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Thailand Law Journal 2014 Spring Issue 1 Volume 17

Likewise, section 38 of the UK CDPA 1988 allows the librarian to make and supply a copy of an article in a periodical without infringing any copyright in the works provided that the prescribed conditions are fulfilled.190 These prescribed conditions include that such copies are supplied only to persons satisfying the librarian that they require them for the purposes of research for a non-commercial purpose or private study, and will not use them for any other purpose.191 Importantly, they also require that no person is furnished with more than one copy of the same article or with copies of more than one article contained in the same issue of a periodical.192 These conditions must be satisfied in order to be exempted from infringement of copyright under section 38.

Similarly, section 39 allows the librarian to make and supply a copy of a part of published literary, dramatic or musical work other than an article in a periodical without infringing any copyright in the work provided that the prescribed conditions are complied with.193 The prescribed conditions in section 39 are very similar to those in section 38. For instance, section 39(2)(a) also requires that copies are supplied only to persons satisfying the librarian that they require them for the purposes of non-commercial research or private study only.194 Also, it provides that no person is furnished with more than one copy of the same material or with a copy of more than a reasonable proportion of any work.195

Both section 38 and 39 are subject to section 40 which attempts to ensure that section 38 and 39 will not be used as an instrument to facilitate multiple reproductions.196 For this reason, section 40 places a number of responsibilities on librarians copying works on behalf of a researcher or student. First, it requires that librarians must satisfy themselves that a copy is for research or study and will not be used for any other purpose.197 Second, it requires that a copy should be supplied only to a person satisfying the librarian that his requirement is not related to any similar requirement of another person.198 This means that the requirement or request of the students or researchers for a copy is not related to any similar request or requirement of another person and also that only one copy can be provided.199 Requirements will be regarded as similar if they are for copies of substantially the same material at substantially the same time and for substantially the same purpose.200 Also, requirements of persons will be regarded as related if those persons receive instruction to which the material is relevant at the same time and place.201 This requirement will help to guarantee that the librarian will not engage in multiple reproductions because the librarian cannot make a copy for two persons with the same requirement for a copy and also it limits the number of copies to only one.

In most cases, the librarian may require the researchers or students to provide proof of registration on a course of study with an educational institution, while a declaration may need to be signed by the student before a copy of a work can be made for him or her under section 40 of the CDPA 1988.202 This declaration signed by the student or user can be used as evidence for librarians who copy a work to avoid potential liability for copyright infringement because the user must also declare that he understands that if the declaration is false, then the copy made by the librarian will be an infringing copy and he will be liable for copyright infringement as if he made the copy himself.203 In practice, there is the library declaration form, which will enable individuals to confirm to librarians making copies on their behalf that they meet all requirements before copies are made.204 The conditions contained in the library declaration forms are set out under regulations and this form is intended to be completed by the user requesting a copy of an article in a periodical or part of published works in which copying covered by section 38 and 39.205 It requires the user to declare: first, he has not previously been supplied with a copy of the same materials by the librarian making that copy or other librarians; second, he must ensure that to his knowledge, there is no other person who he works or studies with who has made or intends to make a request for substantially the same materials for substantially the same purposes at substantially the same time as this request; and third, he will not use such copy except for research for non-commercial purposes or private study and will not supply it to other persons.206 The first two requirements in the library declaration form clearly support the approach recommended in this article because it intends to ensure that users cannot ask the librarian to make multiple reproductions of copyright materials for them, while the third condition ensures that the user will not distribute such copy to other persons and will not use it for commercial purposes. These conditions are clearly designed for protecting the economic interests of copyright owners by preventing multiple reproductions of copyright materials and forbidding the distribution of such materials to others since such distribution can cause damage the copyright owner's other markets.

Importantly, the UK IPO believed that library declaration forms will help to ensure that the exception satisfies the three-step test because it can safeguard the economic interest of copyright owners by allowing librarians to be in a position to exercise a degree of control over any copying and this can also ensure that librarians themselves do not become liable for copyright infringement.207 Recently, the UK IPO attempted to introduce a new library declaration form with additional sections asking users for the name of the educational institutions of which they are a member and an indication of the relevant course of study or research undertaken.208 This library declaration system should be very useful for Thailand because it not only ensures safeguards for the economic interest of copyright owners but it also protects the librarians against liability for copyright infringement when making a copy for the student. Currently, there is no provision requiring that a declaration must be signed by a student or a person requesting a copy before such copy of a work can be made in the Thai education sector, so there is no measure to safeguard the librarians that they will not be liable when they make copies for others. Thus, this Article recommends that this system of signed declarations in the UK CDPA 1988 should be inserted into section 34 of the Thai CA 1994 because under the current approach, librarians in Thailand could be faced with an infringement of copyright at any time when they reproduce copyright materials for students. This is because section 34 does not make clear what amount of reproduction should be permissible under the exception for libraries. With the introduction of a signed declaration system, the economic interest of copyright owners can be properly safeguarded and the librarians who copy a work for students can avoid the potential infringement of copyright by relying on the declarations signed by the students or users as evidence. If a person makes a false declaration, that person himself will be liable for infringement of copyright, not the librarian.

The exceptions for libraries in the US Copyright Act 1976 also contain a clear limitation as to the amount of reproduction, along with a clear prohibition on multiple reproductions. In this aspect, section 108(a) makes clear that it is not an infringement of copyright for a library or any of its employees acting within the scope of their employment to reproduce or distribute not more than one copy of a work, provided that the basic conditions are satisfied. In practice, there are several basic conditions which must be satisfied. One is in section 108(g) which provides that such permitted reproduction by a librarian will extend to the isolated and unrelated reproduction of a single copy of the same material on separate occasions.209 However, it does not extend to cases where the librarian has substantial reason to believe that it is engaging in the reproduction of multiple copies of the same material regardless of whether the copies are made on one occasion or over a period of time, and of whether it was intended for separate use by the individual members of a group or aggregate use by one or more individuals.210 For example, if a teacher instructs his class to read an article from a copyright journal, the librarian cannot reproduce copies of the article for all students because such activities would not be permitted under section 108(g).211

Importantly, this section make clear that it does not authorize the librarian to engage in the systematic reproduction of single or multiple copies of copyright works.212 The statute does not provide a definition of 'systematic reproduction' but it was described in the circular 21 of the US Copyright Office as follows:

'the systematic reproduction or distribution occurs when a library makes copies of such materials available to other libraries or to groups of users under formal or informal arrangements whose purpose or effect is to have the reproducing library serve as their source of such material.'213

The systematic reproduction of copyright works is different from 'isolated and unrelated reproduction' because it can substitute the copies reproduced by the source library for subscriptions or reprints which the receiving libraries or users may have purchased from the publisher or the copyright owners.214 For example, a library with a collection of law journals informs other libraries that it will make copies of articles from these journals available to them and their users on request and, as a result, the other libraries discontinue purchasing subscriptions to these journals and fulfil their users' requests for articles by obtaining photocopies from the source library.215 Another example is if several branches of a library agree that one branch will subscribe to law journals instead of each branch purchasing its own subscriptions, and the one subscribing branch will reproduce copies of articles from the publication for users of the other branches.216

These examples above are prohibited by section 108(g), which is designed to prevent the library from producing single copies of the same work on repeated occasions or producing multiple copies, because such reproduction may have significant effect on the market and probably impair the economic interest of copyright owners. This means that the isolated and spontaneous making of a single photocopy by a librarian for its users or another library without any commercial motivation and without any systematic effort to substitute photocopying for subscriptions or purchases can fall within the scope of section 108. But this exception does not extend its scope to cover 'multiple' and 'systematic' photocopying or reproductions of copyright work as the means to substitute for subscriptions or purchases.217

In addition to the basic conditions in section 108(g), the US Copyright Act also attempts to restrict the ability of the librarian to reproduce copyright materials for users by requiring additional conditions to be satisfied in each subsection. For instance, section 108(d) specifically allows the librarian to reproduce the copyright works where the users or other libraries make their request to the library. However, it only permits the librarian to make a copy of no more than one article or other contribution to a copyright collection or periodical issue, or a copy of a small part of any other copyright work for the users or other libraries. Importantly, such reproduction under section 108(d) can be allowed only if the copy becomes the property of the user and the librarian has had no notice that the copy would be used for any purpose other than private study, scholarship, or research.218 This condition does not require the librarian to investigate the user's purpose and similarly does not require that such reproduction of the copyright work must be for private study, scholarship, or research. It only requires that the librarian must have no knowledge that the purpose of the user is other than private study, scholarship, or research. This means that the librarian will satisfy this requirement if it has no information about the user's purpose. In contrast, the UK exception for libraries requires that librarians must satisfy themselves that a copy is for research or study and will not be used for other purposes. The UK approach seems to be more secure and makes it easier for the librarian to make a decision since it requires users to sign a library declaration forms to agree that they will not use such copy except for research and study for commercial purposes and will not supply it to other persons.219 With this form, librarians in the UK can have information about the user's purposes and can rely on such forms if an action for copyright infringement is brought against them.220

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190 Section 38(1) of the UK CDPA 1988.

191 Section 38(2)(a) of the UK CDPA 1988.

192 Section 38(2)(b) of the UK CDPA 1988.

193 Section 39(1) of the UK CDPA 1988.

194 Section 39(2)(a) of the UK CDPA 1988.

195 Section 39(2)(b) of the UK CDPA 1988.

196 Bently, L and Sherman, B, Intellectual property law, (3rd edn, Oxford University Press, Oxford 2009), at 211.

197 Section 40 of the CDPA 1988; See also Statutory Instrument 1989 No. 1212.

198 Section 40(1) of the CDPA 1988.

199 Section 40 of the CDPA 1988; See also Statutory Instrument 1989 No. 1212

200 Section 40(2)(a) of the CDPA 1988.

201 Section 40(2)(b) of the CDPA 1988.

202 Section 40 of the CDPA 1988; See also Statutory Instrument 1989 No. 1212.

203 Burrell, R and Coleman, A, Copyright exceptions: The digital impact, (1st edn, Cambridge University Press, London 2005), at 146.

204 UK Intellectual Property Office (IPO), 'Taking forward the Gowers Review of Intellectual Property: Second stage consultation on copyright exceptions' (2009), accessible at  http://www.ipo.gov.uk/consult-gowers2.pdf [Accessed February 20, 2014], at 34.

205 Burrell, R and Coleman, A, Copyright exceptions: The digital impact, (1st edn, Cambridge University Press, London 2005), at 145-146; See also British Academy Joint Guidelines on Copyright and Academic Research 2008, at 19.

206 Ibid at 146.

207 Ibid at 146; See also UK Intellectual Property Office (IPO), 'Taking forward the Gowers Review of Intellectual Property: Second stage consultation on copyright exceptions' (2009), accessible at  http://www.ipo.gov.uk/consult-gowers2.pdf [Accessed February 20, 2014], at 34.

208 Ibid at 33 (IPO Report 2009).

209 Section 108(g) of the US Copyright Act.

210 Section 108(g)(1) of the US Copyright Act.

211 The United States Copyright Office (USCO), 'Circular 21: Reproduction of copyrighted works by educators and librarians' (2009), accessible at http://www.copyright.gov/circs/circ21.pdf [Accessed February 20, 2014], at 13.  

212 Section 108(g)(2) of the US Copyright Act.

213 The United States Copyright Office (USCO), 'Circular 21: Reproduction of copyrighted works by educators and librarians' (2009), accessible at http://www.copyright.gov/circs/circ21.pdf [Accessed February 20, 2014], at 13.

214 Ibid. 

215 Ibid.

216 Ibid.  

217 Ibid at 19.

218 Section 108(d)(1) and section 108(e)(1) of the US Copyright Act. 

219 Burrell, R and Coleman, A, Copyright exceptions: The digital impact, (1st edn, Cambridge University Press, London 2005), at 145; See also UK Intellectual Property Office (IPO), 'Taking forward the Gowers Review of Intellectual Property: Second stage consultation on copyright exceptions' (2009), accessible at http://www.ipo.gov.uk/consult-gowers2.pdf [Accessed February 20, 2014], at 31-33.

220 Ibid at 145.


 

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