If a library is the only one in the region that has a license for a full-text journal, what is the library's responsibility to fill interlibrary loan requests from that journal by making a copy for requesting libraries?

Under copyright, a library has no responsibility to fill an interlibrary loan (ILL) request at all. There may be other interlibrary agreements that require libraries to respond to ILL requests generally, but online journals are governed by license agreements that may restrict a library's ability to lend copies of articles from that journal to other libraries. Section 108(f)(4) of the Copyright Act states that nothing affects license agreements to which the library agreed when it acquired access to a work in its collection. Thus, license agreements trump copyrights. Some vendors will permit ILL from their online journals while some exclude it. Other vendors allow limited ILL but may require the lending library to maintain records of how often it lends from the title rather than the borrowing library as the ILL guidelines dictate. The license agreement controls and supersedes any ILL agreements among libraries.

An institution has an online subscription to a journal but not to the print version, and there is a 12-month embargo before issues appear in the online product. For interlibrary loan purposes, does the library "own" those issues that have not yet appeared online, or must it pay royalties for articles acquired via interlibrary loan from that journal during the embargo period?

The CONTU Interlibrary Loan (ILL) Guidelines were written in 1976 and naturally did not envision this situation. ILL assumes that the borrowing library is obtaining materials that will be lent (they are original volumes) or given to the patron if the copies are photocopies or other reproductions of the copyrighted works. The Guidelines indicate that if the library has the title on order or owns the work but it is missing from the collection, an ILL request need not be counted in the suggestion of five and would not generate the need to pay royalties. In this situation, however, the library neither owns the work nor has a subscription to it; instead, the subscription is for 12 months hence and not for the current material. Therefore, the library must count ILL requests for articles in the embargoed issues within its suggestion of five and pay royalties when it exceeds the suggestion of five.

In a law firm, the medical malpractice group relies upon medical articles from experts and asks the library to provide copies. The library orders articles from a document supplier that pays copyright royalties and charges them to the firm as a part of its fee. Sometimes, an article ordered for one case might also be useful in another pending case. The lawyers and nurses who work with the articles would like to keep the original in the first case file, and make another copy for the second case file. May a second copy be made for a new specific case? Or does the library need to request a new copy each time one is needed?

When a library obtains a copy of an article from a document delivery service and pays the royalties for that copy, the library may use that copy for multiple purposes such as for multiple pending cases. Use and reproduction are not the same thing, however. Reproducing that article for another case file means that additional royalties should be paid for the second copy since the firm lawfully acquired only one copy of the article and paid royalties for that copy. Multiple reading and multiple copying are two different things.

More and more frequently the library is being asked to reproduce a whole journal for document delivery. Is there any reason not to do this?

There certainly are reasons not to reproduce entire journal issues for document delivery. The first question is what is meant by "document delivery." Does this mean delivery of copies to primary patrons who are part of the same organization? If the journal issue is a printed journal, and the library does not have a Copyright Clearance Center Annual Copyright License, then the library may reproduce only one article from the journal issue to deliver to a patron under section 108(d) of the Copyright Act, unless it pays royalties for all articles except one in the issue. If the journal subscription is electronic, the license agreement prevails and controls whether copying entire issues for persons covered under the agreement is permitted under the license.

If, on the other hand, document delivery means supplying copies to an outside entity that pays royalties for the reproductions, then there is no problem. If document delivery means interlibrary loan, then the CONTU Interlibrary Loan Guidelines apply.

The staff in a health sciences library regularly supplies copies of articles from journals in its collection to unaffiliated customers for a fee. These customers include lawyers, researchers, and community health professionals. The library also fills requests from members of the general public for copies of library documents that are listed in a locally produced health bibliographic database. The library is considering charging a fee for copies of these documents that are not available online. (1) Do these activities make the library a commercial document delivery service? (2) Does it have to pay royalties anyway? (3) Is there a standard cost recovery formula? (4) If so, does it make any difference that publishers can now provide the same service to users for a fee?

(1) The real question is whether the fee that the library charges is cost recovery only or whether the library makes a profit by providing these copies. If the fee is cost recovery only for the service (e.g., personnel costs, mailing, and copy costs, but not cost of the collections), then the library is not a commercial service.

(2) If that fee is greater than the cost to provide the service, then it is for profit. In that situation, the library is a for-profit center and must pay royalties for providing all of these copies. If the library's document delivery is not for profit, and the library is not paying royalties, it may want to stamp the copies it provides to indicate that if royalties are due, the recipient of the copies is responsible for them. Often users assume that the service fee covers the royalties, so it is good to clarify that the service fee does not include the royalties.

(3) There is no known standard cost recovery formula. The library may charge whatever fee it wants for the service. For example, if the library wants to discourage the request for copies, it may charge a fairly high fee, which may result in the library having to pay royalties.

(4) The fact that publishers can provide the same service and copies is irrelevant. Publishers are concerned that commercial document delivery services (ones that make a profit) actually pay royalties, of course.