Joanne P. Dugan is Manager, Librarian Relations, West Group, Eagan, MN.
Over the past few years, law librarians have become increasingly aware of the issues surrounding copyright. Although copyright has existed in the United States since the Constitution was adopted, several factors have converged to make this venerable area of law as hot a topic as genetic engineering and e-commerce. The digitization of information, which lowers technical barriers to reproducing and distributing works, has resulted in a slew of new legislation1, a revolution in the publishing industry, and a major shift in libraries’ collection development policies, from “just in case” to “just in time.” 2
Another major factor which has raised law librarians’ awareness of copyright is the Copyright Clearance Center’s increased marketing activities focused on law libraries. In the past, many law librarians have felt that these marketing efforts exceeded normal standards of commercial behavior, citing instances of harassment, intimidation, and refusal to take “no” for an answer. In February 2000, I wrote an article for the AALL Spectrum outlining my experience with the CCC in less than flattering terms.3 In April 2000, AALL President Bob Oakley wrote a letter to the CCC protesting these sales tactics and stressing the fact that AALL encourages compliance with all aspects of copyright law, including permissible copying under fair use and the library exception.
More than a year has passed since AALL first expressed its concern to the CCC. At the AALL Annual Meeting in Minneapolis, I moderated a panel discussion entitled, “When to Pay the Piper: The Copyright Clearance Center – Robin Hood of the 21st Century, or Robbing Peter to Pay Paul?” As a result of that program, I am now optimistic that the relationship between the law library community and the CCC is on the right track.
The panel consisted of Bob Weiner, Vice President of Corporate Sales and Publisher Relations for the CCC, Mary Ames, Director of Library Services at Edward & Angell, LLP, a firm which has recently signed an annual agreement with the CCC, and Ann Carter, Director of Library and Information Services at Dorsey & Whitney, LLP, a firm that has chosen not to sign an annual agreement with the CCC. Each panelist gave a brief presentation of their views on the CCC and other avenues for copyright compliance. We then had a moderated panel discussion, followed by a Q&A session with the audience. Here are some of the highlights of the program.
For those not familiar with the CCC, the program offered a quick overview. The CCC is a not-for-profit organization formed in 1978 at the suggestion of Congress following the enactment of the 1976 Copyright Act. The CCC represents authors and publishers (“rightsholders”) who have registered their works with the CCC. Consumers who wish to reproduce the registered works beyond the limits allowed by fair use or the library exception may obtain permission through the CCC, rather than contacting each rightsholder individually.4 Within this general scheme, there are several options available to libraries that choose to use the CCC’s service. First, libraries can choose between the transactional reporting service or the annual blanket license. The transactional service is a pay-as-you-go plan where users report and pay a fee for each registered work they copy. The annual license offers unlimited internal copying for all registered works for a single annual fee, based on the number of professional employees in an organization. The annual license is only available to private firms and government agencies, not to academic libraries.5
Another choice for libraries is whether to participate in the photocopy program alone, which deals only with print works, or also to opt for the digital license. The digital license is a fairly new product for the CCC. It covers works published in electronic format, an area of growing importance for all libraries. Because this is a new product, the CCC is still growing its repertory of works covered by the digital license. Mr. Weiner was quite frank about the fact that no legal publishers have registered their works for the digital license. Most of the works covered at the moment are from news organizations or science, technical, and medical publishers. So, if a law firm is considering purchasing a digital license, it should make that decision based on how frequently it reproduces the electronic works of these publishers, rather than looking at its legal publications.6
Of course, before a library is even faced with these various options, it has to make the initial decision of whether to enter into a contract with the CCC at all. An annual license with the CCC is a substantial financial outlay.7 The CCC is one avenue for fulfilling your obligations under the copyright laws but it’s not the only option, and it’s not a complete solution. Once again, Mr. Weiner was very up-front about the fact that even the annual “blanket” license is limited. First, it only covers works by authors and publishers who are registered with the CCC. Many legal publishers are now registered with the CCC, but there are still holes in the coverage. Where a work is not covered, libraries must still use other means to gain copyright permission.8 Second, the CCC license only covers internal copying, meaning that the copies cannot go to people who are not employees of your organization. So, if you want to send an article to a client or distribute it at an external CLE or post it on your website, you will still need to get permission from the rightsholder or pay separately through the transactional reporting service. Third, the photocopy license covers only photocopies of print works; it does not give you permission to replicate or forward electronic works. The digital license does allow this sort of electronic duplication, as well as allowing a firm to post an article on its internal intranet, but again, the set of publications covered by this digital license is significantly more limited than the photocopy license and does not currently include any legal publishers.
Despite these limitations, many organizations, including law firms, have chosen to purchase an annual license from the CCC.9 Among the selling points is the fact that, for works covered by the agreement, the permission is quite broad. An annual license allows a firm to do unlimited, systematic copying for internal use, with the exception of cover-to-cover copying. The CCC has an impressive repertory of works, representing about 10,000 publishers, 1.75 million titles, and thousands of creators. The CCC is also a member of IFFRO,10 an international organization that facilitates copyright across borders.
For many firms, the most attractive aspect of a CCC license is peace of mind. It is seen as a form of “litigation insurance.” Although a CCC license does not preclude the possibility of being sued for copyright violation, it is evidence of a good faith effort to comply with copyright law. On the other hand, a CCC license may give employees a false sense of security about their copying practices, when in fact there are still many instances of copying in a law firm setting that are not covered by the CCC license and which do not fall within the realm of fair use or the library exception.
Regardless of whether your organization chooses to use the CCC, keep in mind that the ultimate responsibility for copyright compliance lies with the organization itself and cannot be abdicated to a third party like the CCC. As Ann Carter emphasized in her presentation, the most valuable role we as librarians can play is to advocate for
a visible, comprehensive, and consistent internal program for copyright compliance that is explicitly supported, measured, and enforced by senior management.
 Including the Digital Millennium Copyright Act (DMCA), the Uniform Computer Information Transactions Act (UCITA), the Hague Convention on Jurisdiction and the Recognition and Enforcement of Foreign Judgments in Civil and Commercial Matters.
 Another recent event that brought copyright to the forefront of our attention is the Supreme Court’s recent decision in New York Times v. Tasini, 121 S.Ct. 2381 (2001), where the Court ruled that freelance writers who sold their work to print publishers retained the copyright to their works in electronic format, and print publishers could not automatically include them in electronic versions of their publications. As an interesting aside, Mr. Weiner noted that the CCC provides the “back office” support for the Publications Rights Clearinghouse of the National Writers Union, which represents freelance authors.
 Although the CCC was formed in 1976, its focus on law libraries is fairly recent. When first formed, the greatest need was seen in the science, technical, and medical fields (known as “STM” in the publishing world) and it concentrated on building its catalog of works in that area. About 3 or 4 years ago it began focusing on the legal field and has since solicited legal publishers and law firms for its services.
 The CCC also offers an electronic course content service for academic institutions. This service allows schools to offer electronic versions of works that would normally be distributed in traditional photocopied course packs. If an article is not already in the CCC’s repertory, they will work with the rightsholder to obtain permission.
 For instance, the digital license would not have solved the problem I described in the Spectrum article, when I learned that the CCC photocopy license would not encompass my electronic subscription to BNA’s Daily Environmental Reporter. On the other hand, a firm that has a significant medical malpractice or patent practice, and which does a significant amount of copying from the STM publishers, may decide that the digital license makes good sense for them.
 The current cost for a law firm annual license is $165 per professional employee, defined as an attorney for law firms. Although based on the number of professional employees, the license covers all employees of the organization. The cost of a license varies from industry to industry. The price for the annual license is set by a committee made up of publishers who license their works through the CCC. The price for an article obtained through the transactional reporting service is set by the individual rightsholder.
 One of the most promising developments in this field is a technology called “Rights Link.” Rights Link allows someone reading an article on the internet to purchase an on-the-spot license to further distribute the work. The CCC developed this technology and it is currently available to publishers who register with the CCC.