Copyright Law, Library Reproduction, and E-Resources
All matters of law are complicated. We at the JKM Library are not lawyers, and we are especially not your lawyers. The following explanation is not to be understood as legal advice; it is merely intended to help you understand some practical aspects of U.S. copyright law as it applies to you, and to us.
As members of the communities of McCormick Theological Seminary and the Lutheran School of Theology at Chicago—and also patrons of the JKM Library—you are expected to work with a lot of copyrighted material. You need to get a good idea of what you are allowed to do with it, under what terms—and what we are allowed to do with it, as we help you.
U.S. copyright law, as codified in §17 of the U.S. Code, restricts all rights over a content creator's published work to that creator, and then develops limited exceptions to those restrictions for "fair use" and libraries and archives. The main idea is to protect that work from being reproduced in ways that would put profit in the hands of someone other than its creator.
The JKM Library, like McCormick, LSTC, and any other institution, group, or individual subject to US law, is heavily restricted in our ability to distribute copyrighted material.
However, within those restrictions and their exceptions, and with the help of our library partnerships, we do our best to provide support to the courses and research programs of both seminaries.
The rest of this page will help explain those restrictions in more detail, as well as what we, and you, are allowed to do within them.
What is "Fair Use"? | What am I allowed to do?
What is JKM allowed to do for me?
Copyright and licensing electronic resources
What is "Fair Use"?
Practically speaking, "fair use" is an argument a lawyer might be able to make on your behalf, if you were sued for copyright infringement, to justify actions that would otherwise violate copyright.
This means that "fair use" is an affirmative defense: you would be admitting to reproducing material you do not own, and listing the conditions you believe might justify that in your specific case.
For a detailed example of what this means in U.S. law, see the model jury instructions on "fair use" for the U.S. Ninth Circuit.
It is important to recognize that the legal climate today is heavily overbalanced toward the claims of corporations. The specifics of what counts as "fair use" are constantly being tested and redefined in courts, and there are no guarantees.
However, the basic terms of the "fair use" exception are codified in section 107 of title 17 of the U.S. Code:
Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—
the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
the nature of the copyrighted work;
the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
the effect of the use upon the potential market for or value of the copyrighted work.
The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.
Note that clause, "for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research," and what is known as the "four factors" test. These elements of 17 USC 107 are the key guidelines for determining whether your use of a copyrighted work may be justified as "fair use."
You can find more detail about all of this on the University of Chicago Libraries' page on copyright and "fair use," and in the relevant section of the Chicago Manual of Style (18th edition).
What am I allowed to do?
As employees and patrons of an academic library, as well as members of the non-profit educational institutions it serves, "fair use" means that we may potentially justify appropriate academic use (factor 1) of select portions (factor 3) of relevant works (factor 2).
Some examples of that appropriate use are given in the statute: "for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research."
But again, these are not guarantees. Every one of them has a list of cases in which claims to "fair use" have been challenged by rightsholders issuing lawsuits. The outcomes of those cases have generally cut down the amount of material that can be used, and the kinds of material that can be considered relevant.
The other key aspect of "fair use" is that, because of our academic purposes, we are also presumably not reproducing copyrighted material in order to harm the author's ability to get paid for their work otherwise (factor 4).
So it is important that, when we have the opportunity, we do in fact compensate authors for their work. You buy books, and libraries also buy books and subscribe to journals and database services on your behalf.
The logic behind "fair use" is similar to the logic behind academic policies against plagiarism. Plagiarism is a problem of taking credit for another person's work, and it is solved by proper citation and attribution, demonstrating that you know whose work you are reproducing, and which work is actually your own.
This practice of academic citation goes a long way towards showing that your use of copyrighted material from other authors is intended to be "fair use" in your own work. Which is especially important if you intend to publish!
What is JKM allowed to do for me?
The fact that, as an academic library, the JKM Library is allowed to reproduce copyrighted material for you is covered by the following section 108 of title 17.
While this part of the law is much longer and more complicated, broadly speaking it explains that a library or archive, such as the JKM Library, is permitted:
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to create and distribute a copy of a relatively small portion of a work, or a larger portion if such a work is otherwise extremely difficult to obtain;
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to do so on request, for the purposes of "fair use," for an individual whose property the copy then becomes, and who is then independently liable for their own use of it;
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as long as we clearly explain both at point of request and in a warning attached to the distributed copy that it is covered by U.S. copyright law.
In compliance with 17 USC 108, the JKM Library staff are careful to stay within relatively conservative limits, and we reserve the right to refuse any request which seems to us to exceed those limits.
However, today this exception functions primarily, if not exclusively, for the non-licensed use of print materials already in the library's collections.
To the extent that resources are needed by our patrons, but not immediately accessible for any of a variety of reasons, JKM Library staff is willing to facilitate access to resources—such as journal articles or chapter scans—even if those resources are in electronic format, as long as you would otherwise be able to acquire them legally yourself.
Copyright and licensing electronic resources
Electronic resources are qualitatively different from print materials, especially in terms of permissible usage.
An electronic book is not simply a digital copy of a print book. It comes with additional technological limitations, imposed both to approximate the physical limitations of borrowing a library book, and often to add further restrictions. These may include:
- per-seat licensing restrictions
- time limits for access
- limited ability to print
- limited ability to export to open formats such as PDF
Additionally, licensed electronic resources are limited to use by only the institutional patrons of the library licensing them.
Circumvention or violation of these measures risks loss of access. Access to electronic resources can always be revoked; while we pay money for them, we never own copies of these works the same way we own our print books. Additionally, violation of licensing terms may be treated as equivalent to violation of copyright.
More permissive licensing costs more money, especially when it comes to resources one or more classes will need access to. This imposes a tradeoff: how many resources can we acquire, at what level of access, for how many people? As with physical books, one copy of an electronic resource—or even three—will not support a class, though it might be enough for a reference work.
Maintaining a large portfolio of electronic resources to support the curricula of two seminaries is therefore significantly more expensive, year after year, than a print collection which we own outright. However, it serves more people at a time, and enables vastly greater remote access for our institutional patrons. This access is now not only an expectation, but a curricular necessity.
The JKM Library attempts to buy licenses that allow as many patrons as possible to access a resource. We also maintain some access for alumni. Our patrons remain individually responsible for their own "fair use" of the material in these electronic resources. Our licenses do not allow broader library reproduction of this material.
Our patrons access licensed electronic material individually, through an authentication system which requires JKM staff to terminate their access when they cease to be affiliated with McCormick or LSTC by student or employment status. This system also sets regular term limits at which that access expires and must be renewed.
Guest access by physical presence in a library, connected to its systems, is the only functional loophole today for electronic resource access outside of individual user authentication. This is why you can access the resources licensed by other institutions' libraries—such as the University of Chicago Libraries—while physically present in their libraries or on their campuses, either over wireless networking or using their own computer terminals. These systems are generally set up to bypass individual user authentication, usually through authenticated IP address ranges.
Unfortunately, since 2023 the JKM Library no longer has its own wireless networking or computer terminals, such as used to make guest access possible for our visitors.
Faculty and administrators should seriously consider these limitations when designing curriculum which will depend on electronic resources. While these resources allow us to reach beyond the limits of our physical premises, they do not permit us to reach beyond the limits of registered institutional affiliation.
