Copyright for Librarians

Provisions within copyright law for interlibrary loan 

Section 108 (d) (e) & (g) attempts to balance the interests of publishers and libraries regarding interlibrary loan (ILL) arrangements. ILL is a critical tool for researchers to have access to the content they need, as not even the most well-resourced library can afford to subscribe to or purchase all the materials needed for their patrons.  

Members of the National Commission on New Technological Uses of Copyrighted Works (CONTU) negotiated guidelines based on the 1976 Copyright Act that described what amounts of copying would substitute for a subscription to or purchase of a work. The CONTU Guidelines were based on the economics of scholarly publishing in the 1970s, but many librarians now feel they are quite outdated, especially as subscription costs have risen above the rate of inflation for decades now. 

Instead of focusing on the CONTU Guidelines, we’ll discuss the actual text of Section 108 as it relates to ILL and how libraries can comply with the law. Our discussion will also focus on the making of copies, as lending and borrowing of physical items is covered by Section 109 (a) (first sale).  

The library may be either a requestor (borrowing) or responder (lending) in the ILL context. Requestors are responsible for compliance with copyright law. Responders only have to ask whether the requestor has complied with copyright law. 

Borrowing libraries should review the language of Section 108 (g) (2) and Section 107 (fair use) to determine whether their borrowing is within the scope of the law. Borrowing and lending libraries should review any licensing agreements they have in place and make sure those agreements don’t require them to comply with the CONTU Guidelines or limit their rights under Section 107 (fair use). 

Requesting a copy of an entire book: 

Note - Keep in mind this refers only to copyrighted books. Public domain books may be reused without restriction.

As the borrowing party, the library must comply with the requirements in Sections 108 (e) & (g): 

• Determine a copy cannot be obtained at a fair price; 
• The copy must become the property of the patron; 
• The library should have no notice that the copy will be used for a purpose other than private study, scholarship, or research; 
• The library should both display and have on its order form a “Warning of Copyright”; 
• The library must not be aware or have substantial reason to believe its engaging in related or concerted reproduction or distribution of multiple copies of the same material; 
• The borrowing should not be in such aggregate quantities as to substitute for a subscription to or purchase of the work. 

Requesting a copy of an article from a journal issue or a small part of another work: 

Note: Keep in mind this refers only to copyrighted works. Public domain materials may be reused without restriction.

As the borrowing party, the library must comply with the requirements in Sections 108 (d) & (g): 

• The copy must become the property of the patron; 
• The library should have no notice that the copy will be used for a purpose other than private study, scholarship, or research; 
• The library should both display and have on its order form a “Warning of Copyright”; 
• The library must not be aware or have substantial reason to believe its engaging in related or concerted reproduction or distribution of multiple copies of the same material; 
• The borrowing should not be in such aggregate quantities as to substitute for a subscription to or purchase of the work. 

When a library feels its use would exceed the scope of Sections 108 and 107, they can obtain the articles directly from the publisher or pay copyright fees to license providers. Here are some things a library could consider when determining whether a subscription or payment of royalties may be necessary: 

• Number of borrowing articles from a particular title, especially as it relates to overall trends; 
• Number of patrons making those requests. This tries to distinguish between an individual research project and overall growth in a particular discipline; 
• Patterns of requests over time; 
• Subscription prices and licensing prices as they relate to usage; 
• Patron recommendations for purchase/subscription; 
• Publisher provided data on turnaways or rejections. 

Legislation 

Section 108 was modified in 1998 by provisions in the Digital Millennium Copyright Act ("DMCA") and the Sony Bono Copyright Term Extension Act ("SBCTEA"). Although neither of these Acts changed subsection (g), the part of Section 108 that specifically authorizes ILL activities, they did affect ILL indirectly.  

The DMCA and SBCTEA changes affect ILL as follows: 

• The new copyright notice requirement in subsection (a) applies to any copies made, including those for ILL; 
• The new section (h) that creates a limited exemption from the SBCTEA's 20-year term extension permits copies to be made and distributed for scholarship or research purposes, so long as the work to be copied is not being commercially exploited at the time. 

The new copyright notice requirement requires libraries to reproduce any copyright notice that appears on the work, and if there is none, to include a notice similar to those libraries have used before the law changed. 

The limited exemption from SBCTEA's 20-year term extension applies only in the last 20 years of protection for published works and the new subsection (h) that implements the exemption details the conditions for exercising it. It appears to provide rights unrestrained by the part of subsection (g) that prohibits systematic copying that substitutes for subscription to or purchase of a work, because that section's proscription only applies to copies made pursuant to subsection (d) (parts of a work copied in response to a patron's request). Subsection (h) appears to provide rights free of all of the other restrictions of the Section, except the restrictions in the first subsection that establish qualifications for relying on Section 108 rights.