What are librarians allowed to do?

You may supply a copy (including digital copies) of published books, sheet music, plays and periodicals to a person on these conditions (Copyright Act sections 51 & 52).

• You may copy a whole article from an issue of a periodical, or several articles on the same subject. However, if you are supplying interloans under s53 of the Act, then the number of articles on the same subject matter is limited to two.
• Otherwise, the copy must be of a reasonable proportion of the published work.
• You may only supply a single copy of an article to a user on any one occasion.
• Payment on cost recovery basis only.
• The copy may only be used for research or private study. This means the copy must be given to the person who is using the work, rather than someone who has requested the work on their behalf.
• When a digital copy is supplied, it must be accompanied by a notice that the work can only be used for research or private study.
• You must destroy any other digital copy made in the process of fulfilling the request.

Same subject matter

Section 52 allows librarians to copy and supply more than one article per issue if they are on the same subject matter, but there is no guidance on what “the same subject matter” means.

It would be prudent to interpret this strictly, given the nature of academic journals which tend to be defined along “same subject matter” lines. It would be wrong to assume that because all articles in a journal are on the general subject of the journal, there is no restriction on how many we may copy. If there was more than one article on a quite specific topic in a single issue then copying more than one of them would be permissible. Examples: special issues; or when two parts of an article are in the same issue.

Section 54 allows librarians to supply copies of literary, dramatic, and musical work from our collections for the collections of other libraries. This is restricted to copies “from a published edition that is a book”. A copy of the book can be supplied in electronic form.

The librarian to whom the copy of the work is supplied must:

• Have been unable to obtain the work at an ordinary commercial price within the six months preceding the supply.
• Make and keep a record sufficient to identify the work copied.
• Permit the inspection of the record by the copyright owner during normal office hours.
• Pay, on demand, equitable remuneration to the copyright owner for the work copied.
  

If the copy to be supplied to another library is a digital copy, you must destroy any other digital copy made in the process of fulfilling the request.

Managing section 54 requests

To avoid the situation where copies are stamped with words to the effect that “this is only for personal use” requestors should explain the purpose of the request. A note on the catalogue record that it was obtained under s54 should serve as “a record sufficient to identify the work copied” and it would be available for inspection. Libraries generally use s54 by interloaning a book themselves and then making a copy. The LIANZA Guidelines for Librarians takes a common-sense approach to this practice:

“It is within the spirit of this section of the Act for the librarian of a prescribed library to borrow an item from another library and make a copy of it, for the purposes of adding it to its own collections, provided that the conditions listed under paragraph 6.1 above have been met. The borrowing library should place a stamp or sticker on the copy stating that: ‘This copy has been made in accordance with the provisions of section 54 of the Copyright Act 1994’.”

Copying under CLNZ licence

New Zealand universities are trialling an extension to the CLNZ licence to use copies of works covered by the licence obtained by interlibrary loans (LICs). LICs can be provided to other libraries in print or digitally. Copies obtained in this manner must be included in the e-reporting return to CLNZ.

If the trial is successful, CLNZ will seek mandates from rights owners to make the scheme permanent.

Section 55 allows librarians to make non-digital copies, e.g., photocopies, of any item in its collection that are worn, damaged or at risk of destruction without having to remove the original from the shelves.

You may make a digital copy of an item in the collection for the purpose of preserving or replacing it in our collection or another library’s collection under these conditions:

• The original item is at risk of loss, damage, or destruction.
• It is not reasonably practicable to purchase a copy of the original item.
• The digital copy replaces the original item.
• The original item is not accessible by the public after replacement by the digital copy. However, researchers may have access to the original if the nature of their research may benefit from it.

Supplying other libraries

The Library can only supply another library with a digital copy to replace an item in their collection that has been lost, damaged or destroyed. It is reasonable for a library to borrow an item to make their own copy. The borrowing library should place a stamp or sticker on the copy stating that: “This copy has been made in accordance with the provisions of section 55 of the Copyright Act 1994”.

Format shifting

Section 55 allows the copying of any item in the collection if it is at risk of loss, damage, or destruction. This provision can be used to format shift from obsolete formats, e.g., VHS videotape, to a digital format if there is no DVD or streamed version commercially available, on the basis that inability to access the original item is a form of loss.

You may make digital copies of a work available to authenticated users of the Library on these conditions (Copyright Act section 56A)

• The digital copy has been obtained lawfully.
• The librarian informs each user in writing about the limits of copying and communication allowed under the Copyright Act, including that a digital copy of a work may only be copied or communicated by the user in accordance with the Copyright Act.
• The digital copy is communicated to the user in a form that cannot be altered or modified.
• The number of users who access the digital copy at any one time is not more than the aggregate number of digital copies that we have licensed or purchased.

An authenticated user means a person who:

• Has a legitimate right to use the services of the library.
• Can access the digital copy only through a verification process that verifies that the person is entitled to access it.

You may supply a person with a copy from an unpublished work in the library collection on these conditions (Copyright Act section 56)

• Only one copy is supplied at a time.
• Payment on cost recovery basis only.
• It must not be copied if the copyright owner has prohibited copying, and the librarian is or ought to be aware of this.
• The copy may only be used for research or private study.
• When a digital copy is supplied, it must be accompanied by a notice that says it may only be used for research or private study.
• You must destroy any other digital copy made in the process of fulfilling the request.

Example

A person requests a copy of a thesis for a colleague who is overseas. The library can only provide a copy to the person who is going to use it for their research or private study. This means the request must come directly from the person wanting to use the work.

The word reasonable relates to the use of reason and if librarians have sound reasons for determining the proportion of a work they have copied, then the law has some flexibility in how much may be copied.

There is no set quantity or proportion stipulated by the Act (and the popularly-held view that there is a limit of 10% is not specified in current legislation). Sometimes it may be reasonable to copy the whole work, for example if it is out of print and unlikely to be republished. Section 43 sets out the factors when considering what a reasonable proportion is for these purposes:

1. The purpose of the copying (it can only be for private study or research).
2. The nature of the work copied.
3. Whether the work could have been obtained within a reasonable time at an ordinary commercial price.
4. The effect of the copying on the potential market for, or value of, the work.
5. If part of a work is copied, the amount and substantiality of the part in relation to the whole work.