Are there different rules that apply for interlibrary loan copying?
Yes, although these are not truly rules but are in the nature of guidelines or suggestions. In 1976 Congress appointed the National Commission on New Technological Uses of Copyrighted Works (CONTU) and asked it to prepare guidelines for library reproduction for interlibrary loan (ILL). The resulting CONTU ILL Guidelines were published as a Conference Report in House Report 94-1733. Under these Guidelines, each calendar year a library may request only five items from a journal title going back over the most recent 60 months of that journal. The borrowing library must maintain records of the number of times it borrows from each journal title, covering the most recent 60 months for each. These records must be retained for three calendar years.
When the library makes the sixth request from that title, it should then seek permission, pay royalties to the publisher, purchase the article from an authorized document delivery service, or pay royalties to the Copyright Clearance Center.
An interlibrary loan librarian in an academic library has received requests to photocopy a chapter instead of sending the book. If it is just a chapter from a book that the library owns, does the library own the copyright? Must the library pay copyright fees in order to supply the requested copy?
The library does not own the copyright just because it purchased a copy of the book; the author or publisher owns the copyright. Section 108(d) of the Copyright Act permits libraries to make single copies of articles, book chapters, and the like, at the request of a user if (1) the copy becomes the property of the user and (2) the library displays prominently a copyright warning where the orders are placed and on the order form. Even if the library must borrow copies of items requested by users from another library via ILL, it should still follow the sections 108(d) and (e) requirements.
Further, libraries may provide reproductions of the materials mentioned in sections 108(d) and (e) to borrowing libraries through ILL if the borrowing library makes the appropriate CONTU ILL Guidelines certifications. So, under these conditions, there is no problem with reproducing book chapters for ILL.
A faculty member has requested seven articles from volume 5, number 1, of a journal published in 2010, which constitutes the entire issue. The library has a current subscription to the journal, but it does not begin until volume 5, number 2. The library has tried to purchase the issue, but it is not available. May the library request the issue from another library and reproduce it or is the library restricted to one article from the issue as permitted under the Interlibrary Loan Guidelines? Could the library request all seven articles from different lenders and pay royalties on two articles that would exceed the ILL suggestion of five?
Unfortunately, this is not a replacement issue since the library never had volume 5, number 1, in its collection. Therefore, section 108(c) of the Copyright Act does not apply and give the library permission to copy the entire issue and add it to its collection.
The CONTU ILL Guidelines permit a library to request five items from the journal title during a calendar year, but section 108(d) still applies to the requests from an individual user. Since the library does have a current subscription to the journal it may request the items for the user, subject to the section 108(d) limitationone copy of a single article from a periodical issue. The ILL Guidelines say that the library does not count in its suggestion of five any item for which the requesting entity has "in force or shall have entered an order for a subscription to a periodical." So, royalties would be due for all but one of the articles requested through ILL under section 108(2) due to the limitation of one article per issue for a user without payment of royalties.
Another possibility is to use section 108(e), which permits libraries to reproduce a larger portion or even an entire work for a user. The copy would go to the user and the library still could not add a copy to its collection. The library would first have to try to buy the issue at a fair price for the faculty member to use, which the library has already done. The ILL Guidelines still apply, and royalties would be due for all but five articles in the issue under section 108(e) and the ILL Guidelines.
A patron requested an interlibrary loan of a 124-page article published in an e-journal that is on the web. The patron could not download or read the article in the 30-minute time limit that the library imposes on patrons using library computers. The library printed the first 20 pages for free and the patron paid for copying the remaining pages. Did the library violate the copyright law?
No, it did not. In fact, the library could have printed the entire 124 pages for the patron had it chosen to do so. Under section 108(d) of the Copyright Act, libraries are permitted to reproduce a single copy of an article from a periodical issue for a patron. If that article is available on the web with no license agreement, then printing or downloading that article for the patron is the same as reproducing from a printed journal, and is no problem. Whether the library charges the patron for the cost of printing or photocopying is up the individual library and has nothing to do with copyright. This assumes, however, that the fee represents cost recovery only.
The libraries in XCorporation want to harmonize the way they maintain interlibrary loan records. Corporate counsel has advised that only loans between the corporation and outside libraries are defined as interlibrary loans. Further, librarians have been told that it is not necessary to keep records of photocopies obtained from any of the thirteen libraries that make up the corporation as these are covered by its Copyright Clearance Center license agreement. The same instruction was provided as to not keeping any records of photocopies obtained from an outside, for-profit photocopy vendor. Complicating this issue is the fact that some of these libraries work with vendors that send itemize bills showing separate copyright payments, while other libraries work with a vendor that has sent a letter saying that it will pay the royalties to the CCC. So, is it necessary to keep interlibrary loan records?
Corporate counsel is correct. The only records that must be maintained are those for ILL for which none of the X Corporation libraries pays royalties, that is, from libraries external to X Corporation libraries, that is, true interlibrary lending. If the copies come from a vendor that pays the royalties, no records are necessary. This activity is document delivery and not ILL, and royalties are paid. Only authorized document delivery services that pay the royalties for the copies should be used or the corporation will need to pay for those copies directly to the publisher or through the CCC.
If one of the libraries obtains a photocopy from a university library, then that is an ILL. If the corporation pays royalties for all ILL also, then no records are required, but libraries may want to do so to provide documentation of that compliance, but it is a corporate decision. As legal counsel suggests, providing reproductions to other libraries within the corporation is not ILL. In fact, these are "intra" library or "intra" corporation loans, and sections 108(d) and (e) of the Copyright Act apply, not the ILL Guidelines.
