COPYRIGHT CORNER

TABLE OF CONTENTS SERVICE:  FAIR USE?

June 2004

Many libraries offer a “table of contents” service for their users.  Whether such a service runs afoul of copyright law has long been debated in library circles; neither the courts nor Congress has considered the matter and whether it qualifies as a fair use.  For some types of libraries, contents services are traditional and ubiquitous.

When a library receives journal issues, it may choose to either photocopy the table of contents page or scan it to circulate to its users or a subset of those users.  Sometimes a single photocopy of a table of contents is circulated to multiple users and other times multiple copies are produced so that each user interested in that particular journal receives an individual copy of the contents page.  This practice raises three different issues for fair use:  (1) photocopying of either single or multiple copies of journal contents pages, (2) scanning contents pages and posting them on an intranet (whether password protected or not) and (3) permitting users to use contents pages as a selection device for articles they want reproduced for them.  Several libraries even advertise their table of contents service on the web.

Libraries implement such services for two purposes:  first, as a notification device so users will know what articles from a particular journal are available and second, to permit users to select which articles they want the library to reproduce for them.  In some subject disciplines, there are commercial or nonprofit alternatives available that distribute tables of contents.  For example, in law there is Current Index to Legal Periodicals, published by the University of Washington Law Library.  It is both a weekly subject index to law reviews and other law journals and it also contains tables of contents.  This is done with permission of the journals. But in other subject disciplines there is no specific table of contents alternative.  Ingenta’s Reveal service is an electronic table of contents service as do several journals themselves.

The contents page is copyrighted along with the entire journal issue.  Some tables of contents contain nothing except factual data:  author, article title and then page number.  Although facts are not copyrightable, it is possible that the arrangement of the facts might be protectible, but such an arrangement would have to meet the originality standard with its creativity requirement in order to qualify for copyright protection.  Other journal contents pages also contain abstracts which are separately copyrighted as derivative works.  Thus, contents pages that contain abstracts are more likely to be copyrighted than those that contain only bibliographic data.

When a company has an Annual Authorization License or Photocopy Annual License for in-house copying with the Copyright Clearance Center, that license permits the library to photocopy tables of contents for employees.  These licenses do not permit any electronic distribution or storage of contents pages.  Companies that have the add-on Digital Repertory Amendment are allowed to scan tables of contents if the journal is not available in digital format and to distribute them to company employees.

If tables of contents pages are copyrightable, a non-CCC licensed library that reproduces copies of contents pages has reproduced a protected work which may raise copyright concerns. Except for preservation under sections 108(b) and (c), libraries are limited to single copying at the request of an individual user for that item.  The question is whether this practice is fair use.  It well may be although the matter has never been litigated.

Scanning tables of contents for distribution to users, absent a CCC or other license, may be more problematic.  Publishers generally are more concerned about digital rather than analog distribution of their works.  The chance that tables of contents could be distributed digitally outside of a particular library is increased over that of photocopies.

Under section 108(d) libraries are permitted to make a single copy of an article from a journal issue for a user.  One way that users often make requests for copies is via a table of contents page reproduced and distributed to users.  Users often circle the article they want and return the contents page to the library as a device for ordering photocopies from the library.  Thus, for these libraries, the table of contents service is more than a notification device – it is a device for ordering copies. A court is more likely to find this copyright infringement than a simple notification.  Libraries that copy more than one article per issue for a user without seeking permission and/or paying royalties, exceed the exemption provided in section 108(d).

For non-CCC libraries there is an alternative in addition to commercial table of contents services.  Bibliographic data is factual in nature.  An individual listing of an article in a table of contents is not copyrightable.  So, if a library stripped out bibliographic data from tables of contents from various journals and then assembled them by subject, it has created a new compilation which it could distribute either by photocopying or digitally.  Reproduction of the articles listed still presents the same copyright issues, but the notification device created by the library from a variety of sources does not.

Back in the early 1980s when publishers sued pharmaceutical companies for copyright infringement for in-house photocopying of articles from their journals, the interrogatories queried whether the library reproduced tables of contents and provided them to employees of the company.  These cases were settled, so the issue of distribution of reproductions of contents pages of journals was never litigated.  It remains a common practice among libraries including those that do not have annual CCC licenses.