Butler, Brandon

Crews, Kenneth D.

Ferullo, Donna

Smith, Kevin L.

English

KU ScholarWorks

White Paper:US Law and InternationalInterlibrary LoanBrandon Butler, Director of Public Policy Initiatives, Association of Research LibrariesKenneth D. Crews, Director, Copyright Advisory Office, Columbia University LibrariesDonna Ferullo, Director of the University Copyright Office, Associate Professor of Library Science, Purdue University LibrariesKevin L. Smith, Director of Scholarly Communications, Duke University LibrariesIntroductionVarious recent events have raised questions about the proper scope of interlibrary loan (ILL) arrangements with non-US institutions,particularly the ability of a library to send copies of materials to non-US libraries. We believe that US copyright law supports the ability of domesticlibraries to participate in ILL arrangements and to send copies of some copy-righted works to foreign libraries, provided the libraries meet the requirementsof the law. Although the law is not necessarily explicit about the conditions forsending copies of works through ILL, a few simple steps taken by librariesshould provide greater assurance that the arrangements are serving the needs of libraries, researchers, and copyright owners.Relevant Legal ProvisionsParticipation in ILL arrangements is a well-established practice in libraries inmany countries. US copyright law allows libraries to make and distribute copiesof copyrighted works in connection with ILL arrangements under Section 108(Reproductions by Libraries and Archives)1 and Section 107 (Fair Use). Licenseagreements may constrict or augment the rights of libraries to share materials aspart of ILL arrangements. Nevertheless, Section 108 is a leading legal support for the reproduction and distribution of copyrighted works in ILL.RLI 275 15JUNE 2011 RESEARCH L IBRARY ISSUES:  A QUARTERLY REPORT FROM ARL,  CNI ,  AND SPARCStatus of the CONTU GuidelinesMany libraries rely on the 1978 guidelines issued by the Commission on NewTechnological Uses of Copyrighted Works (CONTU)—specifically, the “Rule of Five”2—to provide a framework for complying with Section 108(g)(2), whichcould bar libraries from using ILL arrangements as a “substitute for a subscriptionto or purchase of” copyrighted works. While CONTU and the Rule of Five canbe helpful for libraries in establishing procedures for ILL, they are onlyguidelines and do not have the full force and effect of the law. Indeed, theConference Report on the 1976 Copyright Act, which endorsed the guidelines,also acknowledged that they “are not intended to be limiting or determinative in themselves or with respect to other situations, and that they deal with anevolving situation that will undoubtedly require their continuous reevaluationand adjustment.”3 In short, CONTU is not the law, and Congress and theCONTU drafters agreed that the law allows more than CONTU contemplates.Responsibilities of US LibrariesLibraries that make and supply copies in an ILL arrangement generally look forconfirmation from any requesting library that it is acting within the limits ofSection 108. The fulfilling library as a practical matter relies on the good faith of the requesting library in order to assure that its services are within the scope ofthe law. In a typical ILL transaction, a requesting library seeks a copy from a fulfilling library of a work that is in the fulfilling library’s collection. Therequesting library is in the best position to know whether making the copysatisfies a statutory exception (e.g., whether it is a “substitute for a subscriptionor purchase”), yet the fulfilling library may have possible liability exposure(because it makes and distributes copies). Therefore, while the fulfilling librarycan watch for red flags that indicate bad faith, it must typically rely onrequesting libraries’ representations that all ILL requests are legitimate.Because the Berne Convention and other international copyright agreements do not specify any standards for ILL, nations have considerable discretion aboutthe terms of allowable reproduction and distribution, or even whether to allow ILLactivities at all. As a result, the law on such matters varies greatly from one countryto the next. In the context of a request from a foreign library, a US library thatfulfills the request is still making the copy in the US and therefore is subject to US law. The fulfilling library accordingly may still want assurances from foreignpartners that can help the US library determine whether the services may run afoulRLI 275 16White Paper: US Law and International Interlibrary Loan( C O N T I N U E D )JUNE 2011 RESEARCH L IBRARY ISSUES:  A QUARTERLY REPORT FROM ARL,  CNI ,  AND SPARCof US law. While foreign institutions may not be bound by the same legal rules asUS libraries, there are many ways a fulfilling library can be assured that its foreignpartners’ requests are legitimate. Sources of assurance include shared librarypractices as well as formal commitments and representations from foreign partners.The proper scope and function of ILL are embedded in well-establishedpractices that have been openly integrated into professional standards and havebeen widely known to and acknowledged by authors, publishers, and others foryears. Grounded in practical concerns as well as respect for copyright, thesepractices support the use of ILL ordinarily only for materials the requestinglibrary would not otherwise license or purchase. ILL is typically an inefficientsubstitute for purchase or subscription where the latter is truly justified, and tothe extent that it prevents a library from acquiring relevant materials for its owncollection, abuse of ILL undermines library mission. Quite simply, a highvolume of ILL requests for a particular item is a reliable signal of scholarlyinterest that should lead a research library to acquire the item for its owncollection. For these reasons, academic and research libraries that follow bestpractices will not engage in abuse of an ILL arrangement, regardless ofvariations in technical legal regimes.Fulfilling libraries also obtain assurances from international partners byformal representation. For example, most ILL request forms contain a box thatrequesting libraries check to indicate that their request is in compliance with US copyright law or CONTU guidelines. US libraries have no reason to believeforeign partners misrepresent themselves on these forms, which accompanyeach ILL request. If there is any indication of confusion, it may be helpful toexplain to foreign ILL partners that US law bars domestic libraries fromreproduction and lending that violates Section 108 or is not within fair use, witha clear statement that these two provisions may apply. It may also help to makethe representations more explicit. For example, request forms could be changedto include verification similar to the following:This request is in compliance with US Copyright Law, includingeither Section 107 (fair use) or Section 108(g)(2), which providesthat requests will not be made “in such aggregate quantities as tosubstitute for a subscription to or purchase of such work.” Therequesting library represents that it complies with US law andthat receiving the copy will not violate the copyright, importa-tion, or other laws of the requesting library’s country.RLI 275 17White Paper: US Law and International Interlibrary Loan( C O N T I N U E D )JUNE 2011 RESEARCH L IBRARY ISSUES:  A QUARTERLY REPORT FROM ARL,  CNI ,  AND SPARCSuch a verification, incorporating the key language of 108(g)(2), wouldreduce the likelihood that a foreign partner would check a box withoutunderstanding its meaning. Requesting libraries can further support thelegitimacy of their requests by keeping records of requests. These procedurescan help ensure that the requesting library will be able to demonstrate that its requests over time have satisfied Section 108 or Section 107.The measures described above should be sufficient to provide domesticlibraries with the confidence they need to participate in an ILL system thatinvolves foreign institutions. With adequate assurances in place, a US librarymay engage in ILL arrangements with foreign institutions.1 Specifically, Section 108(d) allows for copying of certain materials by one library for the users ofanother library, and Section 108(g)(2) states, “…[N]othing in this clause prevents a library or archivesfrom participating in interlibrary arrangements that do not have, as their purpose or effect, that thelibrary or archives receiving such copies or phonorecords for distribution does so in such aggregatequantities as to substitute for a subscription to or purchase of such work.”2 The Rule of Five bars fulfilling requests by the same library within a single calendar year for morethan five articles from the previous five years’ worth of the same periodical. It also bars more than five requests for copies from any copyrighted non-periodical work during a calendar year. The rule is silent as to the treatment of articles more than five years old. It is also silent as to non-periodicalworks.3 Discussion of the CONTU guidelines appears in H.R. Rep. No. 94-1733 at 70-74 (1976) (Conf. Rep.). In reality, reevaluation and adjustment of the guidelines has not occurred.© 2011 Brandon Butler, Kenneth D. Crews, Donna Ferullo, Kevin L. SmithThis article is licensed under a Creative Commons Attribution-Noncommercial-Share Alike 3.0 United States License. To view a copy of this license, visit http://creativecommons.org/licenses/by-nc-sa/3.0/us/.To cite this article: Brandon Butler, Kenneth D. Crews, Donna Ferullo, andKevin L. Smith. “White Paper: US Law and International Interlibrary Loan.”Research Library Issues: A Quarterly Report from ARL, CNI, and SPARC, no. 275(June 2011): 15–18. http://publications.arl.org/rli275/.RLI 275 18White Paper: US Law and International Interlibrary Loan( C O N T I N U E D )JUNE 2011 RESEARCH L IBRARY ISSUES:  A QUARTERLY REPORT FROM ARL,  CNI ,  AND SPARC

White Paper: US Law and International Interlibrary Loan

https://kuscholarworks.ku.edu/bitstream/1808/24739/1/smith_interlibrary.pdf

White Paper: US Law and International Interlibrary Loan

Abstract

Similar works

Full text

Available Versions

KU ScholarWorks