only from the respondents who said TSfo' when asked if they thought that copyright laws were reasonable. There are implications that those respondents who held the more radical view that a law may not be reasonable had thought the matter through in more detail than those who possibly sought the more conventional view that since the law is made by those in authority then all laws must be reasonable.

The problem of contents pages

One way of getting information about journal articles to users of special libraries is to circulate the whole journal. It does not take long however before problems occur with delays in circulation (users being away or too busy), users coming into the library and demanding to see the original, and with arguments over who should be at the top of the circulation list. The larger the user group the longer the time that the journal is away from the library and unavailable for user by others. Since economic restraints mean that multiple subscriptions are not an option, the easiest way to meet users' needs is to simply photocopy and circulate a copy of the contents page of the journal so that users may visit the library and peruse the journal or request photocopies of particular articles legitimately through the use of a section 49 request. However, this is not possible under the Copyright Act, according to the Australian Copyright Council, whose Bulletin called "Libraries and Copyright", states that:

"Librarians sometimes want to photocopy the contents pages of journals and

circulate these to users. As discussed at 1.2.1, a contents page may be

104 Fielding, op. cit., p. 623.

75 protected as a 'compilation'. There is nothing in the Copyright Act which

allows librarians to copy contents pages to inform readers of articles acquired

by the library. Librarians who want to operate such as (sic) service should

therefore obtain permission from the publisher. .."105

This section was added to the bulletin in the September 1992 revision, probably as a result of a number of questions from librarians. However there is a problem with this statement. The use of the word 'may' in the second sentence -"... a contents page may be protected" - must mean that there is also a likelihood that the contents page may not be protected.

In the United Kingdom, abstracts '"accompanying articles in scientific or technical journals' can be freely copied, circulated, or republished, unless the journal publishers set up a licensing scheme to collect fees for this". 106 In the United States the argument is used that because a title has no copyright (as is the case in the Australian Copyright

Act) a list of such titles also has no copyright: "The rule excluding titles from the protection of copyright seems plainly to permit libraries to photocopy periodical tables of contents since issues of periodicals are nearly always collections of separately copyrightable works bearing their own titles".107

The Copyright Act defines a 'literary work' as including "a table, or compilation, expressed in words, figures or symbols.."108 However, case law tells us that there cannot be a mere listing of what already exists. In the U.S. case of Feist Publications

Inc. v Rural Telephone Service Co. Inc., where one telephone company incorporated the information contained in a competitor's directory into their own, Justice O'Connor

105 Australian Copyright Council. Libraries and Copyright, September 1992 revision, p. 22.

106 Cornish, G. P. 'The New United Kingdom Copyright Act and Its Implications for Libraries and Archives', Law Library Journal, 83, 1991, p. 58.

107 Treece, J. M., 'Library Photocopying', UCLA Law Review, Vol 24, 1977, p. 1066.

108 Australia. Copyright Act 1968. Reprint No. 5 as at 31 July 1991. Section 10.

76 stated that "The sine qua non of copyright is originality"109 Gupta states "In that factual context, the court went on to reject 'the sweat of the brow' (or, in other words, the mere expenditure of labour) as a valid basis for copyright"110, and goes on to quote the court as saying that "originality requires only that the author make the selection or arrangement independently (i.e. without copying that selection or arrangement from another work), and that it display some minimal level of creativity".*111 * Using this argument, it might be said that those contents pages of journals which contain abstracts of the articles together with each title employ creativity, while those which only cite the title, author and page number of the article employ merely the expenditure of labour. This would seem a logical extension of the principle in the Feist case that could be extended to encompass Australian Copyright law.

Lahore, Australia's leading authority on copyright, clarifies the situation when he states: "The determination of the subsistence of copyright in a compilation must be made by looking at the compilation as a single work and asking whether the work as a whole is 'original'". 112 Using this guide, it seems clear that a simple list of the titles appearing in a particular journal issue is not an original literary work but that a list of titles accompanied by abstracts can be viewed as an original literary work since it involves some input from the author. Librarians should be able to copy freely, if requested by a user under section 49 of the Copyright Act, any contents pages which do not include abstracts.

Unfortunately, it would seem that only a test case could really decide the issue.

109 Feist Publications Inc. v Rural Telephone Service Co. Inc., Ill S. Ct. 1287 (1991)

110 Gupta, Paul R. (1992) 'Recent Developments in US Copyright Litigation', EIPR, 3. p. 101.

111 Feist Publications Inc. v Rural Telephone Service Co. Inc., Ill S. Ct. 1294 (1991).

112 Lahore, Intellectual Property Law in Australia: Copyright, op. cit., p. 3074.

77 Conflict with publishers' profit motive

A very large part of the unwillingness of library users to comply with copyright laws, and thus leaving the burden on the librarian may relate to the fact that the librarian often sympathises more with the user than with the law. Users of special libraries need constant and continual access to current information in order to operate effectively in competitive markets. Often the information that they need to access has been written with the express desire to disseminate it to as many people as possible. This was recognised in the Franki report where it was stated that"... of the technical material copied from journals, very little has been written by the author with the object of earning money directly from the publication. In most cases we are satisfied that the author wishes to disseminate his ideas as widely as possible and would not want to restrict copying, whether remunerated or not". 113

This same belief was widely held by the respondents to the survey. Many comments argued that some authors of journal articles wrote specifically for wide dissemination, particularly those who wanted either their name or their results widely recognised.

These findings support those of George Fry & Associates whose survey found that

"The basis objective of the author of scientific articles and books is to disseminate information", that "The publication and dissemination of such information has not only an altruistic goal for the progress of science, but also serves to enhance the prestige of the author", and that "The vast majority of authors surveyed consider photo duplication of their articles for distribution to constitute either a definite advantage, or to be of no concern". 114

113 Copyright Law Committee on Reprographic Reproduction, op. cit., p. 11.

114 George Fry & Associates, op. cit, p. 81.

78 Others in the literature on the subject support this argument: "...there are many

authors and scholars who want nothing more than to disseminate their work to the

largest possible audience. These writers prefer and deserve to be quoted and referred

to and, therefore, welcome reproduction of their works for this purpose. In the

publication of scholarly articles, the technical, scientific and medical publishers

particularly are dealing at arm's length with their scholarly contributors who often

support a more liberal policy of photocopying. In fact, it is of primary importance to

many young scholars or unestablished writers to become recognised in their field of

expertise, and one way to assist them in reaching this goal is to allow multiple

photocopying of their work".115

Often these authors were not initially recompensed for their contribution to learned journal titles, so it is clear that profit was not the motive for publication. In addition

such authors "... in any event, are not 'copyright owners' because they have assigned

their rights to publishers". 116 In the survey conducted by George Fry & Associates in

1962 one smaller publisher admitted that photo duplication could even help circulation

by stimulating subscriptions. Several others maintained that the circulation of copies of

title and contents pages was an aid to increased circulation, since it was through that

method that researchers initially became aware of journals. This attitude was more

prevalent among journals published by scientific societies rather than by commercial

publishers, the latter expressing concern that readers who see only copies of articles

would not see the entire journal. "This, of course, would bypass advertising content

and would, in the long run, undermine the effectiveness of advertising". 117

115 Tseng, Henry P. 'The Ethical Aspects of Photocopying as they Pertain to the Library, the User and the Owner of Copyright', Law Library Journal, Vol.72, 1979, p. 88.

116 Young, op. cit., p. 72.

117 George Fry & Associates, op. cit, p. 91.

79 It is the larger publishers who express the most concern over copyright for journals

which often have very high subscription costs. The concern here has nothing to do with

the protection of creativity, and everything to do with the economic success of the

publishing company. Robert Maxwell was once quoted as saying "I set up a perpetual

financing machine through advance subscriptions as well as the profits on the sales

themselves. It is a cash generator twice over. It's no use trying to compete with me". 118

As a leading publisher, Maxwell's strategy was to establish a series of publishing

monopolies in order to establish journals that would be seen as the standard journal in

each discipline. It should not come as a surprise therefore that librarians, paying

exorbitant subscription increases each year from declining budgets, should give their first allegiance to the interests of those to whom all their mission statements say is their raison d'etre - the user.

The need to protect authors'/publishers’ rights

Clearly special librarians are sympathetic with the need for copyright protection. This sympathy often conflicts with the librarians' desire to meet the information needs of their users. That there is a need for legislation to protect copyright is not at issue. It is rather the inabilities of a complex legislation to meet the needs of all parties that is the problem.

Education

Following the workings of the Copyright Act is difficult for the lay person. There is no single publication which adequately links the relevant sections of the Act with plain

English instructions. Some works are even misleading. For instance, the State Library of New South Wales' publication "Coping with Copyright" states that "...'fair dealing' for the purposes of ... giving professional advice does not constitute an

118 Thompson, J.C. 'Journal costs: perception and reality in the dialog', College and Research Libraries, Vol. 49, No. 5, 1988. p. 481.

80 infringement."119 What is not spelt out is that the professional advice only applies to that given by a legal practitioner or a patent attorney (s.43(2)). This could cause problems for librarians working for other professionals who relied on that advice. As another example, a librarian may read that: "Fortunately, by virtue of the s.39A notice affixed to, or in close proximity to, photocopying machines in libraries, librarians are now absolved from being de facto policemen and women .,."120 and then hear at an

Australian Copyright Council seminar that there is no absolution if the photocopying breach is done in front of the librarian - a likely situation given the small physical size of most special libraries.

That education is an issue is clear. Part of the policing/powerlessness problem is an eduational one. Librarians are simply not sure about what it is they or users can or cannot do under the Copyright Act. Librarians were often unsure whether the material they were copying was protected by the Copyright Act. Questions were raised as to whether material was out of print, or if specific formats were protected. Apart from attendance at formal seminars, librarians obtain much of their continuing education from each other and from professional groups or networks. There are many groups of special librarians which have the interest of that particular group at heart. There is an implication that further education in this area needs to be taken up by schools of librarianship as well as professional groups.

The Australian Copyright Council has attempted to redress this problem by holding seminars for librarians. However, there is clearly a role for the Council in educating not only librarians, but also users, since it is the latter group which does the most copying and is most likely to breach copyright through lack of concern at what is seen as bureaucratic detail.

119 State Library of New South Wales, op. cit., p. 28.

120 Brian, op. cit., p. 24.

81 VII. CONCLUSION

The issues raised reflect major problems in conforming with copyright law for librarians

in small special libraries. Attitudes range from the despair shown in not bothering to

keep up with copyright developments to the bravado shown by flagrant breach.

Librarians' admissions of breach of copyright echoes the findings in 1977 when

Whitestone found that"..., librarians tended to consider that their photocopying fell within the spirit of the copyright law (a view not always shared by the publishers whose materials they photocopy)".121

One view that was frequently expressed in the survey reported above was that it was all too hard: "I haven't given it much thought, and have adopted the attitude that if the users wish to photocopy, I don't wish to know about it". As Rob Brian pointed out:

"Under the circumstances, it is highly likely that the law will not be strictly observed, especially when the chances of being caught and prosecuted are slim".122 As another respondent pointed out: "If the law is enforceable in a viable sense, it is probably useful, if it isn't, well what is it's point?" This is a valid point and the attitude expressed is not irresponsible, but is rather inevitable given the complexity of the legislation.

Many small special libraries are under threat. Economic conditions mean that many organisations rely on outsourcing for information services. Librarians must not only keep within ever declining budget restraints, but must also be prepared to lose staff and make themselves more productive than ever. Special librarians are caught on the horns of a dilemma. They must show management that they are indispensable for the purposes of retrieving information that gives their organisation a competitive edge while at the same time they must also appear to be pedantic and bureaucratic because

121 Whitestone, op. cit., p. 96.

122 Brian, op. cit., p. 26.

82 of requirements to adhere to copyright legislation that is difficult to monitor and that

restricts their access to and use of needed information. Although they recognise the

rights of authors to recompense and at no time advocate a free market, librarians also

recognise that the restrictions against copying the most commonly requested items, journal articles, may not benefit authors at all.

The economic perspective is an important one in consideration of the philosophical

stance adopted by the law, as it seems to be diametrically opposed to the perceived emphasis on fostering creativity that is promoted by the relevant regulatory agencies.

Copyright laws have evolved from a censoring device, through a period where their primary concern has been the protection of property rights, to one where the stated intent is to encourage creativity. This last intention, however, is often seen as a thinly veiled attempt to hide the fact that the protection of property rights, the economic perspective, is as strong as ever. Mr. Justice Reed speaking on an American case,

Mazer v Stein said:

"The economic philosophy behind the clause empowering Congress

to grant... copyrights is the conviction that encouragement of

individual effort by personal gain is the best way to advance public

welfare through the talents of authors ... in science and useful arts.

Sacrificial days devoted to such creative activities deserve rewards

commensurate with the services rendered".123

As Tseng concludes as a result of Mazer v Stein: "Thus, the copyright law theoretically insures the promotion of the arts and sciences based upon a profit motive principle".124

123 (347 U.S. 201,219 (1954) in Tseng, op. cit., p. 86.

124 Tseng, op. cit., p. 86.

83 So what can be done? "The answer lies in a sensitive balancing of interests"125 but not without effort - "...as a matter of balancing competing interests, it most certainly involves what may be called the politics of the law". 126 Dealing with the politics of the law involves lobbying. In 1981 the Queensland group of the Special Libraries Section lobbied parliamentarians for copyright reform in an area considered important by respondents of this study. Regarding contents pages they said: "It is suggested that multiple copying of contents pages be permitted either by an amendment to the Act, or by Regulation exempting contents pages from the provisions of the Act". 127 Barry

Jones has called the problems with the Copyright Act "An issue that's never been properly addressed" and accuses librarians of being "...feeble lobbyists". 128

Just as the printing press governed the initial growth of legislation in the field of copyright, and the newer technology of the photocopier dictated amendments, so the continuation of technological growth, in particular with relation to the fax machine and to the publication of electronic journals, will dictate future amendments. If librarians want change in the copyright laws they will have to become active lobbyists for input to these amendments.

In the United Kingdom at the time of the introduction of the Copyright, Designs and patents Act 1988 it was proposed to withdraw the fair dealing concession if the copy was to be for commercial use. "The library community, industry, and scholars fought this change and persuaded the government that the restriction was not in the best

125 Gantz, K. 'Guidelines for the permissible photocopying of newsletters and newspapers for corporate use.', The Business Lawyer, Vol. 41, August, 1986, p. 1338.

126 Young, op. cit., p. 139.

127Library Association of Australia. Special Libraries Section. Queensland Group. 'Copyright Amendment Act 1980 report', Australian Special Libraries News, Vol. 14, No. 1, March 1981, p. 4.

128 Opening speech at the Asian-Pacific Specials, Law and Health Conference held at Broadbeach, Queensland in August 1993.

84 interests of either scholarship or economic development". 129 Special librarians are doing much the same thing in America by expressing their concerns about the Texaco decision.

Special librarians in Australia must stop being "feeble lobbyists" and begin to work together for a better deal. Until this happens, the Copyright Act will continue to

"mystify and frustrate one of the groups that the law was specifically designed to affect

- namely, librarians".130

129 Cornish, op. cit., p. 52.

130 Nemchek, op. cit., p. 653.

85 BIBLIOGRAPHY

American Geophysical Union v Texaco. 802 F. Supp. 1 (S.D.N.Y. 1992)).

Association of Research Libraries, Copyright Policies in ARL Libraries: Kit 102,

Systems and Procedures Exchange Center, Washington, D.C., 1984.

Australia. Attorney-General's Department. Government Photocopying Agreement on

Rates with Copyright Agency Limited. Media Release. 17 July 1992.

Australia. Attorney-General's Department. Copyright Act 1968: Crown Copying:

Invoices from Copyright Agency Limited (CAL) . Letter to 17 Commonwealth

Government Departments. 5 November 1992.

Australia. Copyright Act 1968. Reprint No. 5 as at 31 July 1991.

Australian Copyright Council. Copyright in Australia. Redfern, New South Wales:

Australian Copyright Council, Sydney, 1989.

Australian Copyright Council, Libraries and copyright. Bulletin 52. Revised edition.

Australian Copyright Council, Sydney, 1991.

Australian Copyright Council, Libraries and copyright. Bulletin 52. Revised and

Reprinted edition. Australian Copyright Council, Sydney, 1992.

Australian Copyright Council, Copying in Government Libraries, Bulletin 52 - insert.

Australian Copyright Council, Sydney, 1991.

86 Australian Copyright Council, A User’s guide to copyright. Bulletin 174. Revised 1992.

Australian Copyright Council, Sydney, 1991.

Australian Library and Information Association. Special Libraries Section. Crown use

of Copyright. Letter to all Special Libraries Groups and Health Section, also the

Secretary of the Australian Law Librarians Group. 11 November 1991.

Billiet, J. & Loosveldt, G., 'Improvement of the quality of responses to factual survey

questions by interviewer training', Public Opinion Quarterly, 52, 1988, pp. 190-211.

Bishop, G.F., Oldendick, R.W. & Tuchfarber, A.J., 'Effects of filter questions in public

opinion surveys', Public Opinion Quarterly, 47, 1983, 528-546.

Brian, R. 'Copyright now', The Australian Library Journal, Vol. 32, No. 1, February

1983, pp. 24-31.

British Copyright Council. Photocopying and the Law: a guide for librarians and teachers and other suppliers and users ofphotocopies of copyright works. British

'Bullet LAN service fired at lawyers: a distribution of legal bulletins via LANs', Incite,

Vol. 14, Issue 9, 20 September 1993.

Cannell, C.F., Miller, P. V. & Oksenberg, L., 'Research on interviewing techniques',

Leinhardt, S. (ed.) Sociological Methodology 1987, Jossey- Bass, San Francisco, 1981.

Cattems, D., Librarians and the Law of Copyright, Australian Copyright Council,

Sydney, 1973.

87 Cicourel, A.V., Method and Measurement in Sociology, The Free Press, New York,

1964.

Law Committee on Reprographic Reproduction, AGPS, Canberra, 1976.

Cornish, G.P. 'The New United Kingdom Copyright Act and Its Implications for

Libraries and Archives', Law Library Journal, Vol. 83, 1991. pp. 51-59.

Cornish, W.R. (ed ), Materials on Intellectual Property, ESC Publishing Limited,

Oxford, 1990.

Cornish, W.R., 'Photocopying, libraries and the copyright law of the United Kingdom',

International Journal of Law Libraries, Vol. 4, No. 1, March 1976. pp. 26-31.

De Garis and Another v Neville Jeffress Pidler Pty. Ltd. 18 IPR 292 (1990)

DeBenedictis, Don J., 'Saving on subscriptions?'Journal, May, 1991, p.32.

Feist Publications Inc. v Rural Telephone Service Co. Inc., Ill S.Ct 1282, (1991).

Fielding, F.D.O., Copyright in Australia, now and in the future. Proceedings of the

Australian Library and Information Association 1 st biennial conference, Perth,

September 30 - October 5, 1990.

Forster, Jane, 'The Importation provisions of the Copyright Act 1968 - a historical and comparative analysis', Copyright Reporter, Vol. 7, No. 3, 1989, pp. 2 - 32.

88 Fox, H.G. The Canadian Law of Copyright and Industrial Designs, 2nd edition, The

Carswell Company Limited, Toronto, 1967.

Fox, R.J., Crask, M R. & Kim, J., 'Mail survey response rate: a meta-analysis of

selected techniques for inducing response', Public Opinion Quarterly, 52, 467-491.

Fuller, J. (ed.), Directory of Special Libraries in Australia, Australian Library and

Information Association, Special Libraries Section, Sydney, 1991.

Galtung, J., Theory and methods of Social Research, George Allen & Unwin, London,

1967.

Gantz, K. 'Guidelines for the permissible photocopying of newsletters and newspapers

for corporate use.', The Business Lawyer, Vol. 41, August 1986. pp. 1327-1339.

Geer, J.G., 'Do open-ended questions measure "salient" issues?, Public Opinion

Quarterly, 55, 1991, pp. 360-370.

George Fry & Associates. 'Survey of copyrighted material reproduction practices in

scientific and technical fields', Bulletin of the Copyright Society of the USA, Vol. 11,

No. 2, 1963, pp. 69-127.

'Government seized copier used for infringing copyright', Software Law Bulletin, 5, 1,

1992, p. 21.

Gupta, P. R., 'Recent Developments in US Copyright Litigation', European Intellectual

Property Reports, Vol. 3, 1992, pp. 100-103.

89 Hebert, F., Photocopying in Canadian Libraries: report of a national study, Canadian

Library Association, Toronto, 1987.

Hood, H. A. A Survey and critique of photocopying provisions of the new American

169.

Hopkins, R. 'Copyright: complexities and concerns', Canadian Library Journal, Vol.

44, No. 5, October 1987, pp. 273-278.

Hyman, H. et al., Interviewing in Social Research, University of Chicago Press,

Chicago, 1954.

Jeffreys v Boosey (1854) 24 LJ EX 81.

Judd, C M., Smith, E.R., Kidder, L.H., Research Methods in Social Relations, 6th

edition, Holt, Rinehart and Winston, London, 1991.

Kahn, R.L. & Canned, C .F ., The Dynamics of interviewing: theory, technique, and

cases, John Wiley & Sons, Inc., New York, 1957.

Lahore, J. Intellectual Property Law in Australia: Copyright. Butterworths, Sydney,

1977.

Lahore, J. Photocopying: A Guide to the 1980 amendments to the Copyright Act.

Butterworths, Sydney, 1980.

90 Library Association of Australia. ACT. Branch, Copyright Workshop Proceedings: proceedings of a copyright workshop held at the National Library of Australia on 1

June 1981, Library Association of Australia A.C.T. Branch, Canberra, 1981.

Library Association of Australia. Special Libraries Section. Queensland Group.

'Copyright Amendment Act 1980 report', Australian Special Libraries News, Vol. 14,

No. 1, March 1981, p. 4.

MacPherson, L.B. 'The State of copyright legislation in Canada and its impact on libraries', Commonwealth Law Librarian, Vol. 1, No. 1, January 1992. pp. 59-66.

Marke, J.J. 'Photocopying and the copyright law in the United States.', International

Journal of Law Libraries, Vol. 3, 1975, pp. 185-197.

Marks, C. et al. Copyright Law, Leo Cussen Institute for Continuing Legal Education,

Melbourne, 1984.

Moser, C.A. & Kalton, G., Survey Methods in Social Investigation, 2nd edition,

Heinemann, London, 1971.

Nemchek, L. R., 'Copyright Compliance by Law Firms (17 U.S.C. s 108): An ethical dilemma for librarians.', Law Library Journal, Vol. 83, 1991, pp. 653-683.

O'Callaghan, M.C. & Eisenschitz, T.S. 'Photocopying and copyright: attitudes to licensing', Journal of Information Science: principles and practice, Vol. 9, No. 5,

1984, pp. 227-230.

O'Donnell, G.C., A Short note on anti-copyright, Leksand Press, Wollstonecraft,

1985.

91 Parton, M., Surveys, polls, and samples, Harper & Row, New York, 1950.

Patterson, L. R. & Lindberg, S.W. The Nature of Copyright: a law of users' rights,

University of Georgia Press, Athens, Georgia, 1991.

Payne, S.L., The Art of Asking Questions, Princeton University Press, Princeton, New

Jersey, 1951.

Petty, R.E., Rennier, G.A. & Cacioppo, J.T. 'Assertion versus interrogation format in opinion surveys', Public Opinion Quarterly, 51, 1987, pp. 481-494.

Ploman, E. W. & Hamilton, L. C., Copyright: intellectual property in the information age, Routledge & Kegan Paul, London, 1980.

Sawyer, M. E., 'The Photocopying Machine: How Did it Begin?', Law Library

Journal, 72, 1979. pp. 91-98.

Schlegelmilch, B.B. & Diamantopoulos, A., 'Prenotification and mail survey response rates: a quantitative integration of the literature', Journal of Marketing Research, 28,

1991, pp. 243-255.

Schuman, H. & Duncan, O.D., 'Questions about attitude survey questions', Costner,

H.L. (ed.) Sociological Methodology 1973-1974, Jossey-Bass, San Francisco, 1974.

Singer, E., Frankel, M.R. & Glassman, M.B., 'The Effect of interviewer characteristics and expectations on response', Public Opinion Quarterly, 47, 1983, pp. 68-83.

92 Smith, T.W., 'The Art of asking questions, 1936-1985', Public Opinion Quarterly, 51,

1987, S95-S108.

Special Libraries Association. 'Survey of photocopying procedures in special libraries',

Special Libraries, Vol. 67, No's. 5/6, May/June 1976, pp. 271-274.

State Library of New South Wales, Coping with Copyright: A Guide to using pictorial and written material in Australian Libraries and Archives, State Library of New South

Wales Press, Sydney, 1991.

Sterling, J. A.L. & Hart, G.E. Copyright Law in Australia, Legal Books Pty Ltd,

Sydney, 1981.

Tepper, Laurie C., 'Copyright Law and Library Photocopying: An historical survey,

Law Library Journal, Vol. 84, 1992, pp. 341- 363.

Thompson, J.C. 'Journal costs: perception and reality in the dialog', College and

Research Libraries, Vol. 49, No. 5, 1988.

Treece, J. M., 'Library Photocopying', UCLA Law Review, Vol 24, 1977, p. 1066.

Tseng, H.P., 'The Ethical aspects of photocopying as they pertain to the library, the user and the owner of copyright', Law Library Journal, Vol. 72, 1979, pp. 86-98.

University of New South Wales, The Implications for libraries of the amendments to the Copyright Act, University of New South Wales, Sydney, 1981.

University of New South Wales v. Moorehouse and Angus & Robertson (Publishers)

Pty. Ltd (1979) 49 ALJR 267.

93 Walsh, Ray, 'Special Libraries and the Copyright Act 1968-1980', Australian Special

Libraries News, Vol. 14, No. 1, March, 1981. pp. 12-17.

Weil, B.H. 'Copyright from the perspective of information users and their

intermediaries, especially librarians', The Serials librarian, Vol. 15, No's. 3/4, 1988, pp.

27-40.

'What is CAL?' pamphlett issued by the Copyright Agency Limited, 157 Liverpool

Street, Sydney, n.d.

Whitestone, P., Photocopying in Libraries: the librarians speak, Knowledge Industry

Publications, White Plains, New York, 1977.

Will, L. 'Do you photocopy? Your firm may be infringing upon the fair use doctrine',

Law Practice Management, January/February 1993, pp. 46-49.

Williams & Wilkins Co. v United States 487 F.2d 1354 (Ct. Cl.. 1973)

Young, J.E. 'Copyright and the new technologies - the case of library photocopying',

York, 1982. pp. 51-139.

94 APPENDIX A.

THE LITERATURE REVIEW

George Fry & Associates, ’Survey of copyrighted material reproduction practices in scientific and technical fields’, Bulletin of the Copyright Society of the

U.S.A., Vol. 11, No. 2, 1963.

This landmark survey, apparently the first of its kind, was conducted in 1962, before many of the photocopiers as we know them were available. Even so, it was estimated that 300 million photocopies were produced every month throughout America. The term used was 'photo duplication', and incorporated the Diazo, diffusion transfer,

Verifax, thermography, and electrostatic processes. The Verifax process was marketed by Eastman Kodak and the electrostatic process by Xerox Corporation. The survey's emphasis on photo duplication was caused by some preliminary investigations which found that "...it is in this area that the greatest misunderstanding and potential problems exist". 131 The survey targeted authors, publishers, and libraries concerned with scientific and technical literature, and also readers as well as manufacturers of photo duplication equipment. The method and findings for each group will be discussed separately. In all cases the identity of the respondents was not disclosed.

Authors.

A total of 733 questionnaires was sent to authors of scientific and technical literature.

The authors came from backgrounds of government, tertiary institutions and industry.

The response rate was 381, a return of 51.9%, which was considered abnormally high for a mail questionnaire by the researchers. The sample group was a good one - the researchers note that 76.7% of these had published one or more articles within the last twelve months. The survey found that "The basis objective of the author of scientific

131 George Fry & Associates, op. cit., p. 75.

95 articles and books is to disseminate information", that "The publication and dissemination of such information has not only an altruistic goal for the progress of science, but also serves to enhance the prestige of the author", and that "The vast majority of authors surveyed consider photo duplication of their articles for distribution to constitute either a definite advantage, or to be of no concern". 132

Publishers.

For this part of the survey, interviews were conducted with 38 publishers of books and journals, and 62 smaller publishers were contacted using mailed questionnaires. The response rate for the latter was 56.5%. Book publishers were generally not concerned with copying, particularly because of the high cost of copying at the time of the survey. Moreover, "From the usage standpoint, librarians in industrial organizations

(where some people feel that copyright violation is most flagrant) are unanimous in reporting that it is journal, and not book, material which is in constant demand and, therefore, it is subject to extensive facsimile duplication". 133 Currency of information, then as now, was of great importance. Relatively few publishers of journals expressed concern with photo duplication practices, seeing this as an extension of their own aim

- the dissemination of information. However, it was interesting to note that the larger the publisher the greater the concern. Clearly in these cases the concern is less research-oriented than economic. One smaller publisher admitted that photo duplication could even help circulation by stimulating subscriptions. Several others maintained that the circulation of copies of title and contents pages was an aid to increased circulation, since it was through that method that researchers initially became aware of journals. This attitude was more prevalent among journals published by scientific societies rather than by commercial publishers, the latter expressing concern that readers who see only copies of articles would not see the entire journal.

132 ibid, p. 81.

133 ibid, p. 85.

96 "This, of course, would bypass advertising content and would, in the long run, undermine the effectiveness of advertising". 134 The concern here has nothing to do with the protection of creativity, and everything to do with the economic success of the publishing company. A familiar aspect, and one not covered by any of the publishers in the survey, was raised by one scientist: "There is a lot of junk in the journal field today. Much of the stuff that gets published shouldn't in the first place".

135

Libraries.

Libraries were grouped into the categories of 1. public, private, and governmental libraries, 2. college and university libraries, and 3. industrial libraries. Thirty-one of the combined first two categories were contacted as well as forty-nine of the industrial libraries. 136 In addition, 88 additional industrial libraries were contacted by mailing out questionnaires, with a resulting response rate of 58%. Librarians had different restrictions to users. For example, the ordering and receiving of a reprinted article for circulation was rarely an option because of time constraints, although it was a favoured method when undertaken by the users themselves. The following comment is familiar to librarians thirty years on: "Every scientist who comes in here asking for an article thinks that the project he is working on is the most vital thing to the success of the company". 137 With copyright law (relating to photocopying) in its infancy, librarians had often to consult"... their company's legal counsel for information about rulings applicable to company practices. It is significant that no two legal opinions were in exact agreement". 138 In spite of this, the survey found that "Without

134 ibid., p. 91.

135 ibid, p. 106.

136 It is a pity that a combined category of'private, government and industrial libraries' was not included, as this is the defined group which makes up special libraries today.

137 George Fry & Associates, op. cit, p. 105.

138 ibid, p. 110.

97 exception, all librarians in the survey were aware of the law, although their knowledge varied considerably".139

Users.

Although not spelt out in the survey, it appeared that the authors doubled up as this group. Their preferred method of circulating material among themselves was to circulate the original paper, with photocopies ranking last in preference both for receiving material or for circulating it to others. Reprints were an important source.

Manufacturers.

"The interviews with a small group of manufacturers of facsimile duplicating equipment were conducted on a personal basis". 140 This statement gives no indication of how the findings of this particular part of the survey might be evaluated.

With little qualitative data available, little real evaluation could take place related to this particular survey for the purposes of a literature review. Overall, this survey found that, at the time of the report, "... no significant damage occurs to the copyright holders in the scientific and technical fields although duplication of this material is widespread and growing rapidly. Authors of scientific and technical journal articles are notably unconcerned with the problem. In fact, the majority of them actually consider the copying of their material to be an advantage to them. By far, the greatest percentage of authors are not paid for their contributions to scientific and technical journals and, therefore, suffer no economic damage, in the final analysis, authors are concerned only from the standpoint of misuse or plagiarism". 141 The survey further notes that: "On the other hand, some of the largest commercial publishers ... indicate

139 ibid., p. 110.

140 ibid, p. 80.

141 ibid., p. 71.

98 concern regarding current copying practices with respect to their copyrighted journals.

These publishers indicate that they can suffer potential damage through

- loss of circulation

- diminished sales of back issues, reprints, and preprints

- potential loss of advertising revenues

With the exception of a few specialised instances, there is no evidence to indicate that

current copying practices result in a significant dilution of the commercial publisher's

market for subscriptions. Several publishers and librarians indicate that duplication

may actually stimulate subscriptions to a given journal over a period of time". 142

The survey concludes: "In the final analysis, there is no indication that publishers have

suffered significantly from facsimile duplication activities to date. However, there is no indication that the Copyright Law has served as a barrier to the dissemination of scientific and technical information. Moreover, use of facsimile copying equipment by libraries, companies and research people is widely accepted and growing rapidly.

Awareness of the Copyright Law restrictions by librarians and others has served as a check to rampant multiple copying, which, if uncontrolled, could result in significant economic damage to publishers. Nearly all multiple copying now practiced appears to be more a matter of convenience for the users rather than an attempt to bypass the traditional rights and markets of the publisher, author, or other copyright owner". 143

Special Libraries Association, 'Survey of photocopying procedures in special libraries', Special Libraries, Vol. 67, Nos/ 5/6, May/June 1976. pp. 271-4.

This survey had three hypotheses: 1. That data on photocopying would not be held because libraries did not have photocopiers located in their libraries and would not be

142 ibid. p. 71-2.

143 ibid. p. 72-3.

99 aware of what was copied; 2. That the policy of parent organisations frequently does not allow employees to answer questions about internal operations, and 3. That many questionnaires would "go into the waste-paper basket".144. 7,200 questionnaires were mailed to members of the Special Libraries Section. Of these, only 1,300 or 18% were returned, proving the validity of the third hypothesis to the satisfaction of the researchers. Of these, 273 were not special libraries so 1,027 questionnaires from respondents were considered for analysis. The findings showed that periodicals were more frequently copied than any other item, with 62% of libraries copying between 1 and 1,000 pages per month of in-print periodicals. It is a pity that no further breakdown was given to indicate which end of the band between 1 and 1,000 the majority of libraries occupied. The survey also found that 96% of photocopying was done for internal use within the parent organisation. Although 52% of libraries had a

"book-copying machine" in their library, 62% of these being staff operated. 27% of libraries reported that the photocopiers were operated only by their own staff. The majority of libraries did not charge their own users for copying. This was a small and inconclusive survey. Intent on making libraries aware of the proposed U S. Copyright

Revision Bill and alarmed by the recent decision in the Williams & Wilkins case 145, it appeared to make a hurried attempt to get special librarians to make submissions to

Congress while at the same time attempt find out if there was anything to lobby about.

144 Special Libraries Association, op. cit., p. 271.

145 This case was the first concerned with photocopying in libraries and one of the most important in U.S. copyright case law. The case of Williams & Wilkins Co. v United States (487 F.2d. (Ct. Cl. 1973)) involved photocopying by scientists at the National Institute of Health and the National Medical Library, and the court initially found that the defendants had infringed copyright. This decision was later taken to an appellate court where it was narrowly reversed by a seven judge panel with four in favour of a reversal and three against. In this appeal the court stressed that freedom from the "taint" (at 1354) of commercial gain was essential to its finding that the copying was 'fair use'. In fact, there was a strong implication that the finding would have gone the other way if there had been any motive of commercial gain. It is interesting to note that the defendants in that case, the National Library of Medicine and the National institute of Health had in their possession approximately one hundred thousand photocopies of articles per year from journals. This landmark decision, typifying the struggle between publishers and libraries over copyright, was later affirmed in the United States Supreme Court (420 F.2d. U.S. 376 (1975)), albeit with an equally divided court.

100 Whitestone, P., Photocopying in Libraries: the librarians speak, Knowledge

Industry Publications, White Plains, New York, 1977.

One important survey was conducted in 1977 by Patricia Whitestone. The resulting report aimed to "...elicit, through questionnaires and interviews, an accurate picture of the current extent and significance of library photocopying".146 In order to do this,

Whitestone mailed a questionnaire to 280 libraries all over America and Canada, to which 138 libraries responded - a response rate of 51%. The mailing was followed up by telephone interviews with a large range of public, academic, special and government libraries. In addition, personal interviews were conducted with a number of large public libraries, including the New York Public Library, the National Library of

Medicine, and Ohio State University. Responding libraries were guaranteed complete anonymity, since Whitestone recognised photocopying by libraries as "a touchy issue".147 Whitestone summarises the reason for her survey: "The library photocopying problem arose when man's use of technology, in the form of the automatic copier, and the library's desire to provide better service to patrons began to conflict with the property rights of copyright owners. This contretemps resulted in an historic suit

(Williams & Wilkins v the United States) but was never fully resolved by the courts".148

All of the libraries surveyed by Whitestone were large, selected on the assumption that large libraries would be more likely offenders of copyright laws. The 50 special libraries chosen were selected because they had substantial special collections serving various types of large organisations. The survey categories for collection size ranged from 0 - 500,000 volumes to 4 - 5.5 million volumes. 95.5% of special libraries fell, not unnaturally, into the lowest range. All libraries in all categories had at least one

146 Whitestone, op. cit., p.4.

147 ibid., p.4.

148 ibid., p. 6.

101 photocopier, with 45.5% of special libraries having between one and two machines.

Because the survey was aimed at large libraries, much of the data was of limited use for the purposes of this thesis. For example, the survey found that 86.4% of special libraries had between 0 and 5,000 periodical subscriptions, and that 77% of special libraries had a budget of between 0 and $500,000. Although some 'smaller libraries' were the subject of interviews, these were mainly public libraries, with no data published for the single special library mentioned. Overall, the survey found that periodicals were more heavily copied than any other published material. However, it also found that the majority of photocopies were done of journals for inter-library loans rather than for the library's own patrons - a factor which is significantly different for special libraries. Ten cents per page was the most commonly charged fee for photocopies. A common factor however, seemed to be in the: "... dearth of comprehensive recordkeeping by librarians on photocopying, for reasons ranging from fear to lack of a central authority with the library". 149

Whitestone notes that while many libraries received dramatic budget cuts in the mid

Whitestone found that 30% of the librarians surveyed thought that they should be free to make a single copy of anything150, and concludes that"... photocopying is an integral part of current library operations". 151 "The basic feeling gleaned from

149 ibid., p. 74.

150 ibid., p. 51.

151 ibid., p. 94.

102 interviews conducted for this report was that librarians felt that they provide needed

information to the public, and therefore should be free to photocopy materials in order

to fulfil this mission".152 Whitestone concludes: "While the actual extent of library

photocopying is difficult to measure, partly because of libraries' own inadequate

recordkeeping, there is every reason to assume that photocopying by libraries will

continue to grow.." 153

Hebert, F., Photocopying in Canadian Libraries: report of a national study,

Canadian Library Association, Toronto, 1987.

Francois Hebert's study was conducted in order to "...estimate the volume, nature and

configuration of photocopying in academic, public and special libraries in Canada, and to analyse copying policies and practices". 154 To do this, stratified samples were taken from a national list, resulting in questionnaires being completed by libraries across Canada. Results were then extrapolated for national estimates. Special libraries covered by the survey included those from federal government and provincial government sectors. It also included those which existed to provide information services to commercial or for-profit organisations as well as those which catered for non-profit organisations.

At the time this survey was conducted, Canadian librarians relied upon a Copyright

Act which had come into being in 1924, and many librarians and others affected by copyright laws felt that "...time and technology have made revisions to the act long overdue". 155 Hebert noted the transition from the days "A generation ago, patrons

152 ibid., p. 96.

153 ibid., p. 91.

154 Hebert, op. cit., p.l.

155 Hopkins, op. cit., p.273.

103 consulted works in the library collection, took notes to summarize information, and laboriously copied the sentences intended for later quotation". 156 Because of the total lack of legislative guidance for any form of reproduction, Hebert did not restrict his study to the use of photocopiers, but covered all types of copying equipment, including microform cameras, microform reader/printers, facsimile transmission senders/receivers, VCRs and computer printers.

The 1,724 special libraries covered by the survey represented 48% of all libraries in

Canada. Of these 1,724, 1,506 or 87% had photocopiers "located on their premises".157 Nationally, this meant that special libraries had 34% of all photocopying machines. The survey also found that, in terms of national estimates, special libraries also accounted for " ... 38 per cent of exposures". 158 In spite of the large amounts of copying done by special libraries, the survey found that 92% of special libraries did not have a written copying policy. Special librarians were asked if their library posted "... copyright notices on or near photocopying machines".159 The survey found that 86% of special libraries did not post copyright notices on or near their copying machines.

The use of new technologies for copying, although much advanced in terms of speed and reduced cost, still did not affect the legal interpretation of what exactly constituted

"any fair dealing ... for the purposes of private study, research.." as defined in section

17 (2) of the Canadian Copyright Act. Librarians had to rely very much on case law to determine what fair dealing had been defined to be by the courts at any one time.160

156 Hebert, op. cit., p.5.

157 ibid., p.21.

158 ibid., p.2.

159 ibid., p.73.

160 This is also the case in Australia, the United Kingdom and America where it is considered impossible to precisely define fair dealing and it is up to the courts to consider the application of the doctrine to each individual case.

104 The problems of coping with such dated legislation were recognised by the Economic

Council of Canada in 1971 when it noted that an "...unreasonable burden is being thrown on the consciences and amateur legal expertise of such people as librarians and copying-machine operators" 161 Hebert's study, although it must have been eagerly anticipated by librarians at the time, did little to address this problem.

Nemchek, Lee R., ’Copyright Compliance by Law Firms (17 U.S.C. s 108): An ethical dilemma for librarians.', Law Library Journal, 83, 1991, pp. 653-683.

In her article published in 1991, Lee Nemcheck looked at compliance by law firms with the U.S. Copyright Act. Nemchek analysed the results of a survey of 116 law firm libraries taken from the 1989-1990 Southern California Association of Law

Libraries Membership Directory. The survey was designed "to illuminate varying degrees of compliance and noncompliance with the existing laws, both at the library level and at the firm management level".162 Stating that "Statutory language notwithstanding, the issues of which photocopying practices are legal and which are illegal in the library context are far from clear-cut, and librarians have been confused from the outset" 163, Nemchek hypothesised that few law firms would have written copyright policies. However, she accepted that evidence of attempts at compliance and at the dissemination of information about copyright were clearly apparent in what small amount of literature there was on the subject.

Nemchek's survey of 116 law firms librarians resulted in a return of 82 questionnaires, a healthy response rate of 71%. Findings included the following:

161 Economic Council of Canada. Report on Intellectual and Industrial Property, Information Canada, Ottawa, 1971 as cited in Hopkins, op. cit., p.273.

162 Nemchek, op. cit., p. 660.

163 ibid., p. 654.

105 - Only two respondents indicated that their law firm had a written policy

regarding copyright compliance.

- None of the respondents indicated that they stamped photocopies with a

required under the Copyright Act.)

- Only one respondent claimed to have contacted and paid royalties to

- None of the respondents paid fees to, or was registered with, the Copyright

Clearance Centre. This was felt to be indicative of a number of factors,

including lack of marketing by the CCC, an unwillingness to add record

keeping to already busy schedules, and a tendency to think that the CCC did not in fact represent all legal publishers and was to some extent itself unethical.

- 43% (35) of respondents circulated originals and tables of contents rather than

full copies of newsletters, magazines etc. This point is most interesting for the

purposes of this thesis as it is assumed that the photocopying of tables of

contents is one of the largest areas of breach among special librarians in New

South Wales.

Nemchek is clearly aware of at least part of the extent of breach of copyright by lawyers: "...it is to be expected that lawyers, whose work product relies heavily upon legal research, would want to focus as little attention as possible upon themselves if, in fact, the most expedient and cost-efficient methods of researching and keeping current in their field include inconspicuous photocopying in violation of copyright laws".164 In line with these expectations, Nemchek found that"... few hard and fast rules are followed. ... photocopying requests are evaluated on an individual basis by most law firm librarians, rather than handled consistently in accordance with a firm or library policy". 165

164 ibid., p. 658.

165 ibid., p. 665. 106 The pressure that might be brought to bear on librarians by senior lawyers is recognised: ’’For various reasons ... one of which may be the fear of being disciplined or fired from one's job, law firms librarians have exhibited a reluctance to take up this responsibility".166 In addition, comments from the survey indicated "... an unwillingness at the firm management level to consider copyright compliance as a serious issue.."167

In spite of her recognition of this pressure, Nemchek, by her opening quote "True civilisation is measured by the extent of obedience to the unenforceable" (Lord

Moulton, 1922), places the ethical responsibility for adherence to copyright laws squarely on the shoulders of the librarian. She advocates a responsibility on the part of librarians for keeping up with copyright laws, for keeping both employer and employees informed about copyright laws and "... to do what is within their power, personally and professionally, to comply with them".168 Taking into account the results of her survey Nemchek pinpoints the justification for accepting responsibility: "At the heart of the copyright compliance issue, however, is the principle that moral and ethical persons cannot justify habitually breaking a particular law: not for the benefit of their employers, not for the benefit of their clients, certainly not for their own benefit, not out of ignorance, and not because they personally do not agree with the law".169

Tepper, Laurie C., 'Copyright Law and Library Photocopying: An historical survey, Law Library Journal, 84, 1992, pp. 341- 363.

Laurie C. Tepper's historical survey of copyright law and photocopying, based on her master's thesis for the University of North Carolina School of Information and Library

166 ibid., p.659.

167 ibid., p. 665.

168 ibid., p. 670.

169 ibid., p. 671-2

107 Science, is an interesting introduction to the situation confronting libraries in America.

Tepper contends that copyright law is bom of technology, and takes us through legal history from the first U S. Copyright Act in 1790 to the Copyright Act of 1909 which stated, in part,: "... any person entitled thereto, upon complying with the provisions of this Act, shall have the exclusive right: (a) To print, reprint, publish, copy, and vend the copyrighted work".170

Tepper continues: "The irony of the apparent effect of the 1909 Copyright Act in making any library photocopying an infringement of copyright is underscored by consideration of the common use of library materials by researchers. Clearly, copious copying has long been routine practice for library patrons". 171 Following on from the

1909 Act, there was an agreement by the Joint Committee on Materials for Research of the American Council of Learned Societies and the Social Research Council on behalf of both libraries and publishers. This was called the Gentlemen's Agreement of 1935, or sometimes the Interlibrary Loan Code of 1935. The essence of the agreement was an attempt to mitigate the rigidity of the 1909 Act by defining what might be called fair use of library resources within reasonable boundaries. The doctrine of fair use was devised by the American courts in order to permit photocopying in certain circumstances. In 1940 the American Library Association adopted the Gentlemen's

Agreement with few alterations and renamed it the Reproduction of Materials Code.

Tepper states: "Several decades would pass before Congress finally stepped into the breach to deal with the problems posed to copyright law by ever-improving copying technology".172 An American lawyer sympathises: "In the meantime, the troublesome issues presented by new technologies were left to the courts". 173 Parallel with the

170 Tepper, op. cit., p. 34.

171 ibid., p. 34.

172 ibid., p. 347.

173 Young, op. cit., p. 61. 108 improved technology, notably in the form of the Xerox photocopier, came the

'information explosion' resulting in a situation which exacerbated publisher discontent.

In addition "Library photocopying was also increasing as the result of the appearance of more and better indexing services, publications of journal article abstracts, and bibliographic databases, such as the national Library of Medicine's Medline database".

174 As a result, Congress established CONTU, or the Commission on New

Technological Uses of Copyrighted Works in 1974. Tepper then goes on to discuss the first judicial challenge to copyright law, the important case of Williams & Wilkins Co. v United States. She notes that throughout its hearings, the case and its subsequent appeal and affirmation had an almost consistently divided court in favour of either libraries or publishers. The court found that not only would research in medical science be hampered by an inability to photocopy, but that there was no financial harm to the publisher from the copying. The current U.S. copyright law, the Copyright Revision

Act of 1976, progressed exceedingly slowly, or not at all, through six congresses before action was finally taken and it passed through the 94th Congress and both the

Senate and the House of Representatives in 1976. This Act finally formally recognised and adopted the fair use limitation. In addition, libraries were protected from liability for users making their own copies using library equipment, if the photocopiers conveyed a copyright warning sign.

Tepper covers the establishment of the Copyright Clearance Centre (CCC) by the

Association of American Publishers in 1977, but does not deal with the criticisms surrounding this organisation - that it was not representative of all publishers, that it charged exorbitant fees - that are apparent in other works.

Tepper goes on to discuss a problem common to Australian special libraries: "One of the largest gray areas in the Copyright Revision Act of 1976 is the extent to which

174 Tepper, op. cit., p. 348.

109 libraries in for-profit institutions can avail themselves of the protection of section 108

to make photocopies for the use of the institutions' employees without payment of

copying fees. It is clear that libraries in for-profit institutions are prohibited from

making multiple copies using a single subscription to provide copies to multiple

employees". 175 U.S. court cases which arose from this problem area included Harper

& Row Publishers v. American Cyanamid 176 and Harper & Row Publishers v Squibb

Corp. 177 Both of these cases were settled out of court thereby leaving no judicial

opinion on the matter.

A later case, and one of continuing importance178, was the Texaco case, where,

although payments had been made to the CCC, it was held that these were insufficient.

In the case of American Geophysical Union v. Texaco179 six journal publishers sued

Texaco for illegal photocopying by their scientists. It took the court seven years to find

that there had been a copyright violation. The Texaco decision differed from that of

Williams & Wilkins as in that case copying was being done by a non-profit organisation

for the advancement of science. This finding is thought by the American Association of

Research Libraries, the Association of Research Libraries and the Special Libraries

Association to be an important one for librarians as it is seen to oppose the doctrine of

fair use and they are to file an indication of their concerns to the U.S. Court of

Appeals.180

175 ibid., p. 358.

176 81 Civ. 7813 (S.D.N.Y.)

177 82 Civ. 2363 (S.D.N.Y.)

178 This case continues to be the subject of much discussion among American librarians and was the subject of a seminar (called 'The Copyright Dilemma: is there life after the Texaco decision?) held in October 1993 in San Francisco by the Special Libraries Association.

179American Geophysical Union v Texaco. 802 F. Supp. 1 (S.D.N.Y. 1992)).

180 Estes, Mark E. (President, Americal Association of Law Libraries) 'Amicus Curiae Brief on American Geophysical Union v. Texaco', cni-copyright electronic discussion list memo, 26 Feburary 1993.

110 As has been pointed out elsewhere: "Both plaintiffs and defendants in copyright litigation are confronted with principles of law which have been applied inconsistently”.181

Tepper goes on to relate the 1991 case of Washington Business Information, Inc v

Collier, Shannon & Scott182 caused much interest among librarians. Collier Shannon and Scott being a law firm, this case was much cited in library journals. This case was also settled out of court, and although Tepper states that the terms of settlement were never made public, an article in the Times of 16 April 1991 (p.29) with the heading

"Copy at your cost" cited an earlier settlement of $100,000, and the American Bar

Association Journal, in its issue of May 1991 (p.32) noted that the amount claimed in the infringement suit was $14 million.

Tepper concludes her history with the interesting point that "Copyright is an interest in property that represents economic value... however... the Constitution makes it clear that the authority given Congress to create copyright is to be used for the purpose of promoting science and the 'useful arts'". 183 Australia's Constitution bestows on the

Commonwealth Parliament the power to makes laws for the on peace, order and good government in relation to, among other things, copyright. This is a long way from the

American model. Although the querying of just how much of the copyright legislation is dedicated to creativity and social justice for all, and how much to property law and economic values would make a useful study, that is not the purpose of this thesis.

181 Gupta, op. cit., p. 103.

182 (41 Pat. Trademark & Copyright J. (BNA) 389)

183 Tepper, op. cit., p. 362- 363.

Ill APPENDIX B.

Questionnaire development.

Compiling this particular questionnaire was a task which required some extensive background reading. An interesting and useful general introductory article was that by

Fox et al. "Mail Survey Response Rate" 184 which looked at the effect of such factors as university sponsorship, stamped return postage, and questionnaire colour among others.

Judd et al. point out that: "An essential prerequisite for developing properly worded questions is to have a clear conceptual idea of just what content is to be measured".185

People who have not thought through an issue for themselves do get carried away with giving their opinion when answering questions and instead of admitting lack of knowledge about an area might provide what has been called a "doorstep opinion" rather than a reasoned one. As Judd et al. point out: "It may be important to measure the intensity of the attitude with a question such as "How strongly do you feel about this issue?". 186

However, as well as providing answers to specific questions, the questionnaire was also measuring librarian's attitudes about the seriousness of breaching copyright, a potentially sensitive area. Cannell et al. (1981) found that "Reporting of an event is likely to be distorted in a socially desirable direction. If the event is perceived as embarrassing, sensitive, threatening, or divergent from one's self-image, it is likely not

184 Fox, R.J., Crask, M.R. & Kim, J., 'Mail survey response rate: a meta-analysis of selected techniques for inducing response', Public Opinion Quarterly, 52, 467-491.

185 Judd, C.M., Smith, E.R., Kidder, L.H., Research Methods in Social Relations, 6th edition, Holt, Rinehart and Winston, London, 1991. p. 235.

186 ibid., p. 231.

112 to be reported at all or to be distorted in a desirable direction". 187 The researchers go on to cite a number of studies which support the over reporting of desirable behaviour

(saving money, voting) and under reporting of undesirable behaviour (bankruptcy, drunken driving). To avoid the under reporting of what is in fact illegal and therefore socially undesirable behaviour the questionnaire had to be as remote from the user as possible. Judd et al. point out: "When one possible response is marginally socially undesirable, the wording can "explain away" the behavior and make respondents more comfortable in giving that reply. (An example is) "Did you vote in the presidential election last November, or didn't you find the time to vote?"188 For the purposes of this survey, time constraints are proposed as a possible excuse for not being aware of copyright. Judd et al. point out that written questionnaires give respondents "... a greater feeling of anonymity and therefore encouraging open responses to sensitive questions". 189 In addition, it must be remembered that the results of the thesis would be readily available and might be used for legal proceedings against special libraries.

Because of these reasons, and because it was decided that accuracy of data was more important than the ability to follow up individual questionnaires, the names of individuals and of organisations were omitted. To encourage reporting of threatening behavioural items, Judd et al. (1991) state that "The most valid results seemed to arise from ... long questions instead of short ones.." 190 Dillman (1978) recommends that a

"...a threatening behavioral questions should be embedded in a connected sequence of questions". 191

187 Cannell, C.F., Miller, P.V. & Oksenberg, L., 'Research on interviewing techniques', Leinhardt, S. (ed.) Sociological Methodology 1981, Jossey- Bass, San Francisco, 1981. p. 398.

188 Judd, op. cit., p. 248.

189 ibid., p. 216.

190 ibid., p. 248.

191 ibid., p. 248.

113 The structure of the questions was carefully considered: "...open-ended questions may be more motivating to respondents". 192 Geer points out that "...responses from open- ended questions proved more difficult and expensive to code and analyse than those from closed-ended questions". 193

Although question 10 was somewhat lengthy, this is not a bad thing. Cannell et al. cite

"Matarazzo's studies (which) demonstrated that respondents in personnel interviews tended to adjust the length of their responses to the length of the interviewer's inquiries, a finding that challenge the usual principle of making questions short and simple". 194

Their own studies showed that in a survey of health problems, respondents did not give longer answers to lengthy questions, but they did report a greater number of events relevant to the question. When both long and short questions were interspersed, more reporting of relevant events still occurred than was the case with all short questions.

A question which asked respondents which category of staff did the photocopying stated specific positions because "It is always important to frame questions at an appropriate level of specificity, avoiding both questions that are so general as to be meaningless and questions that are too specific to be answered". 195 Judd et al. acknowledge the difficulty in coding the responses in an effective manner. "Most researchers today use mainly closed-ended questions in attitude measurement, but with a sprinkling of open-ended questions to obtain reasons of illustrations for attitudes on key issues. The open-ended responses can help in the formulation of new hypotheses and are often quoted to lend interest and concreteness to reports of research results".196

192 ibid., p. 239.

193 Geer, J.G., 'Do open-ended questions measure "salient" issues?, Public Opinion Quarterly, 55, 1991, pp. 360-370.

194 Cannell, op. cit., p. 405.

195 Judd, op. cit., p. 232.

196 ibid., p. 240.

114 APPENDIX C. Letter accompanying questionnaire.

11 November 1992

Dear Sir/Madam,

I am preparing a Master's thesis for the School of Information, Library and Archive

Studies at the University of New South Wales on the subject "Copyright Issues in

Special Libraries" Copyright is an area in which there is much controversy and concern

among special librarians. This study will be restricted to small special libraries. That is,

ones with a collection size of less than 10,000 volumes. It is hoped that this thesis will

result in an important clarification of copyright issues for these libraries.

The purpose of this letter is to request that you complete the attached questionnaire

about copyright issues in your library. Please note that this questionnaire is intended to

cover printed material only and does not cover audio-visual material.

Please be assured that at no time will any data be published that can connect your

answers with your organisation. All answers are treated as completely confidential.

If you begin to complete the questionnaire, but do not complete it for one reason or

another, its return would still be useful.

Your assistance is greatly appreciated.

Yours sincerely,

Jackie Patrick B.A. (L.S.), Grad. Dip. Adv. Lib. Stud.

6/57 Prince Albert Street

Mosman NSW 2088

Phone: (H) 969 4040

(W) 697 2683

115 APPENDIX D.

______Questionnaire: Copyright Issues in Special Libraries______(If you wish to add comments after any question please do so)

Ql. What is the main subject area of your library?

Q2. Is your library part of a State or Federal Government department? (Circle one)

Yes/No

If yes, go to question 2. If no, go to question 3

Q3. Does your library or your administrative section pay copyright royalties to CAL or some other collection agency?

Yes/No

Please explain.

Q4. Is your library part of an educational institution? (Circle one)

Yes/No

Q5. (a) How many full-time staff do you have? (Include yourself) (b) How many part-time staff do you have? (Include yourself)

Q6. Who does the photocopying in your library? (Tick all that apply.) The Head Librarian Librarian Library Technician Other library staff Users Photocopy section Other (Please specify)

116 Q7. Do you have any of the following equipment located within the library? (Tick all that apply. If there is more than one of each, please indicate the number.) Fax machine Microfiche reader/printer Photocopier

Q8. Do you have a sign near any of these machines warning users of Copyright Act limitations? Please circle Yes or No. Is it A4 size or some other size? Please indicate.

Equipment Copyright sign Size o f sign Fax machine Yes/No Microfiche reader/printer Yes/No Photocopier Yes/No

Q9. Does your library produce a library circular/bulletin to keep users up to date with library acquisitions? (Circle one)

Yes/No

Q9a. How frequently? (Circle one)

Daily/Weekly/Fortnightly/Monthly/Quarterly/Yearly/Irregularly

Q9b. Of what does it consist? (For example, contents pages, title pages, abstracts prepared by library staff, etc.)

117 Q10.1 am trying to find out what is copied and the extent of copying of items. Please take the phrase 'periodicalpublication’ to include any item that is published on a periodical basis such as journals, newspapers, Hansards, annual reports, loose leaf bulletins, updates, etc. If you are unsure if an item is a periodical publication, specify the item in ’other'. Please tick the appropriate answer in each case.

Do you ever photocopy: Frequently Regularly Sometimes_Never (i.e. at least (i.e. at least (i.e. maybe. once a week) once a month) every few MATERIAL months) Whole periodical publications? 1 i , More than 2 articles (not on the same subject) from a periodical publication?

Contents pages of periodical publications?

More than 10% of a book?

Whole books?

Other? (please specify.)

118 Qll. How do users request photocopies? (Please tick all that apply.) Frequently Regularly Sometimes Never (i.e. at least (i.e. at least (i.e. maybe once a week) once a month) every few MEANS months) By telephone

In person

By memo or letter

By electronic mail

By request form

Other (please specify)

Q12. Are the majority ofphotocopy requests for material that is: (Please circle one.)

Out of print OR Currently published

Q13. Do you require that local (i.e. not remote) users complete a declaration form for every item photocopied? (Circle one)

Yes/No

If 'No', go to Question 14

Q13a. Do local users always sign the declaration forms? (Circle one)

Yes/No

Q13b. Do you keep the declaration forms? (Circle one)

Yes/No

If'No', go to question 14.

119 Q13c. How long do you keep declaration forms ? (Tick one) Less than one year One year Two years Three years Four years More than 4 years

QI3d. In what order do you keep the declaration forms? Alphabetical Chronological Other

Q14. Do you make some notification on all photocopies to denote that they were done by the library ? (Circle one)

Yes/No

Q15. Does your library charge for photocopies? (Circle one)

Yes/No

If yes, how much per photocopy?

Q16. Do you think that users who do their own photocopying are aware of copyright law? (Circle one)

Yes/No

Q16a. If yes, how do you think that they became aware of this law?

120 Q17. Have you ever read either the Copyright Act or the Australian Copyright Council's bulletin "Libraries and Copyright"? (Circle as appropriate.)

"Libraries and Copyright"

Q18. In the past two years, have you attended seminars on copyright, or professional meetings where copyright was discussed? (Circle one)

Yes/No

Q18a. Do you recall who organised the seminars or meetings? (Please list the bodies who organised the seminars or meetings.)

Q19. To what extent have you been able to keep up with the literature that deals with copyright? (Tick one.)

Never have time Read some articles Try to keep up with everything

Q20. There are extremes of view relating to copyright law. Some people support all aspects of copyright law whereas others think that there are aspects which are not viable. Do you think that copyright laws are reasonable? (Circle one.)

Yes/No

Could you elaborate?

Q21. Please discuss any problems or issues that arise with copyright that have not been covered by this questionnaire.

121 APPENDIX E.

The Results of the Survey

Ql. What is the main subject area of your library?

183 respondents (97%, n=188) answered this question. Subject areas were many and diverse. Although the classification of answers into a broad library subject type (e.g.

Health, Law, Architecture etc.) was originally considered, this did not eventuate because the links may have allowed identification of the libraries for the purpose of investigation by the Copyright Agency Limited. Only 7 of the total of 188 responses did not give a subject area, one stating: "Since identification of the subject area would unequivocally identify this library, I decline to answer this question"

Q2. Is your library part of a State or Federal Government department ? (Circle one)

Yes/No

77 or 42% of respondents (n=185) answered 'Yes' to this question.

One respondent indicated 'no' but noted "local government" next to the response. A question of definition was raised in those circumstances where the parent organisation is not seen to be part of a government department, but is directly funded by one:

"Although our funding comes in part from (parent body)"

If yes, go to question 2. If no, go to question 3.

At the time of the pilot study, the question about the subject matter of the library was not given a question number, but thought of as a preliminary question. At the last

122 minute, before sending out the questionnaire, it was given the prefix Q1 and following questions were renumbered. Unfortunately, the instruction that follows the former question number 1 was not changed, and elicited some comments ("tricky!'* being the most popular) and confusion. Although many respondents rightly ignored the instruction, the results relating to the following question unfortunately cannot be relied upon. However, the comments are most revealing and indicate an area worthy of much closer investigation.

Q3. Does your library or your administrative section pay copyright royalties to CAL or some other collection agency?

Yes/No

Please explain.

11 (8%, n=146) respondents said that they were making payments to CAL.

This question elicited many comments from both those who answered 'yes' and those who answered 'no'. The following comments come from those who answered 'yes', they did make payments to CAL. However, even some of these show a lack of understanding about the category of their institution under the Copyright Act, and/or of how CAL works.

"We have not reached agreement regarding our press clips. The bill, when agreed upon, should be approx 2,500 p.a"

"We have a public training enterprise attached to our organisation who pay royalties to

CAL for journal article copies included in course notes"

123 "The (library) is part of the (parent body) portfolio, (parent body) have made an agreement with CAL"

"Mainly for our Education & Information Section - for publicity and printing purposes"

"Administrative section pays copyright loyalties to CAL for material copied for educational purposes ie for trainee counsellors"

"Please note that although we are part of a federal Government department we have been designated as an education institution. We are a hospital and one area board has advised us that we are to apply for a CAL Licence"

"Copyright royalties are paid to the publishers of any material reproduced, in our own publications"

"We are part of a wider library system that pays copyright royalties"

"We only pay copyright if we need to reproduce something for any publication or exhibition most of our photocopying is single items"

"Please send information"

124 "We have not yet determined whether we need to rely on s. 183 of whether, as a research body, we can rely on s.40. We are in the process of seeking legal advice on this issue"

"We are a publishing company and therefore have CAL working for us to elicit monies on our behalf'

"Not at present - looking into this"

"Because we are not an educational institution and the public who use our library are mostly photocopying our own departmental publications"

"Not to my knowledge"

"I do not believe so"

Only recently found out about this"

"Have never been requested to do so"

"Only take (sic) part of books and journals for study purposes"

"Various groups on campus may do so eg nursing admin etc. we do not"

"The (named) division may (and should) pay to CAL. We do no photocopying for patrons; and section 39A is clearly displayed at each copier"

"We do not know about CAL"

125 "Not as far as I am aware. Certainly I do not have anything to do with it"

"Because we did not know (before your questionnaire made me look it up) about CAL.

Because if we had to pay royalties for contents pages, my superiors may well cut it out

- depending on costs"

"British Library Document Delivery Service"

On the other hand, some 'no' responses were quite legitimate, and showed a greater understanding of legal requirements under the Act:

"We are not copying any material on which there is a copyright"

"Do not do multiple copies. Most copying is done by users"

"So far as I know, no photocopying gets done here that warrants payment to an outside body"

"We don't usually photocopy information, rather phone the relevant company and have them send more literature"

"Insufficient copying done"

"No copyright material is involved"

Some of these 'no' responses reflect the fact that the CAL agreement with

Commonwealth Government departments was very close to being resolved.

"Currently being discussed at senior management level"

126 "It is being investigated/negotiated but nothing has been resolved yet"

And of the don't knows:

"This library doesn't. I'm not sure whether (parent body) does"

"Situation unknown, negotiations between (parent body) and Copyright Council in process"

"This library is part of a network. The main library for NSW may pay but am unsure of this (they may pay on behalf of the network libraries in NSW)"

Q4. Is your library part of an educational institution? (Circle one)

Yes/No

Only 26 respondents (14%, n=181) said that they were part of an educational institution. Of these, only 5 claimed to make payments to CAL in question 3, although this was not adequately investigated. 155 respondents (86%) said that they were not part of an educational institution.

Comments included:

"(name of library), but (named) University for Post-Graduate program"

"No, but agency does run training courses"

"Part of hospital which is attached to (named) University"

"Yes, only insofar as a large public hospital's an undergrad, and postgrad, educational institution"

127 "No, but a lawyer from CAL said that (name of library) would be regarded as such for the purposes of in-house training. Haven't used this"

"Again indirectly - our students come from (named) Uni"

"Sort of - we are a teaching hospital of (named) University; however, our primary purpose is not as an educational institution"

128 Q5. (a) How many full-time staff do you have? (Include yourself) (b) How many part-time staff do you have? (Include yourself)

184 respondents replied to one or both parts of this question. The maximum number of staff working in any one special library was 8 full-time. The minimum was 0 since some questionnaires were completed by a secretary or clerical assistant who looked after very small libraries which technically had no staff. The average (mean), however, was

1.4 persons per library. One respondent indicated 140 staff but this was considered to include all staff members within the organization.

The responses to part (a) were as follows (n=143):

No. of full-time staff No. of responses

1.5 1

2 33

3 19

4 8

5 3

6 2

129 The responses to part (b) were as follows (n=106):

No. of part-time staff No. of responses

.4 1

.75 1

1 71

2 24

3 3

4 2

5 1

6 1

12 1

13 1

Q6. Who does the photocopying in your library? (Tick all that apply.)

Head Librarian 98 )

Librarian 86 )

Library Technician 57 )

Other library staff 75 ) n = 187

Users 139 )

Photocopy section 25 )

Other 20 )

187 respondents answered this question with the results noted above. Users did by far the most photocopying, emphasising the need for notification of Copyright requirements by the use of a sign by the photocopier in line with section 3 9 A.

"Other" included the following:

Education staff

Whoever is available

130 Lecturers, admin, staff

Administrative assistant

Volunteers

Admin, clerk

Any member of the organisation if other photocopiers are tied up

Staff

Staff of the department

Another busines area of the company

All staff

Assistance as available

Others from other divisions use it because it is convenient

Volunteers

General clerical staff

Admin assistant

Educators

Two respondents did not specify 'other' as requested.

Q7. Do you have any of the following equipment located within the library? (Tick all that apply. If there is more than one of each, please indicate the number.)

Fax machine 52)

Microfiche reader/printer 87 ) n=149

Photocopier 128)

149 respondents answered this question, with the results shown above. 13 libraries had

2 photocopiers and 3 libraries had 3 photocopiers - all remaining libraries (112) presumably had one photocopier. If the respondent crossed out the word 'printer' from

131 the phrase 'microfiche reader/printer' then this was ignored as the presence of a microfiche reader did not have any implications for copyright.

Q8. Do you have a sign near any of these machines warning users of Copyright Act limitations? Please circle Yes or No. Is it A4 size or some other size? Please indicate.

Equipment s.39A sign Fax machine Yes/No Yes =4 or 7%; No=50 or 93% (n=54)

Microfiche reader/printer Yes/No Yes =20 or 26%; No=57 or 74% (n=77) Photocopier Yes/No Yes=98 or 67%; No=48 or 33% (n=146)

Eauipment Size of sign Fax machine A4 = 3 (n = 4) Other size not given Microfiche reader/printer A4 = 14 (n = 18) Other sizes: A3,B5,15 x 7, 100 x 100. Photocopier A4 = 78 (n = 94)

Other sizes: A3, A5, B5, Folio, 8x5 cm,

12 x 8, 14 x 20 cm, 20 x 30 cm, 60 x 30 cm

Unfortunately, not all respondents who said that they had a sign gave the size of the sign.

Q9. Does your library produce a library circular/bulletin to keep users up to date with library acquisitions? (Circle one)

Yes/No

132 154 or 83% (n = 186) of respondents produced a library circular or bulletin, or

provided information for distribution within their organisation.

Q9a. How frequently ? (Circle one)

Daily None

Weekly 26 or 13%

Fortnightly 11 or 6%

Monthly 68 or 35%

Quarterly 30 or 16%

Yearly 2 or 1%

Irregularly 2 or 1%

Another category included by respondents was 'bimonthly' with 10 or 7% of

respondents choosing this category. One respondent produced a half-yearly bulletin.

Four respondents produced two bulletins, two a weekly and a monthly, and the other two a weekly and a quarterly bulletin. Three respondents contributed to a parent body

publication.

Q9b. Of what does it consist? (For example, contents pages, title pages,

abstracts prepared by library staff, etc.)

The responses fell into the following categories: (n = 156)

(Photocopied) contents pages of serials - 51

(Photocopied) title pages of books - 19

Full or partial bibliographic details (often from catalogue) - 60

Abstracts (own creation) - 38

Subject bibliographies - 8

Other- 61

133 'Other' included the following:

Professional development courses, conferences

News from various parts of the organisation

Extracts from legal cases, Hansards, newspapers

Items of interest to members of the organisation/trade news

Missing items

New developments in the library, promotion of services

Reviews of books by members of the organisation

Print-outs from online databases

Print-outs from in-house databases

Departmental circulars

Client proposals

Print-outs from online catalogue

Copies of catalogue cards

Complete copies of new legislation

Tables of sentencing decisions, important judgements

Information about new products

Request forms

Articles of interest

One remarkable respondent is worth mentioning separately as having obtained copyright clearance from 200 publishers of serials in order to photocopy contents pages and distribute them on a regular basis.

134 Q10.1 am trying to find out what is copied and the extent of copying of items. Please take the phrase 'periodical publication' to include any item that is published on a periodical basis such as journals, newspapers, Hansards, annual reports, loose leaf bulletins, updates, etc. If you are unsure if an item is a periodical publication, please specify the item in 'other'. Please tick the appropriate answer in each case.

Do you ever photocopy:

Frequently Regularly Sometimes______Never

(i.e. at least (i.e. at least (i.e. maybe once a week) once a month) every few MATERIAL months) Whole periodical publications? 6 0 33 138 n = 177 (3%) (19%) (78%) I 1 1 More than 2 articles (not on the same subject) from a periodical publication? 28 36 82 33 n= 179 (16%) (20%) (46%) (18%) 1 1 Contents pages of periodical publications? 65 46 37 33 n = 181 (36%) (25%) (20%) (18%) 1 1 1 More than 10% of a book? 1 2 61 113 n= 177 (

Whole books? 0 0 21 156 n= 177 (12%) (88%) ,, Other? (please specify.) 13 2 9 1 n = 25 (52%) (8%) ^ (36%) (4%

135 Reasons, indicated in the margins of the questionnaire and ranging from the conscientious to the naive, included the following:

On photocopying whole periodical publications:

For making up volumes prior to binding - 3

For making up volumes prior to binding and item out of print - 2

When issue lost - 1

If out of print - 1

"If supplement is one long article"

On photocopying contents pages of periodical publications:

"If requested or for clarification"

"To help in preparation of computer printouts (then destroyed)"

"For a remote user"

"If ILL citation is unsure"

On photocopying more than 10% of a book:

"Rarely" - 2

"If a chapter happens to be more than 10%"

On photocopying whole books:

If out of print - 11

"We only do this after requesting permission from publisher etc"

"Rarely - if out of print or unable to buy in reasonable time of if library copy

lost"

"I have copied one small book in four years"

"Rarely, only under s.51A Copyright Act"

"Only conference proceedings"

Other types of photocopying:

Frequently

"Trade literature all the time (no copyright)"

"Exposure drafts and standards (we hold copyright in them)"

136 "Judgements, legislation, gazette details"

"Law reports, legislation"

"Whole law reports"

"Trade information (supplier publicity)"

"I often photocopy brochures from our technical library to fax to people. I also

photocopy incoming faxes of technical information for our library"

"Newspaper articles"

Regularly

"Pressclips"

"Course notes for students"

"Whole unreported judgements or reported judgements"

Sometimes

"Legislation"

"Occasional newspaper article"

"'Grey' literature produced in-house"

"Sometimes brochures from companies - rarely"

"Unpublished theses"

"Literature search results"

"Perhaps a technical report by our own company employees"

Frequency not specified

"ASIC publications"

137 Qll. How do users use request photocopies? (Please tick all that apply.) Frequently Regularly Sometimes Never (i.e. at least (i.e. at least (i.e. maybe once a week) once a month) every few MEANS months) By telephone 56 42 50 9 n= 157 (36%) (27%) (32%) (6%) I I 1 In person 83 33 40 8 n = 164 (51%) (20%) (24%) (5%)

By memo or letter 40 39 56 16 n= 151 (26%) (26%) (37%) (n%) | I 1 By electronic mail 28 16 25 54 n = 123 (23%) (13%) (20%) (44%) | I 1 By request form 86 16 11 31 n = 144 (60%) (n%) (8%) (22%) I i 1 Other (please specify) 11 6 7 2 n = 26 (42%) (23%) (27%) (8%) I I 1

'Other' means by which users request photocopies include the following: Facsimile transmission (fax) - 13

Flagged items in library bulletin - 1

ILL request forms - 2 Returned copy of contents page - 3 List from library bulletin - 2

From medline searches - 1 Three respondents made a reference under 'other' to Ae usetfdoing their own photocopying.

Comments included the following:

"If person asks for ILL - the form is 'presented' to them. If by e-mail the sender originates a form with title, author, etc. and sends it"

138 '’Phone and letter requests are sent declaration forms to sign and return 1 form for each request"

"Even though people request photocopies, we prefer to lend the items and then leave it up to them to decide whether to copy"

Q12. Are the majority ofphotocopy requests for material that is: (Please circle one.)

Out of print 27 or 15% )

OR ) n = 175

Currently published 152 or 87% )

Four respondents circuled both 'out of print' and 'currently published'.

Comments were:

"Not sure - they are usually non-current journals so is this 'currently published'?"

"Majority are for journal articles. Unless the current issue, assume these to be out of print"

"Currently published but not available in Australia easily"

"Most requests from journals so don't really know. i.e. journals held in other libraries"

"Currently published or not published e g. unreported"

"Currently published - nearly always serials"

Q12. Do you require that local (i.e. not remote) users complete a declaration form for every item photocopied? (Circle one)

Yes 80 or 44% )

) n = 180

No 100 or 56%)

139 Comments were as follows:

"No declaration form requested if user does the copying. Form request if library staff to copy (very rare happening)"

"We don't copy for our users. They do it. I don't want to keep records"

"Yes if we do the copying for them - not if they do it themselves"

"Yes, but not for items copied by themselves"

"Always for ILL"

"Only for ILL requests"

"Yes, if not held in library"

"Yes, if they want me to copy it"

"Not always - if from an accessions list - yes - kept by other hospital. If from Medline - no"

"No, they copy for themselves"

"Not always, items held in our collection are often photocopied by users. (The sign is next to copier stating the regulation)"

"Yes if library staff doing the copying"

"We have a copyright dec. section on our request forms"

"As local users (both staff and public) do their own photocopying, we only have a declaration from for our remote users"

"Local users do own photocopying. We require a declaration form for items not held"

"However, the introduction of an electronic network made everyone (inc. myself) very lazy in this regard"

"Yes, it is illegal otherwise"

"(Photocopied) by them, no, by us, yes"

"Yes for interlibrary loans only"

"We do not require a declaration for every photocopy but there are some which do i) usually not local users who sign declaration, ii) forms are kept for 3 years in chronological order"

140 QJ 3a. Do local users always sign the declaration forms? (Circle one)

Yes 64 or 74% )

) n = 86

No 20 or 23% )

2 respondents (2%) made their own category of'some'.

Comments included:

"Under duress"

"Always for ILL requests"

"Not always"

"They sign only for ILLs"

Q13h. Do you keep the declaration forms? (Circle one)

Yes 85 or 96% )

) n = 89

No 4 or 4% )

Comments included:

Yes, at other hospital"

Yes for ILLs"

141 Q13c. How long do you keep the declaration forms ? (Tick one)

Less than one year 1 or 1% )

One year 3 or 4% )

Two years 10 or 12%)

Three years 13 or 15%) n = 86

Four years 22 or 26%)

More than 4 years 38 or 44%)

Comments included the following:

(Two years) "So far"

"I've been here 3 years and haven't thrown away"

(Four years) "That's how long I have worked at this library"

"I think for five years"

"Haven't been using them long enough to answer this question. Have been in use for 2 years"

"I intend to keep them for seven years - Lib has not been established that long yet"

"7 years"

"I have only worked in library for three years, have kept all declaration forms"

Q13d. In what order do you keep the declaration forms?

Alphabetical 6 or 7% )

Chronological 69 or 80% ) n = 86

Other 11 or 13%)

Other" was defined as:

"By section/laboratory of user"

"Roughly chrono"

"By journal title"

142 "As received and item is despatched"

"Random"

"By request no. (It is very roughly chronological.)"

"Alphabetical within month"

"By order number"

"By title of joumal/by month/ by year"

"I don't know. They are kept at another site"

"Request number order"

Note: The disparity between the numbers of responses for the different components of

Question 13 may be due to the respondents perceiving a difference between the user completing a form and completing an Inter-Library Loan form themselves on behalf of the user. No other explanation, excepting human nature when confronted with a questionnaire, suggests itself.

Q14. Do you make some notification on all photocopies to denote that they were done by the library? (Circle one)

Yes 92 or 50% )

) n = 184

No 92 or 50% )

Comments were as follows:

Yes - "Photocopies made by library staff are notated"

"I was only doing it on I.L.Loans, but I have just obtained approval for a

stamp to be made"

"For ILLs - we do not photocopy for our staff'

"Usually"

"Sometimes I forget"

143 About 1/2 the time"

"For ILLs"

"Varies"

"If done by librarian"

No - "Though it (sic) often obvious as the copy may be accompanied by a

library with compliments slip"

"Requests are only sent to me so they know it is done by the library"

"It's assumed!"

QJ5. Does your library charge for photocopies? (Circle one)

Yes 82 or 44% )

) n = 185

No 103 or 56%)

Clarification was made as follows:

Yes - "For personal use"

"All visitors pay. ... staff pay for private copying"

"Outside use only"

"Rarely"

"Only I.L.L" (7 responses)

"Sometimes"

"No charge to users. Charge for ILLS ACLIS rates. No charge to Gratis

members"

"Sometimes - ILL rates"

"Sometimes"

"If charged to a matter no"

"Not all - we have a free network"

144 Some1

"Not directly - but number of photocopies is reflected in annual charge for library

services"

"If not in free network"

No - "For use with students"

"Except ILL"

"We are a reference library only and only photocopy for staff'

"No to libraries within network"

"No to internal users"

If yes, how much per photocopy?

"7 cents"

"7.5 cents per page"

"10 cents"

"10 cents per sheet - single sided"

"For personal use - 10 cents per page"

"10 cents per page" (12 responses)

"10 cents for students/private"

"Staff not charged. Outside students/public etc. pay 10 cents/copy"

"10 cents per copy to non-staff

"Outside users only are charged 10 cents"

"Yes if for Uni courses or other non-institutional use of if non-staff

copy 10 cents"

"10 cents to users other than staff

"Only users outside the Centre, ie not staff. 10 cents"

"Staff members: No. People outside agency: 10 cents per page"

"Sometimes - depends on if internal or external user 10 cents per

page"

145 "10 cents per page for users who are not... staff or clients"

"Students, non-staff 10 cents per page"

"Not for staff. Students/extemal 10 cents per page"

"10 cents page - for personal copying. $3 per article for phone requests"

"12.5 cents per page"

"20 cents" (8 responses)

"20 cents per page"

"20 cents per page if they do it"

"20 cents per page if user copies themselves"

"20 cents a page"

"20 c per A4 page for outside users only"

"Yes, non-staff 20 cents"

"20 cents only to external users/not for staff members"

"External clients 20 cents per page"

"20 cents per page to members of the public. Free to own staff'

"20 cents for visitors only - no charge for staff'

"To outsiders/strangers only 20 cents per page"

"Local 25 cents / page. Remote $2.50 / article"

"Depends on the user - External users about 30 cents per page or an ALIA voucher"

"40 cents / page"

"Sometimes - 50 cents"

"If done for a chargeable matter - 60 cents"

"60 cents per single sided page"

"$6 for other libraries, 20 cents per page for transient users (outside our organisation.)"

"Not for own staff. External requests - the usual fee"

"Minimal charges for external users $6 per article"

"$6 per article or chapter"

146 "ILL - $6" (5 responses)

"$6" (3 responses)

"To some users - $6"

"$6 $21 fast track"

"Standard ILL charge or 10 cents per page"

"Only if they are non-gratis requests. 1 voucher/article. We do not charge our

staff'

"Standard $6 voucher charge although this is waived for some libraries (members

of informal networks.) No extra charge for fast track"

"$6 for non-gratis libraries"

"$6 - Do not charge many - only other libraries who charge us"

"External users $6"

"$6. $9 for loan"

"$6 + $12 processing"

"ACLIS rates"

"No charge to our own staff. Otherwise, usual ACLIS charges apply"

"Company requests no fee; External requests $9"

"$9 per journal article"

Q16. Do you think that users who do their own photocopying are aware of copyright law ? (Circle one)

Yes 79 or 43% )

) n = 183

No 104 or 57%)

Of the 79 who were counted as selecting 'yes', in fact 14 changed the word 'yes' to

'some'. Comments were as follows:

147 Yes - "In general terms but whether this is retained or respected is doubtful" "Perhaps"

"Some are. Some are not"

"Some are. Some don't bother"

"Some"

"Most of them"

"But perhaps do not fully understand it"

"Some would be, but will choose to ignore as too much bother"

"But many ignore the requirements"

"Some are"

"Some do. Some ignore it to copy what they want"

"Some"

"Not everyone"

"But I think they ignore it"

"I don't know what they know - some may most probably don't"

"Some are, some are not"

"The users who are aware of the copyright law, choose to ignore it"

"A large proportion of our users are I believe aware"

"But not the intricate details"

"Some do"

"Only vaguely"

No - "Most photocopying done in the library is for research purposes, only" "Users of the library do not do their own photocopying"

"Not necessarily"

"Even if aware, would ignore"

"Those who are aware do not care about it"

"Not generally. Some are"

"Even though many of them are lawyers"

"Not always"

"Some have vague idea. Often consult librarian"

148 - I'M Q16a. If yes, how do you think that they became aware of this law?

This awareness often comes from the librarian:

"It is explained to them"

"I always explain copyright requirements to users when I ask them to sign the

declaration"

"Previous librarian and myself'

"Information from librarian"

"I have mentioned it to some (ad hoc.)"

"I told them"

"All the regular departments who use the library have been spoken to by me"

"By telling them"

"Questioning the librarians"

"The library staff inform borrowers of copyright responsibilities. Occasionally

send out blurbs on copyright responsibilities. When a copyright declaration form

is filled out"

"I think their only awareness comes from our signs and teaching, and even then

they don't care much"

"By me making them aware"

"Informed by library. Circulars occasionally remind all employees of

"I've told them"

"I told them"

"Discussions with library staff'

"Constant reminders from library staff'

"If users are obviously breaking rules, library staff suggest that they do it at their

own risk - it's difficult to keep track of this type of thing"

"I talk to all users of the library when they join the company or start using the

library - yes they know!"

150 "We explain it to them, the library brochure explains it, and so does the user manual"

"Verbally"

"I try to make people in the organisation aware of copyright law"

"If I am here I tell them"

"I told them"

"Word of mouth"

"I tell them 10% or one article is acceptable limit. But, cannot 'police' user's use"

"I attended a copyright seminar and sent memos outlining the law to all users"

"We told them"

"I remind staff of the copyright regulations in my monthly current awareness bulletin, and I contact them if they request more than one article from one issue of a journal. I also mention it to new staff when I orient them to the library. I hope they read the copyright warning, and I also asked other sections to put up the copyright warning next to their photocopiers"

"Because we insist on copyright forms for their outside requests"

"Word of mouth"

"Advice from library staff'

"Most users, I inform when I can"

"I tell them"

"Instruction from librarian and from Act housed in the library for reference"

"Word of mouth. Library newsletter"

"Verbal notification"

"From lib. staff'

151 from regular library use:

"Regular library use"

"Many are regular library users who have asked us to copy things for them and

are aware that a copyright dec is required"

"Through the library"

"Notices in libraries"

and sometimes from the host institution:

"Host Ed. Institutions give info to new staff. Teachers talking"

"As part of their training in the company"

Other sources of awareness come from the photocopy area:

"Message on photocopy machine"

"Appropriate notice at photocopiers in office"

"Notices posted above copiers"

"Sign above photocopier"

"Notice next to photocopier"

"Signs on photocopier informing them of copyright laws"

"Notice put up over the copiers"

"Copyright signs"

"Signs"

"Possibly through use of other libraries where c/right signs are displayed"

"Copy of the act displayed above the photocopy machine"

"The sign at the photocopier tells them"

"Sign over copier"

"Sign on photocopier"

"Notice on photocopier"

"The notice is above the photocopier"

"The notice is by the copier"

152 "Signs”

"Notice - perhaps"

"...the notice on the photocopy machine"

"Section 39A sign on photocopiers"

"Sign above photocopier"

"Sign above photocopiers"

"Copyright Act information displayed near photocopier"

"They are usually aware of something called 'copyright'; they may read section

39A at the copiers. Other details are usually somewhat hazy in their mind"

"Copyright Act display"

"Notice Board - Copyright Regulations - "Warning"

"Sign above photocopiers"

"It's on the photocopier"

"Sign"

"Notice on wall"

"Sign near photocopier"

"I have arranged for signs to be placed above all photocopiers in the

organisation"

"Information provided near photocopier"

Some responses show great expectations of the university system:

"Familiar with Uni system"

"Most are highly educated individuals who have seen the signs before"

"They went to university"

"Most from the university libraries on campus where they did their studies"

"Most employees in the complex are educated therefore they would have come

across the law at school and university"

"Through university/public library use"

"Through their tertiary institution or local library"

153 "University libraries as most are students/lecturers"

"Students seem to get told by someone during their course"

"From university or tertiary study ie from university libraries!"

"Most have university degrees and are aware through the studies

"By hearing or reading about it in the media, or at university courses etc"

"Generally known around the University"

"Publicity - awareness from Uni days!"

Some show even greater expectations of certain professions:

"General awareness of legal issues"

"Many of our users are lawyers"

"Users are all lawyers"

"Clients are judges and lawyers"

"They work with the law"

"They're lawyers!"

"They are research scientists and aware of all laws governing their work"

"They are lawyers"

"Users are lawyers"

"Many of our users are lawyers"

and some show a generally rather optimistic view of users on the part of the respondent:

"General knowledge" - 2

"By common knowledge"

"Via general media"

"Depends if they read the Copyright Act"

"Probably own reading"

"Media reports"

"Media"

154 "Through public announcements and the use of public libraries"

"Most are aware that it exists as common knowledge, some ask. Not many know

the details"

"Self knowledge"

"Due to publishing their own papers"

"I don't know"

"General knowledge"

"From general knowledge: press; electronic media, colleagues"

"Not sure"

Sometimes the optimism was justified:

"We fund the Australian Copyright Centre and the Arts Law Centre. We all think

we are not in breach of the Act"

"The company is a legal publisher and all the editorial department are aware of

the need for Copyright Authority before reproduction of any material"

"Through process of working out copying payment to be made to CAL"

"We only photocopy material prepared within our worldwide organisation and

there is not copyright restriction"

155 Q17. Have you ever read either the Copyright Act or the Australian Copyright Council's bulletin "Libraries and Copyright"? (Circle as appropriate.)

Yes 105 or 63%)

) n = 166

No 61 or 37%)

Of those who answered 'yes', 10 qualified this by writing 'part'.

"Libraries and Copyright"?

Yes 105 or 62%)

) n = 170

No 65 or 38%)

Of those who answered 'yes', 2 qualified this by writing 'part'.

Q18. In the past two years, have you attended seminars on copyright, or professional meetings where copyright was discussed? (Circle one)

Yes 75 or 40% )

) n = 186

No 111 or 60%)

156 Q18a. Do you recall who organised the seminars or meetings? (Please list the bodies who organised the seminars or meetings.)

ACCESS (2 responses)

ALIA (6 responses)

ALIA Albury conference (3 responses)

ALIA Health Libraries Section NSW Group (6 responses)

ALIA Special Libraries Section NSW Group (3 responses)

ALLG (Australian Law Librarians' Group) (2 responses)

AMES (Adult Migrant English Service)

The Area Health Service's main library

Australian Copyright Council (15 responses)

CSIRO

IT (Information Technology) Librarians' Group (3 responses)

In-house (2 responses)

Inter-Library Loan section, Fisher Library

Information Online and Ondisc Conference (2 responses)

LIFE (Libraries in Financial Enterprises) (7 responses)

LOSS (Libraries of the Social Sciences) (1 responses)

Law Librarians

Law Society

Library Network Service copyright specialist

NSW AIDS Library Network

State Library (5 responses)

Sterling Committee of Law Firm Libraries (2 responses)

ULIN (Union Library & Information Network)

University of Technology, Kuring-gai campus (2 responses)

157 Other comments included:

"Have attempted to arrange without success - no response from Copyright Council"

"Central policy making organisation keeps network libraries up to date on latest developments through newsletters"

"This library is 1 in a large network of libraries. The training dept, promulgates the information"

"Internal meetings of staff to discuss procedures/administrative steps to be taken in introducing recording of eligible copying for notification to CAL"

The "Copyright Association" was taken to mean the Australian Copyright Council.

Q19. To what extent have you been able to keep up with the literature that deals with copyright? (Tick one.)

Never have time 36 or 20% )

Read some articles 130 or 72%) n = 181

Try to keep up with everything 15 or 8% )

Comments with "Read some articles" included:

"Talk to other librarians"

"And discuss it with other librarians"

"The library is known as a source of expertise on copyright law, so we try to keep up"

Comments with "Try to keep up with everything" included:

"But only just commenced in the position of librarian 5 months ago"

"Everything = impossibility"

158 Other comments were:

’'Never see any articles"

"On occasions copyright is discussed in in-house bulletins"

"Have never read any"

"Don't bother"

Yes 107 or 70%)

) n = 154

No 42 or 26% )

5 or 4% made their own category of'Don't know' or 'Unsure'.

There was no particular concentration in any one subject category of library of respondents who thought that copyright laws were unreasonable. The majority (10) of libraries who said that copyright laws were not reasonable were related to the sciences, followed by law (8), mangement (7), medicine (6), engineering (6) and the social sciences (5).

Could you elaborate?

105 respondents made further comment. These comments have been sorted into the categories of comments related to problems with policing or powerlessness, amount of paperwork, inadequacy of the law to keep up with technology, problems with not being able to photocopy contents pages, conflict with publishers' profit motive, the need to

159 protect authors' rights, the need for further education, and 'other'. 'Other' included

misconceptions about the law and comments not relevant for the purposes of this

analysis. Some comments fit into more than one category.

Comments from those who answered 'yes' were as follows:

Problems with policing/powerlessness

"It is extremely difficult to make sure people comply"

"The great trouble with enforcing regulation of copyright is the lack of concern

expressed by our management who control decision making in this regard"

"I believe in the principle of intellectual property and the right to benefit from

work/product. However, very difficult to police. I haven't had time to reason out

alternatives"

"Authors should have some recompense. However, I don't believe the law is either

enforced or enforceable"

"As our photocopier is on a different level, it is harder to regulate photocopying,

particularly with students"

"With reservations. I feel that it is difficult to enforce and people will breach the law if

they find it restrictive for their purposes. I feel that few restrictions on copying should

be made, but adequate royalties should be paid to original authors, and sources should

be duly acknowledged"

"It is difficult to police as the technology far outstrips the capacity to control the use.

However people who have original thought or create an original work should be

160 compensated. The reproduction of material for a very small company by

photoreproduction does not allow the originator of the work to be able to sell his/her

work and therefore earn their true worth”

"I believe it is reasonable to ensure that copyright is protected. In reality it is

impossible. Photocopiers are readily available and most people do not care if they

infringe copyright. In this library I can only ask people to be mindful of copyright I

cannot force anyone not to photocopy”

"But extremely hard to administer, especially in rushed part time service"

"The allowable copying restrictions seem reasonable to me. It concerns me that some

staff members don't really take it seriously, but I have been very serious about it. I think

some can't grasp that intellectual property is still property and deserves recognition"

"Reasonable from author's viewpoint but a nightmare to monitor/police. Suspect that people just will not bother to fill out forms for copying that should be declared as they will count on 'getting away with it' as the bulk of copying done by this office is under

s43 and does not need to be recorded or declared"

"Without those regulations it would be not justifiable on the authors part where she/he spends time and effort in producing documents. On the other hand it would (sic) extremely difficult in policing a law such as copyright by chasing after people breaching such an act. Is it worthwhile?"

"But - very difficult & complex to comply with. I am aware I am breaking the law but don't have time to study & implement exact procedures"

161 "But - From the view of the small special library that serves a restricted in-house clientele (99% of the time), and the low volume of p/copying, copyright does tend to be ignored"

Amount of paperwork

"Copyright - especially the declaration form for every article - is an issue I feel quite strongly about"

"In general, however they lead to a lot of paperwork and some parts are ridiculous eg. recently read that to produce a bulletin with contents pages in it, permission should be sought from publishers - ridiculous!"

"I believe that we have a moral obligation to compensate authors for their work.

However, publishers who get copyright royalty payments are in a sense double dipping.

I don't think that the schemes for reimbursement are particularly workable (ie s. 183 declarations to CAL) & are very prone to abuse due to their inconvenience"

"There to protect intellectual capital. Special libraries do not have the time or resources for record keeping or monitoring"

"I follow the spirit, if not the letter of the law. The requirement for a declaration form is onerous and not feasible with the way the company works"

162 "I wholeheartedly support the idea of protecting intellectual property, however wish it

didn't require so much paperwork"

Inadequacy of the law to keep up with technology

No comments in this category

Problems with not being able to photocopy contents pages

"In general, however they lead to a lot of paperwork and some parts are ridiculous eg.

recently read that to produce a bulletin with contents pages in it, permission should be

sought from publishers - ridiculous!"

"Knowledge is sketchy as (sic) present. As I understand laws seem reasonable except

the use of journal contents pages in office distribution"

("Qualified" yes) "I abide by the rule that contents pages are a compilation, but find it

hard to grasp. In some cases, it would be good to be able to circulate contents pages. I

don't foresee writing to publishers for permission - perhaps librarians as a group could

ask publishers to put a note on a contents page to say if it may be copied. I think some

do this already. I think it's a rip-off that some libraries are charging $60 a year for a

contents page service. Why do parliament libraries or parliamentarians have special

privileges?"

Conflict with Publishers' Profit Motive

"I believe that we have a moral obligation to compensate authors for their work.

However, publishers who get copyright royalty payments are in a sense double dipping.

163 I don't think that the schemes for reimbursement are particularly workable (ie s. 183 declarations to CAL) & are very prone to abuse due to their inconvenience"

Need to protect authors'/publishers' copyright

"Copyright laws are designed to protect publishers and authors. People who breach copyright laws are exploiting publishers and authors. People deserve to be paid fair compensation and many publishers/authors are not getting their due reward"

"Authors responsible for the creative content of a work need to be protected"

"As a publisher we are aware of the problems that can be created by the abuse of copyright. The cost of time and input in publishing requires that the ownership must be maintained for the protection of local publishers"

"It is important that authors be properly compensated for their efforts, and copyright laws help in this regard in forgone economic loss of potential sales. Administration of requirements in the library environment no longer a problem, only a minor irritation to some people. Helps to maintain statistics of photocopying requests"

"It is reasonable for an author to assume that his effort in writing a publication should be rewarded, particularly if he is an authority on a subject"

"It is essential to provide some legal cover for work completed by author, publisher, distributor"

"There has to be laws to protect individual's property, creativity and or hard work and the right to payment as reward - however there needs to be some flexibility in a library's right to copy material that has been paid for"

164 "I think it's fair that a whole item or large amount of work cannot be copied, because the author and publisher is losing money. If someone wants a whole piece of work or a large portion of it, they should go out and purchase it!"

"The originator should be protected"

"Authors have to be protected and be paid for. I actively discourage photocopying of whole journals & books"

"Deter people from trying to benefit materially from other people's work"

"Protects from abuse that causes a loss of revenue to writers. Helps to distribute the costs of journal subscriptions. Also makes users think about what they are requesting/copying"

"Obviously individuals need to protect their private research however I feel newspaper articles should be able to be freely copied"

"The writer of a work is entitled to gain royalties for his/her work. I think that it is good that copying of certain amounts can be done for research purposes, as this is important for our library" (Medical)

Needfor further education

"Knowledge is sketchy as (sic) present. As I understand laws seem reasonable except the use of journal contents pages in office distribution"

165 "Obviously individuals need to protect their private research however I feel newspaper articles should be able to be freely copied"

Other

"Although sometimes there might be a user requiring two articles from one periodical"

"Yes - 10% seems fair except where a book or report is o.u.p. &/or unable to be borrowed"

"In some cases (Advances (?) in series) when books/journals are inseparable a special category of copyright law may be needed to address the need of copying more than 2 items form any book, especially if it is a 'symposium' dealing with a particular relevant topic"

"They are reasonable for the purpose of research"

"Aspects which are not viable on the whole laws reasonable. Copyright payment for newspaper articles that resulted in NJP Jeffress sending original clippings from newspapers rather than photocopies meant we discontinued our subscription to the service"

"It is reasonable as long as it is not too rigorously enforced and account taken of extenuating circumstances"

"Overall yes, but problems for research purposes: The most up to date information required and as soon as possible: Thus cannot wait for a judgement to be reported in a law report series (takes weeks, months). Copying of articles: circulation of whole

166 journal too slow and gets lost. Many people need access to the information and

quickly. Many smaller libraries have budget constraints that don't allow them to

maintain subscriptions to various journals, interstate and overseas legislation and law

report series etc. Thus rely on being able to copy from another library. Copying allows

people to get access to information on what is the current law - it is not a breach of

could be seen as breach of fair use doctrine. Summary: Up to date information

required. Circulation too slow - sometimes material lost. Copying allows everyone who

needs it in the organisation to get the information quickly within reasonable time of it

being published"

"I think they are reasonable - if I were an author I would expect that they be enforced.

However, in this electronic age I don't think they are practical"

"Law allows adequate copying if we keep the law in mind I don't see any problem"

"I think that fair trading should be the paramount criteria - it is open to abuse invariably

by those who can afford not to abuse it"

"Yes reasonable (as far as I am aware and concerning libraries.)"

"As I do not have to photocopy articles etc I don't have to worry about copyright"

"In regards video cassettes I find it unfair that institutions are unable to make back-up

copies for their own protection, esp of very expensive tapes. Computer software is

allowed a back-up why not videos?"

167 "This library exists for the benefit of a small minority of the community ... seeking

information on specific ... material... so copyright rarely concerns it" (Information

identifying library omitted)

"As a journal library, we have few problems with copyright. Our policies and

procedures have been written in line with copyright law, and our patrons do not expect

services from us which would contravene the law. Without copyright we could offer

more services, but it would also increase our workload"

(Yes) "As far as they affect us. Most copying one off from trade journals etc. Records

that have to be kept provide statistics for service"

Comments from those who answered 'no' were as follows:

Problems with policing/powerlessness

"It is not realistic to comply with the law. In spite of concerns I have expressed to my

superiors on several occasions about our persistent breaches of the law, their attitude is

that "everyone does it and it's not enforced anyway" I don't have much choice!"

"It is extremely difficult in a special library to refuse photocopying by users, as they

consider (and I agree) that it is necessary for their research to have their own copies of

material. Because of financial restrictions most libraries only have single copies of

publications, so copies are essential"

"Payment of royalties to CAL - how will it be policed? Sometimes too black and white

- there is always a grey area"

168 "I think it is fair that authors achieve a monetary reward, but I don't think the

Copyright law helps, necessarily, in this regard. Authors who are not members of CAL etc don't seem to gain anything. It all increases administrative costs and policing it is impossible. Also, overseas authors don't seem to be included. Government bodies, in particular, who do not operate for profit & continually have staff cuts & budgetary cuts, are placed in a difficult position. I think the whole thing is a bureaucratic nightmare"

"1. Impossible to police when users do their own photocopying. 2. Far too complex to implement"

"Form-filling required of librarians takes too much time in a one-person library when the pace gets hectic it is tempting to avoid filling and filing forms. Because I share a photocopier with other departments and the machine is outside the library in another room I can't police infringements even though I've posted a notice. The notice sometimes disappears. Staff (i.e. library users) do not generally take copyright seriously"

"We couldn't function if laws were enforced"

"I think that they are probably ignored by most organisations where copies are made purely for internal use"

"Restriction on no. of articles or percentage of book to be copied does not stop copying at later dates. Declaration forms are a waste of paper & storage space - no check is ever made on these. Up to the individual user borrowing a book from library as top whether they abide by laws"

169 "They are not clear for companies - they are clearer for educational institutions"

"Too many restrictions especially when only used within the organisation. Problems with press cuttings - who owns the copyright - the author of the article or the newspaper they work for? Costly to administer the law"

"The paperwork involved in maintaining Copyright is horrendous. No-one seems to take it (copyright) seriously (ie. users, agencies, etc.)"

"It's a bit like tape recording of C D 's etc. it's supposed to be illegal, but everyone does it. Institutions do take steps to regulate and cover themselves but individuals, hardly ever. However, how to overcome this, I'm not sure"

Amount of paperwork

"Signing declaration forms is a hindrance in providing quick information so I don't use them. It is a bureaucratic procedure that I can't justify to my readers. Often I receive a request for information that involves an online search, deciding which articles to obtain, copying them or obtaining an ILL: all without reference to my reader. I think a blanket dec. from covering a subject/time period would be better"

"Declaration forms for libraries - we do not have time to worry about these & it is not enforced so why bother"

"No in part - Far to (sic.) labour intensive for librarians. Wastage of paper/time. Too many people are confused - they think if they photocopy a journal article copyright responsibility rests with the librarian or organisation"

170 "Form-filling required of librarians takes too much time in a one-person library when the pace gets hectic it is tempting to avoid filling and filing forms. Because I share a photocopier with other departments and the machine is outside the library in another room I can't police infringements even though I've posted a notice. The notice sometimes disappears. Staff (i.e. library users) do not generally take copyright seriously"

"The paperwork involved in maintaining Copyright is horrendous. No-one seems to take it (copyright) seriously (ie. users, agencies, etc.)"

"Copyright laws are reasonable for the authors. I can understand them wanting protection. They are not reasonable for libraries, particularly small 1 person p.t. libraries. I do not have the time to ensure that everyone fills out the forms; complete the filing. Nor do I have sufficient space to keep them. If we have to pay royalties, as we may in the future, it will be very difficult. I will not have time to do the work required -1 seriously consider working elsewhere, possibly not library work at all"

"As a library administrator, I do not have the time to ensure that all the necessary forms are completed. I know that there is a time period over which ILL forms must be kept but don't have the room"

Inadequacy of the law to keep up with technology

"An outdated piece of legislation that has not been adequately enforceable since the introduction of the photocopier and with the increased use of electronic print media.

"Have not addressed the real issues of copyright & libraries. Law appears to be vague

& has not caught up with modem technology & the implication of information on

171 disks, etc. Administration of copyright procedures is time consuming & as it is not monitored, in special libraries particularly, it is not usually an issue special librarians think about"

"Clarification is needed in relation to changing technology, ie fax copying, CD-Rom, database searching, etc"

"Don't cater for modem technology (databases, fax, etc.). Need to provide a practical approach"

Problems with not being able to photocopy contents pages

"Content lists of journal should not be copyrighted"

"Too restrictive. Esp. where contents pages are concerned. Unrealistic. No ability to enforce it. No requirements for declarations to be acknowledged tracing them back would be a nightmare: ie file by author; title; user; date etc etc"

"I think libraries should be able to legally copy contents lists of journals"

"They don't seem to take into account the practicalities of running a library service - maybe the administrators of the law haven't troubled to find out - but there are areas where keeping copyright laws is very inconvenient and yet doesn't seem to benefit the copyright owners e.g. cannot keep copies of articles in a W (vertical file) for users to consult or even the first page of the article - are we expected to buy 2 copies of everything and have one exclusively for clipping? -1 have been told that even copying contents pages and sending copies via fax is against copyright law (the latter because a second copy is made in the faxing process) - this seems ridiculous - CAL isn't the answer to copyright problems for people who want to make occasional copies - there

172 needs to be a way people can very simply register and pay royalties where copies are not 'fair dealing' under s.40. I believe it should be the copyright owner's responsibility to register within a body that administers these royalties, as it is often virtually impossible to find a copyright owner to get reproduction permission. It seems to me that the unrealistic nature of copyright restrictions placed on libraries encourages a negative and non-compliant attitude to copyright law, and that the problems could be fixed fairly simply and without harming copyright owners"

Conflict with Publishers' Profit Motive

"Given that it is the publisher of most scientific journals who owns copyright I think there is absolutely no justification for payment of royalties. Contributors to scientific journals are offered no remuneration at all, and publishers charge outrageously high subscription rates"

"Medical authors are delighted for their material to be photocopied & widely distributed. They are not comparable with poets, novelists etc. who wish to earn money from their writing. Medical authors look for advancement of knowledge, patient care improvement prestige etc. Copyright ties our hands with regard to dissemination of information to busy people. It's a constant concern with journal clients (?) who are doing their best to "keep up" with current publications. We sympathise with publishers but don't believe they gain any more subscriptions by pursuing copyright action"

(No) "Because in a subject area such as ours I believe that authors are more interested in dissemination of knowledge and in status than in profit so they are probably quite happy to see their works copied. They have always been very forthcoming with reprints

- gratis. The publishers of course are interested in profit but I think that this area is so specialised that libraries probably help to keep their journals available and in circulation as most professionals I know only keep the core journals and the odd specialised

173 journal. I do believe in the spirit of the law however - it is just that is (sic) a difficult and costly law to enforce and is unnecessarily punitive at times"

"Newspaper clips. We might have to pay CAL - journos union and proprietors, 1 cent for each portion of the page copied. I don't mind paying once but twice is a bit of a bungle"

"Often people want working copies of a document - (not for study but for their jobs) - this need only temporary but not taken into account"

"They are not a reasonable compromise and do not allow for interests of other than copyright holders. I believe C. Council tries to catch people over technicalities. We who pay LIBRARY rates for journals expect something for our large costs.

Fortunately, most publishers are reasonable. We actually try to comply with the spirit of copyright act. We don't do multiple copies"

Need to protect authors'/publishers' copyright

No comments in this category.

Needfor further education

"There should be a clearer distinction between copyright requirements for libraries and educational institutions. Allowances for obtaining material for urgent patient care should be explored"

174 Other

"The section which indicates that if a microfiche copy is taken then the original must be destroyed is a bit pointless"

"I have to photocopy a lot of material because it is often out of print so architects still need other info. Also, I have a lot of info & it is easier to fax a photocopy"

"As most people ignore the copyright law it seems to me there must be something wrong with the act. I also think to an extent copyright laws are used to restrict the free flow of information, and are often used by large organisations and government departments as a means of censorship"

"As to journal articles, it seems ridiculous that if 2 articles are wanted (from same journal issue) but they are on different subjects, they can't be copied"

"I believe copyright with regard to journals etc is OK but newspaper articles are awkward"

"No library can afford to buy the multiple copies of books/serials necessary to satisfy demand. Photocopying is the only practical way to distribute information"

Other comments related to no response were:

Problems with policing/powerlessness

"I support the principle but find the carrying out of all aspects of the law virtually impossible. In the case of newspaper articles and the different laws which apply to the copying of these articles I think the law is untenable"

175 "In fairness to authors, there should be some control but who will control it and how?

Students need the material but can seldom afford to pay for it"

"The law protecting authors/publishers/owners of copyright are fair. The onus on

people such as librarians to keep track of the records etc. is not"

"Sometimes it is necessary to copy a whole journal issue - it is just a waste of time for

the requester to use different libraries just to get all the articles & stay within the

"Since I am unsure of the current legislation I am, unfortunately, unable to comment.

However I think copyright law must take into account government publications such as

commissions and inquiries that are in demand and out of print and unavailable via ILL.

The user sometimes has no option but to photocopy chapters!"

"If the law is enforceable in a viable sense, it is probably useful, if it isn't, well what is

it's point?"

"It is difficult to comment on this. I would think that the copyright law gets 'tested'

constantly in a special library. The current awareness service that most libraries offer

probably stretches this law to the limit. Library subscription rates are sometimes higher

than personal subscription rates, because of their wider circulation. It is natural to

assume that library users will copy items from these journals, often to excess"

Amount of paperwork

"Recent ruling by Aust Copyright Council is a real worry as we circulate contents as a

major service especially as we have many remote users. Have at present suspended this

176 service while we examine the legal implications & possible solutions. It's a pain keeping the paperwork. Users get frustrated having to fill in so many forms, and so do we!

Also, not happy about contents ruling - see previous question - does not seem like a reasonable interpretation. Will seriously disadvantage at least 1/2 of our users, and cause us much work if we have to request permission from each publisher. However, there obviously needs to be protection for authors -1 feel it isn't very reasonable at present"

"Yes: in the amounts permitted. No: in the amount of documentation required. Overall

(on the philosophical level) I feel that the law is failing dismally to cope with the realities of modern technology. We should be looking at other methods of recompensing the owners of intellectual property"

Inadequacy of the law to keep up with technology

"Yes: in the amounts permitted. No: in the amount of documentation required. Overall

Problems with not being able to photocopy contents pages

"Recent ruling by Aust Copyright Council is a real worry as we circulate contents as a major service especially as we have many remote users. Have at present suspended this service while we examine the legal implications & possible solutions. It's a pain keeping the paperwork. Users get frustrated having to fill in so many forms, and so do we!

177 there obviously needs to be protection for authors -1 feel it isn't very reasonable at present"

Conflict with publishers' profit motive

No comments in this category

Need to protect author s'/publishers' copyright

No comments in this category

Needfor further education

"Don't know enough to comment"

"As I have not read the Act I am unable to answer this. I am not a qualified librarian, just a clerk managing the library system part time"

"Don't have an informed opinion really"

"They seem reasonable to me in most cases, though I must admit I do not have indepth knowledge on all aspects of copyright law. I have found it difficult sometimes to provide customers with information because of copyright restrictions. Belonging to the

Federal government makes it difficult to be able to buy publications that are available commercially as we do not have access to funds locally & items can take a long time to be purchased through the 'system'"

178 Other

"I have no strong views at present, one way or the other”

"Yes for fiction, poetry, etc. I think for medical articles people are not publishing for profit & its important for info, to be available. It's not always easy to determine whether articles are 'on the same topic' - they may be in a generalised way -1 err on the side of the user”

"Undecided"

"I haven't given it much thought, and have adopted the attitude that if the users wish to photocopy, I don't wish to know about it. Most of the photocopies are the result of

ILL requests. Any photocopying form borrowed material is done outside of the library.

The only copying the library does is for staff located away from (named site)"

"Should be reviewed regularly with input from all interested parties"

Q21. Please discuss any problems or issues that arise with copyright that have not been covered by this questionnaire.

54 respondents commented as follows:

Problems With Policing/Powerlessness

"It is difficult to get users in the library to observe copyright. I know in many cases more than is legal is being copied but this cannot be controlled unless the librarian physically stands over them"

179 "Difficult to persuade some users of the importance of abiding by copyright laws"

"Monitoring the users is impossible, we cannot check what they do"

"Most people are aware of it, but if it suits them, will ignore copyright if they can get away with it. In practice, for personal use, unlawful copying is unstoppable. For company use or public documents - it is strictly observed"

"It is unfair to place librarians in a 'policing' role such as forcing people to fill in forms against their will, when it seems unlikely that all the authors will get appropriate recompense. Lots of the money collected by CAL must go to administrative & office costs, etc"

"Occasionally users ask for large quantities of copying from single issues or monographs. I usually lend them the original instead - presumably they make their own copies. This doesn't solve the problem, just shifts the responsibility"

"It is extremely difficult sometimes to track down the copyright holder (be it author, publisher or whatever) of a book many years old. Yet our requests are all required to be met urgently - in many cases, if the copy cannot be made quickly, there is no point in obtaining it. In situations such as the above, librarians are under considerable pressure to 'cooperate'. Often, the firm's official policy and the actions of employees and principals are at variance"

"It is difficult to get clients to comply. When I started here two yrs ago it took me a long time to enforce. I phoned the Copyright Council for advice. Also many of my clients travel a lot, which means they leave the requests eg highlighted ftnotes or bibliog. so I can get it while they are away. I therefore have paperwork hanging around waiting to be filed"

180 'There is no positive incentive to comply with the law. There is no easy, direct way to recompense the holder of the copyright, so many people feel it is all to difficult to worry about. Users are generally surprised when you refuse to copy because of the law

- they know it exists but don't expect anyone to comply with it (like the speed limit).

Getting timely information to remote users can be difficult within the law"

Amount Of Paperwork

"Record keeping too time consuming"

"Mainly a practical consideration. As a sole library manager I am aware that time consuming tasks, such as completing the declaration forms, take up time which could be better spent. I don't know of any moves to change the system but I would be relieved if another, less time consuming method were developed"

"The cost to the organisation of meeting the requirements of the Act - storage of records for example. Users do not like filling out forms. Authors need protection but law goes too far at times. A complex issue"

"Generally speaking, users of this library are not interested in the legalities or philosophical aspects of the copyright act, all they are interested in is obtaining the information requested with a minimum (preferably none at all) of bureaucracy (i.e., copyright declaration forms)"

Inadequacy Of The Law To Keep Up With Technology

"Our main difficulty is that copyright has not kept up with electronic technology. This issue needs to be sensibly and urgently addressed; eg. electronic transmission of information"

181 "Like with many issues related to technology, the development and power of technology outstrips our capacity to deal with the social, legal, etc. ramifications"

"Storage of material in electronic format"

"Newer technologies, databases, imaging, fax machines"

"Copyright and faxes - what to do with original once sent by machine? We offered them to anyone who might like them for personal use only"

"A/V, computer software, copyright 'rights' of employees/contractors"

"Education to the public at large is very difficult as wherever there is a technology that will enable people to reproduce something they will demand the right to use it. Where study materials are very costly, students will continue to copy large slabs of text books.

CAL is working toward trying to shore up the gaps in this, but I think there will always be problems"

"What about full-text documents etc obtained through online searches?"

"Copying of articles from newspapers from (say) Ausinet - if I copy off an article from the SMH am I infringing copyright by so doing, or am I really only allowed to look at it on the PC screen? What about articles in publications in "the public domain" in general?

What rights does the public have to copy articles from newspapers?"

Problems With Not Being Able To Photocopy Contents Pages

"Issue of photocopying 'tables of contents' for regular distribution to users"

182 Current awareness requires contents list - impractical to rewrite - copying best way1

"Lack of awareness of some librarians that they are infringing copyright when the (sic)

reproduce the title page for circulation to reduce purchase of multiple copies of journals impacts on the continuation of a viable publishing industry"

Conflict With Publishers Profit Motive

"Many journals allow copying more liberally than the Act and Regulations. Our

PRIMARY aim is to diffuse knowledge, immediately. Some publishers primary aim is

to make a profit. These two at times are incompatible"

"Information needs of users in the research environment"

"We keep information files on various topics which frequently crop up. While users

appreciate this, they do not appreciate the fact that they can't copy from a copy! This

seems ridiculous when it's for study purposes"

"There are problems with microfiche publications as the person may require eg.

Australian Standard that may only have a few pages and they find it difficult to

understand why it cannot be copied"

"I have a problem with Standards Australia - we pay membership for a large staff or

architects. Sometimes we need multiple copies - we get no reduced rate therefore our people photocopy rather than buy the 2nd etc copy of Standards. (An individual member pays far less.) Should be a copyright system like networking software"

Need to protect authors’/publishers' copyright

No comments in this category

183 Needfor further education

"I think that issues of copyright should be discussed more widely in the community.

Very few people have awareness of copyright issues, and if they do know about them they are often thought to be difficult or onerous to comply with. I think that the ACC could do more community education on this issue"

"Copyright of videos is confusing. Many people assume they can make backup copies

(which I think they should be able to.)"

"I do understand the views of authors, publishers etc regarding copying of their work, but it is a really complicated issue and I would really like to have more clarification of the pros & cons"

"Problem: awareness among users of need to adhere to copyright law. Libraries - have to follow up changes in law, & are not automatically notified of changes"

"All other media - videos, software, etc. Should there be separate laws for each? C.

Laws seem to have been in a state of flux. Many people waiting for a definitive answer"

"The Copyright Act is difficult to interpret/apply in relation to unpublished materials i.e. manuscripts"

"Australian Copyright Council always very helpful when I've asked their advice. I would like more guidance on obtaining journal articles to put in a vertical file. Should the librarian complete a copyright declaration form? Is it OK to photocopy vertical file items, if it's one article for a user's personal use?"

184 "My ignorance is showing, but what is CAL? - OK I found it. I telephoned Copyright

Council re contents pages copying 18 months ago & no advice was received re

Copyright Agency Limited. I was told I should write to each publisher of each journal title to obtain copyright clearance: 300! & going up. I know BLLD has copyright clearance"

"The use of examples to illustrate what is or isn't permitted is helpful"

"The law is too difficult to interpret for custodians and users. Should be made simple,

'black & white' - regardless of whether it is reasonable or fair"

Other

"Philosophy of copyright - is it fair. Size of the Australian market. Easy convenience of photocopiers makes it too easy to breach. Do we want to be test cases when some lawyers openly admit to breaking the law"

"Urgent requests for material required concurrently to attend to particular matter. At end of matter extra copies (if un-notated) destroyed still 'against' copyright"

"The possession of information is power in many organisations. To change the attitude to photocopying requires a change of culture and attitude by the company and its personnel. It is a very long term project"

"While it would seem that this library flouts copyright, being a law court library allows exemption for material used in Court. The only material held is for court use"

"This department is about to introduce recording of si 83 copying as required by AG's

Dept following the agreement between CAL & the Attorney-General. We are awaiting

185 final negotiation by AG's before establishing exact procedures to be implemented. Aim to standardise our approach & record keeping across offices in all states"

"Our library use is for technical purposes and information about a product copying is for assembly of selection facts for a particular work"

"The company I work for is an architectural company. We have a lot of companies catalogues and brochures dealing with building products. Our library is only used by the staff, not outsiders"

"Some of our authors are overseas, all of our users are schools and students - who can't pay very much"

"Technical papers within the company and its parent company are confidential & we are made aware of this when joining the company. I attach a page reminding users of this when accessioning such material. These reports are not lent outside of the company"

"I think you should also have asked what the material is to be used for. If you are involved in litigation some provisions of the copyright act do not apply. See ss. 43(1) of Copyright Act 1968 and paragraph 4.12.75 in Lahore Copyright"

"I believe that NSW legislation, if unavailable from the appropriate source eg bookshop, cannot be copied due to copyright law. If this is true then all government shops should keep ample supplies of legislation"

186 Comments not related directly to questions included the following:

"This library is a very small 'in-house' facility with myself employed as a secretary, looking after the library. I have no librarian qualifications - only those obtained through using libraries as a borrower. Good luck with your thesis"

"Good luck with your thesis!"

"Bravo for choosing this topic -1 think it is a bugbear for many of us and lets hope it results in some sanity from the copyright council!"

"Good luck with your thesis - hope my brief and hurried (never enough time) answers are of some assistance"

"I would appreciate a copy when you have completed your study!"

"Good luck!"

"It is not possible to give an unequivocal answer to some of these questions"

"Thank you for a clear, reasonably constructed q'aire with objective answers possible"

"Hope you get a good response. Good luck with your thesis"

"Ours is a small library, no librarian and is not open to the public, only for internal use.

I am the caretaker of the library"

"This questionnaire is too long. I almost did not complete it"

187 "I would be most interested in knowing the results of your survey - will it be published in Special Library's journal? Good luck with your thesis"

"Congratulations on your comprehensive questionnaire"

188