Should a public library include a copyright notice on all copies of articles it provides to satisfy interlibrary loan requests?

Yes. Section 108(a) of the Copyright Act says that, in order to qualify for the exceptions provided in all of section 108, one of the requirements is to include a notice of copyright on copies made. If the library has licensed journal databases, then the license dictates (1) whether the library may use an article from the database to satisfy an ILL request and (2) whether the library must include a notice of copyright on copies it provides for ILL. Typically, the copyright notice appears automatically on copies from licensed databases, however.

A university library has provided interlibrary loan (ILL) services to a small nonprofit institution and has done so since 2002 through a contract. The smaller school has its own library staffed by a librarian and one other staff member. The contract requires that the university library provide ILL services directly to students at the smaller institution, presumably based on an annual payment. How does this contract affect the ILL Guidelines and the suggestion of five? Must either the university library or the smaller college library pay royalties on copies provided?

The contract to provide ILL services does not change any responsibilities under the Copyright Act or under the CONTU ILL Guidelines. The Guidelines apply, and either the university, as the lending library, or the smaller institution, as the borrowing library, must maintain the ILL records and follow the suggestion of five. Typically, the borrowing library would do this. Under the contract, however, the university library may have assumed the recordkeeping function for the smaller school. The university library may have contracted to charge a higher fee for services, keep the records of these transactions for the borrowing library, and pay the royalties for copies beyond those that are fair use. Or, it may put the responsibility on the borrowing library. One or the other must do it, though.

In keeping with the copyright law, an academic library gets an interlibrary loan request to copy more than one article from the same journal issue. It copies only one article and sends the other requests back unfilled, explaining the copyright law to the borrowing library. A borrowing library insists this is incorrect and that if it (the requesting library) is paying copyright royalties, then the lending library should copy for them whatever they ask. Which library is correct?

The borrowing library is correct in this instance. Section 108 of the Copyright Act is written so that a library does not have to pay royalties. If interlibrary loan (ILL) copying goes beyond the CONTU ILL Guidelines, then the library should seek permission and pay royalties, if requested. Here, the borrowing library is paying royalties, so the library is not limited to the section 108(d) one article per user per issue restriction. Moreover, the one article restriction applies to an individual user, not a library borrowing for users. In fact, the library may have multiple requests from the same journal title from different users, which results in the request for more than one article from a periodical issue. It is the borrowing library that is responsible for enforcing the one article per issue for a user, or for paying royalties in order to provide more than one article per issue to a single user. The suggestion of five from the CONTU ILL Guidelines applies only to the borrowing library.

One of the library's requests for an interlibrary loan photocopy of a 1999 article was referred on to an association library. That library refused to copy the article, saying that it would violate copyright. A librarian at the association explained that it refused to copy more than one article from the same journal title if the requesting library has made previous requests from that journal in the past five years. Is this not a misinterpretation of the CONTU Interlibrary Loan Guidelines?

The association has it wrong, and it appears to be confusing section 108(d) of the Copyright Act with the CONTU ILL Guidelines. Section 108(d) deals with the borrowing library in the ILL situation; it states that the local library cannot copy for a user (meaning an individual, not a library) more than one article from a journal issue without paying royalties.

For ILL, a library may borrow five articles a year from the journal title. The requests can even be for the same article five times, for five separate users, but section 108(d) still applies to the ILL request from a particular user. The lender does not need to maintain records; however, the borrowing library does. It is the responsibility of the borrowing library to conform to the Guidelines. All the lender need do is to require that the borrower certify that it is conforming to the ILL Guidelines or that the request is a fair use, a replacement copy, or the like.

In fact, the borrowing library may even borrow more than the five articles from a journal title within the calendar year as long as it seeks permission or pays royalties. As described earlier, the borrowing library may not even be in this situation since the lending library apparently is misapplying the ILL Guidelines concerning five requests from a title within a calendar year over the most recent five years of the journal.

A library does not subscribe to a particular journal in either paper or electronic format. It used its "suggestion of five" from the CONTU Guidelines for calendar year 2011. The serial title is listed in the Copyright Clearance Center (CCC) with a royalty of $25 per article plus $2.25per page. The library has recently discovered that the journal is freely available on the web back to 2003. Does it need to pay copyright royalties for interlibrary loan copies under the CONTU Guidelines or may it use the article from the web to satisfy patron requests?

There is no reason to request the article through interlibrary loan if the free web copy was placed online by the copyright owner or with the owner's permission. If the issues were put on the web by someone else, then these are infringing copies should not be used.

The library recently acquired some additional volumes of a journal to which it no longer subscribes. These volumes cover years missing from the library's holdings of this title and were obtained from a library that has merged with another library, meaning that at the time that they were acquired, a valid subscription was maintained. May the acquiring library use the donated volumes for interlibrary loan?

Yes. The first sale doctrine found in section 109(a) of the Copyright Act permits libraries to use gift volumes that were originally acquired by a library at the institutional subscription rate (if that rate is different than the subscription rate for an individual). The library may add the gifts to its collection and use them as if they were purchased volumes. This would include using them to fill interlibrary loan requests.

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