sure that I am not the only person who wishes to be 25 years younger, but
as I am writing this column I have a specific reason for this longing.
In 1979, after I finished my studies in political science and graduated
from law school, I started to work on a doctoral dissertation about the
legal protection of software. I was the associate director of an educational
computer center in my native Hungary, and I also did some systems program
development projects. I spent 6 months that year in the U.S. on a scholarship,
discussing with some of the best legal scholars the then just-ratified
modifications of the U.S. copyright law to extend protection to computer
many reasons, I found the copyright protection weak and the patent protection
inappropriate for the legal protection of software, and I made a detailed
proposal for a specific (in legal terminology: sui generis, or "on its
own right") protection. My book was published on the subject and the Library
of Congress acquisitioned it, but that's the end of the story—my proposal
not implemented by the legislators.
was quite an asset—especially at that time—to be familiar with both fields,
and I was at a crossroad where I could choose between a career as an intellectual
property lawyer or as an educator and practitioner in computer and information
science. I chose the latter, so the following is not a legal opinion but
merely an editorial from someone who is a) not ignorant about the legal
and the computer sides of the issues; b) an author of 300-plus articles,
conference papers, columns, and reviews; c) familiar with the plight of
the librarians and the consumers; and d) opinionated about digital copyright
opinion in some matters is certainly flavored by the fact that Information
Today, Inc. (ITI) has paid me very decently for my articles for over 10
years under a simple gentlemen's agreement—without requiring the transfer
of my copyright. There have been other perks, such as free admission to
any conference organized by ITI. Although there is still much buzz since
the Supreme Court's decision that freelancers own copyrights for digital
reproductions of their works if they did not specifically sign them away
in writing, I am not discussing that issue here. Above legal considerations
are the moral ones, such as loyalty in this case. That's why I don't dispute
publisher's right to license my copyrighted works to online information
services, which in turn create powerfully searchable full-text and/or page
image databases and set reasonable prices of $2 to $4 for printing my full-text
articles. I tackle that aspect with regard to a former British publisher
of another column of mine in an upcoming Savvy Searching column in a 2002
issue of Online Information Review, 26(4).
column is not the appropriate place for a legal treatise, so I will instead
focus on the everyday anomalies in copyright matters that concern librarians
and other information professionals who provide fee-based services to patrons
and clients using document delivery services. I also cover some of the
current copyright infringement cases in my annotated storybook of screenshots
Wide Spectrum of Copyright Infringements
is an array of possible copyright infringements, ranging from the blatant
information highway robbery of snatching an entire Web site (the Academic
Info v. Blacknet case) to selling derivative works (the ISI v. Prestige
Factor case) to—hopefully and presumably—non-willful copyright infringements
authors are the "little people" in Leona Helmsley's parlance, the bigwigs
have their own fights among themselves.
infringement disputes often erupt between well-established information
companies. Large publishing houses have nothing to worry about, as they
have armies of lawyers and can sue the life out of the infringing parties.
Last December, FDC Reports, Inc. settled a lawsuit against NewsEdge Corp.
and IMS Health, Inc. for unauthorized delivery of copyrighted materials
owned by FDC, Inc., a Reed Elsevier company.
November, Elsevier and John Wiley filed a lawsuit against Kessler-Hancock
Information Services, Inc., a traditional document delivery company, for
"unauthorized photocopying from the publishers' journals for resale to
the service's customers." The complaint alleges that "Kessler-Hancock solicits
and fills orders for copies of copyrighted materials distributed by the
publishers without the publishers' authorizations, and even collects purported
copyright fees in connection with the copies without returning them to
the copyright holders" (http://www.sspnet.org/public/news/details.cfm?id=83).
The jury is still out, but librarians have known for quite a long time
that the copyright fees that they pay may not always get to the legitimate
leads me to the anomalies that I keep discovering when I'm doing research
about document delivery companies and their primary sources. Although my
research features a number of such entities and databases, including The
British Library (a favorite supplier for many document delivery companies),
TheScientificWorld, UnCover Plus, and Infotrieve, I will use only the latter
to illustrate my points because of space limitations. You can find examples
of the confusing handling of copyright fees in the sciBASE database of
TheScientificWorld service in the September
2001 issue of ONLINE, and in a follow-up ("Who's Inaccurate?")
have been struggling with copyright problems, including copyright fees.
Stephanie C. Ardito and Paula Eiblum provided excellent, albeit troubling,
insights about some of the copyright oddities in the document delivery
world in their excellent series in the 1998 issues of ONLINE. My
current survey just reconfirmed that their past experiences apply today
in an even broader spectrum, triggered by the omnipresent and very convenient
digital delivery of documents on the Web. CIL had a useful feature
article about copyright issues for librarians, and an informative interview
with Dave Davis, a project manager at the Copyright Clearance Center (and
a library student then), in its June 1998 issue.
there is much confusion, fear, uncertainty, and doubt about copyright fees,
which are of deep concern for librarians and other information specialists.
These people are the mediators and the interface between the customers
and the document delivery services, and they have to answer questions and
explain procedures and prices (which they themselves may not understand),
and all the while they are trying to get the best price for their customers
and to comply with copyright rules.
Flat Copyright Fee?
first glance you may let out a sigh of relief when you realize that Infotrieve
has a laudable copyright policy (http://www4.infotrieve.com/docdelivery.asp),
and that it uses a flat copyright fee for articles within the same journal.
This implies that once you know the copyright fee, it will be the same
for every article from the same journal (and often from all or most of
the journals of the same publisher, as is the case with ITI) without respect
to the length of the document (which can be a nightmare to determine, as
we shall see later).
that you are searching for a CIL document, "Know When to Hold 'em,
Know When to Fold 'em," by Péter Jacsó. It may comfort you
to see the same $15 copyright fee in the result of a search showing two
versions of a bibliographic record for the same document from CIL—courtesy
of The British Library, which provides many of the bibliographic citations
for the Infotrieve database.
relief will be cut short, however, because you will probably start thinking
what a high copyright fee this is for Jacsó's usually two-page column.
But wait, one record says it is from pages 38–43 (six pages), but the other
claims it is on pages 38–39 and 42 (three pages). Should you fold 'em?
After all, you pay the same royalty for CIL articles, regardless
of the number of pages, right? But then you get a sinking feeling in your
stomach. You recall that just a short time ago you were charged a $5 copyright
fee for a three-page CIL column by this author, and a printout shows
that your recollection is correct. That price was "by the book," the same
as ITI set and kept unchanged for many years: a base fee of $3.50, plus
a 50-cent-per-page fee.
the Real Copyright Fee Please Step Forward!
new $15 copyright fee for CIL articles is discomforting. It sure
makes the article (service) fee look better (lower), but otherwise it does
not make sense. You can't fathom how Infotrieve ever arrived at that number.
it get it from The British Library catalog? No, BL says the copyright fee
is £5.27, which is about $7.50. This is half again as much as the
fee set by the publisher, but still only about half of what Infotrieve
charges for such short, two-page articles that are typical for columnists
in many ITI publications.
Infotrieve got the copyright information from the Copyright Clearance Center.
No, the CCC provides the same information ($3.50 plus 50 cents per page)
as the publisher.
copyright fee, which does not jibe with any of these published fees, may
be difficult to justify to your patron. Is there perhaps a profit added
to the copyright fee? That's unlikely. Now, should you fold 'em? Maybe
give another try.
Fee Plus Page Fee
up how much the copyright fee is for articles from the Information Today
newspaper through Infotrieve. Good, it is only $4.30 for the first document.
But the price looks a bit odd. Why? Because for articles in Information
Today, Infotrieve does not use a flat fee, but a base fee of $3.50
plus a page fee of 50 cents, and then adds the 30-cent Copyright Clearance
Center processing fee. This is odd, but moneywise better than the $15 flat
copyright fee, and you can justify it to your client.
enough, you think—until you realize that the bibliographic records from
The British Library, which are the backbone of the Infotrieve database,
very often claim longer page spans than the articles cover, and now (as
well as in the case of all of the journals for which you also pay a per-page
fee) this common error hurts. A two-page column becomes a six-page column.
You learn this when the document arrives, but do you remember that you
paid more for this document than you should have?
this 200-percent increase in pages raises the copyright fee for this article
only by $2, but $2 here, $2 there can grow into a pretty slush fund somewhere
in the chain when thousands of articles are ordered each day. Maybe you
should change jobs and work for the company where those extra fees land.
such mistakes in page numbers pervasive? It's hard to say what percentage
of the more than 32 million records in the Infotrieve database display
excess page numbers, but it caught my eye that records for four of my five
1998 CIL columns had wrong page numbers. In the case of other ITI
journals for which Infotrieve charges a base fee plus a per-page fee, that
is an 80-percent error rate that directly hits you or your client in the
pocket. Interestingly, I couldn't find any article where the BL page numbers
would have been less than the article really is. In all the cases the extra
pages clearly were unrelated to the column, such as full-spread ads and
Check's in the Mail
would take more research time to test a representative sample from such
a large database, but the implications are remarkable—and you can hardly
help wondering what happens when Infotrieve tries hard to transfer the
copyright fee to the publisher directly, to the Copyright Clearance Center,
or to the author (if he is the copyright holder). The third alternative
is easy to dismiss. This author has never received royalties from Infotrieve
or any other document delivery service (except for a handsome lump sum
from UnCover in a class action suit, settled out of court).
publisher may be more lucky, even though it may be a tad more difficult
to deliver and cash the royalty checks for CIL articles if they
are addressed to Meckler Corp. in Westport, Connecticut (as the Infotrieve
records suggest). Meckler was the publisher of CIL quite a long
time ago, and may not even be able to determine whether the checks belong
to someone else. Why? Read further to find out.
if the check reaches the publisher, this does not necessarily mean a happy
ending, as the publisher may need to forward the royalty or part of it
to the author (if he is the copyright holder). Well, this may not happen,
as most if not all of the royalty payments are forwarded from the document
delivery services to the publisher in a lump sum, for copies of many different
articles. Under this current practice, the publisher can't even guess whose
articles were copied and distributed.
a copyright-compliant information specialist dealt such a deck of cards,
is it time to "run"? Probably you should explore alternative document delivery
to the publisher directly may be more work, but you pay far less, and you
help the publisher. It may then have funds for a decent deal with most
of its authors to compensate them with a lump sum for reproduction and
distribution rights, as ITI did with a progressive and fair offer for articles
published after 2001. Now you know the other reason why I said "loyalty
above royalty" with regard to ITI. It's good for the goose and good for
the gander—as long as third parties charge appropriate copyright fees and
remit royalties to the copyright holder. I am pursuing that aspect of the
copyright fee conundrum, as it opens a new angle: the infringed copyright
of the author who specifically retained the reproduction and distribution
rights, but who still does not get royalties from document delivery transactions.
ordered and received in 3 days the two-page document I mentioned in the
column. The invoice repeated the same bibliographic data, indicating the
page numbers as pages 34–39, even though it is on pages 34–35. I sent an
e-mail to Infotrieve outlining the problem. They responded promptly, and
after clarifying some issues offered to reimburse me $2 for the four extra
pages (which I declined, knowing that this would be a lot of extra work
for Infotrieve). However, we got stalled in the basic question. The rep
claimed that I had indicated that I wanted pages 34–39, and that's what
they had charged me for. I pointed out that users have no choice (even
if they suspect that the information may be wrong) in specifying page numbers,
but must click on the "Place in Cart" button in the bibliographic record
presented by Infotrieve. Ordering is a totally automatic process. The users
assume that the page numbers and thus the copyright fees provided by Infotrieve
are correct, especially when they search the Infotrieve database. One mistake
of four extra pages is not significant, but articles with excess page numbers
in the ad-hoc test I made were excessive. Considering the volume of transactions
that take place each day, and the proportion of journals where a base fee
and per-page fee are used to determine copyright, this may be a large-scale
problem, may undermine the customers' trust, and may cause them to be regularly
overcharged. While our discussion stalled at this point, I trust that Infotrieve
and its customers can work out some solutions for compensating those who
have been overcharged, and that Infotrieve will make changes to prevent