COPYRIGHT AND INTERLIBRARY LOAN
Interlibrary loan (ILL) staff must know certain basics concerning copyright. Knowledge of the three documents listed below is necessary in order for you to handle ILL copying requests responsibly. The first two documents have been and will continue to be inportant when obtaining copies for your users or for the library. The third document, the DMCA, addresses certain developments in the area of electronic sources which came after the first two documents were in place. It remains to be seen how much and what kind of impact the DMCA will eventually have on ILL:
Copyright Act of 1976. This law (Title 17, U.S. Code) went into effect on January 1, 1978 and is the basis for a large part of how libraries deal with copyright issues, including ILL.
See http://www.copyright.gov/title17/circ92.pdf
CONTU Guidelines. The full title of this document is the Final Report of the National Commission on New Technology Uses of Copyrighted Works. These guidelines were formulated by a special committee in 1976 in an attempt to clarify how libraries, and especially Interlibrary Loan, would handle copying according to the 1976 Copyright Act. See Chapter 4 for the “five in five/suggestion of five” rule and keep in mind that the CONTU Guidelines are guidelines, not laws.
See http://digital-law-online.info/CONTU/contu24.html
DMCA or Digital Millennium Copyright Act. This law was passed in 1998 to address copyright issues growing from technologies and resources such as the Internet, electronic files, and CDs and DVDs which appeared after the 1976 Act was passed.
See http://www.copyright.gov/legislation/dmca.pdf
There are no cut-and-dried answers to almost anything concerning the copyright law. Even issues which go to trial are usually appealed to a higher court and can take years to decide. The intention in this entry is to give you the vocabulary and some key concepts you must know when working with interlibrary loan requests for copies. What follows are several bare-bones, basic, hints to help you understand the law as it applies to interlibrary loan.
WHAT IS COPYRIGHT? Copyright is “a form of protection provided by the laws of the United States (title 17, U.S. Code) to the authors of “original works of authorship” including literary, dramatic, musical, artistic, and certain other intellectual works.” Copyright was originally conceived to protect the author. Today, most authors of articles sign over their copyright to their publisher, whose aim it is to make money. Interlibrary loan must aim to find the balance between protecting the author’s rights and protecting libraries from being sued by the publishers for infringement.
WHERE IS OUR COPYRIGHT LAW FOUND? Look for the Copyright Act of 1976, 17 U.S.C. 101 et seq. (effective 1/1/78) in U.S. Government Documents (also the website given above). The law is fairly lengthy, divided into eight chapters. The first chapter, however, (consisting of eighteen sections) is most relevant to interlibrary loan activities, with Sections 107 and 108 being probably the most relevant for immediate ILL needs.
WHAT IS “FAIR USE” Section 107 codifies, i.e. makes it a part of the law, the concept of “fair use.” The four doctrines which determine “fair use” are:
1. purpose of use (commercial or nonprofit educational)
2. nature of the work
3. amount or portion used , in relation to the work as a whole
4. effect on the potential market
The above concepts are important because they are guidelines for you in determining whether you can ask another library to copy something without violating copyright. Keep in mind that “fair use” for an individual is more liberal than “fair use” as it applies to ILL copying.
WHAT DOES “CONTU” MEAN? When the Copyright Act of 1976 was passed, the wording of Section 108 (g) caused some alarm among the interlibrary loan community. This section allows libraries to participate in ILL as long as the “aggregate quantities” of articles received on ILL do not substitute for a subscription or purchase of the work. The problem is: What is an “aggregate quantity?” The lack of clarity in this issue (and others) led to formation of a commission called the National Commission on New Technological Uses of Copyrighted Works, or CONTU whose membership was composed of librarians and publishers. There was subsequently issued a document containing guidelines for ILL, commonly referred to as the CONTU Guidelines. The commission tried to clarify the ILL photocopying issue, most notably by deciding what has come to be known as the “suggestion of five” or “five in five” rule.
WHAT ARE THE “CONTU GUIDELINES?” A set of suggestions formulated by the above Commission to aid interlibrary loan personnel in obtaining material without blatantly violating copyright; these guidelines generally apply to periodical material and cover titles (not individual issues) published within five years from the date of the ILL request. These guidelines, broadly stated here cover:
- Permission to receive five articles from periodical titles not owned by your library, excluding titles that are more than five years old. This is often referred to as the“ five-in-five rule,” the “rule of five, “or the“suggestion of five”
- Permission to order copies of articles that are not covered by the “rule of five” if such titles are on order or are not on the shelf, are missing, or are at the bindery
- The need to indicate conformity to the guidelines by indicating “ccg” or “ccl” (see below for definitions)
- The need to keep records
- The need to review the guidelines not later than five years from the effective date
The CONTU guidelines are only guidelines, not the law. However, all interlibrary loan operations in this country follow the CONTU guidelines, because they provide the most concrete guide we have in trying to stay within the law and still practice fair use. Although the borrowing and the lending library should both be aware of what and how much copying is being done, the burden of responsibility for following copyright guidelines is on the BORROWING library. Thus the borrowing library keeps records on articles ordered with the designation “ccg” (see below “What kinds of records do I have to keep?”).
WHAT IS THE “FIVE IN FIVE” RULE (Also called the “Suggestion of five” rule)? This concerns titles which your library does not own. CONTU decided that no more than five articles from the same title within the last five years is a fair amount that a library can ask for without copyright infringement. If the current year is 2007, then you should consider, besides 2007:
2006
2005 {five articles, total, from a single journal
2004 title from these volume years}
2003
2002
The time limit could better be described as the “last 60 months” rather than the “last five years. This may work to your advantage, because you could count, for example, from October 2007, only back to October 2002; thus articles you obtain from 2002 issues which fell between January and September would not count in your “quota.” The copyright law itself states that no more than one article per issue is permissible without possible copyright infringement. There are cases, though, when you can get more than one article from a single issue. There are also cases when you may get more than five articles from the same title within the last five years.
WHAT IS CCG AND CCL?
§ CCG means “conforms to copyright guidelines.”
§ CCL means “conforms to copyright law”
Boxes labelled “ccg” and “ccl” should be found on all interlibrary request forms. If you are requesting that another library copy something for you, you should mark EITHER “ccg “OR “ccl,” but not both, on the form.
.
HOW DO I KNOW WHEN TO USE CCG ? CCL?
CCG usually applies to articles from periodical literature your library does not own (magazines, journals, newspapers) published within the last five years.
CCL usually applies to other types of copying such as articles older than five years, a chapter from a book, a paper from a proceedings, material in the public domain such as government documents, or replacement pages from a title you already own .
NOTE: Sometimes you have to simply decide, according to circumstances, whether you think “ccg” or “ccl” applies. This is why it is important for you to read Section 107 and 108 of the law and the CONTU guidelines yourself.
WHAT CAN I DO IF MY USER WANTS MANY, MANY ARTICLES FROM THE SAME TITLE? FROM THE SAME ISSUE? Remember that the law does not say that you can only get five articles from a title within the last five years; the CONTU Guidelines suggest that after the fifth article you should either see if “fair use” applies or pay a royalty. So, first check the range of dates needed. If titles fall outside the “five in five” range, you generally do not have to count them in your yearly tally. Can you try borrowing the whole issue? Try giving the articles the “fair use” test. For articles within the “five in five” range, you might either go to a commercial document supplier such as the British Library, CAS, or CISTI which will include the royalty payment in their fee, or you could get the article from another library and pay the royalty fee yourself through the Copyright Clearance Center (http://www.copyright.com). If you have enough time, you could contact the publisher, either to see if they can sell back issues to your patron, or you can ask the publisher for written permission to copy the articles needed. Going over the “five in five” limit does not mean that you cannot get all the articles your user needs—it means that you may need to figure in an often hefty royalty fee, if your user really, truly, wants them all!
WHAT IS THE “NOTICE OF COPYRIGHT?” For you as a lender, Section 108 (a) (3) stipulates that the “reproduction or distribution of the work includes a notice of copyright.” Language of this notice is not specified. However, the American Library Association recommends that the following statement be affixed to the photocopy “Notice: This material may be protected by copyright law (Title 17 U.S. Code).” You should see that this notice is on all photocopies you send out to fill requests from other libraries. Some electronic delivery systems, such as Ariel, have such wording programmed to appear on the accompanying cover page. The wording for this is not affixed by law, but ALA has provided guidelines.
WHAT IS THE “COPYRIGHT WARNING?” For you as a borrower, Section 108 (d) (2) requires prominent display where copying orders are accepted (including ILL requests for articles), and inclusion on the order form a “warning of copyright in accordance with requirements that the Register of Copyrights shall prescribe by regulation” (See Appendix D for the text that the Register specifies). You should see that this warning is on all requests forms for photocopies that your patron fills out. Most electronic forms will only let the patron get to a certain point until they click on an acknowledgement that they have read they copyright warning. See page 20 of the U.S. Copyright Office’s Circular 21, Reproduction of Copyrighted Works by Educators and Librarians.
WHAT KINDS OF RECORDS DO I HAVE TO KEEP? The CONTU guidelines stipulate that as a borrower, you must keep records, accessible by title, for photocopy requests to which the CONTU guidelines apply (i.e. the “ccg’s”). These records “shall be retained until the end of the third complete calendar year after the end of the calendar year in which the respective request shall have been made.” In other words, keep this year’s requests, plus the past three years. Lenders do not have to keep files, nor actively police another library’s requests if copyright compliance is indicated. However, the lender can refuse to do any copying if there is no copyright compliance at all on a request for a photocopy.
WHAT CAN I DO IF MY LIBRARY NEEDS TO REPLACE PAGES OF AN ARTICLE RIPPED OUT OF ONE OF OUR PERIODICALS?
You are within the law to ask for replacement pages.
WHAT IF WE NEVER RECEIVED A CERTAIN ISSUE OF A PERIODICAL? If you have tried to claim an issue and have been told by the publisher that no more copies are available, you may ask another library to copy the entire issue for you.
WHAT ABOUT COPYING FROM GOVERNMENT DOCUMENTS?
U.S. government documents are generally in the public domain and therefore can be copied in their entirety. ERIC documents fall under this category since they are produced by the federal government. State documents may possibly be copyrighted; this varies from state to state,so checking is in order.
HOW DOES THE DMCA FIT INTO INTERLIBRARY LOAN?
Since the 1990’s, most libraries have obtained either access to or ownership of electronic resources--e-serials, e-books, CDs, or DVDs. The DMCA deals with protecting such works from circumvention of copy prevention systems (i.e. you cannot make a copy of a commercially produced CD or DVD to give to another library). The DMCA has also magnified the fact that when a library purchases an electronic resource or signs a contract with a provider of electronic resources, that contract law overrides fair use as provided in the Copyright Act of 1976. This means that just because your library has access to an electronic journal, you may or may not be able to copy articles from it for other libraries. The ability to copy articles from an electronic database depends on what your library's particular contract stipulates as permissible. These contracts are negotiated either individually or on a consortial basis, so interlibrary loan staff must check to see what your institution’s contract says about copying, because it could be different from another library’s even though located in the same city. ERMS (electronic resource management systems) have been developed by various software providers so that your library can manage information connected to electronic titles; one piece of information your ERMS should contain is whether ILL copying of an individual title is allowed. This helps facilitate ILLs workflow since ILL staff can quickly check a table without plowing through a whole contract trying to locate this vital information.
DOES IT MATTER WHAT KIND OF LIBRARY I WORK FOR (PUBLIC, ACADEMIC, SPECIAL)? See Section 108 (a) (1) and 108 (a) (2). Generally, public libraries, school libraries, and academic libraries meet the criteria of “nonprofit” and “open or available to the public” described in these sections. If you work in a special library (law firm, corporate library, etc.) the situation is trickier and you may feel safer in consistently paying royalties for articles. One of the first big lawsuits involving copyright was with Texaco, whose librarian was consistently making multiple copies of a subscribed-to newsletter and distributing the copies among staff. Since Texaco is a for-profit organization, the courts initially ruled that Texaco was violating copyright because all copies Texaco would use could have direct or indirect commercial advantage.
Selected Bibliography:
American Library Association. Comments of the American Library Association on the Report of the Register of Copyrights to Congress: Library Reproduction of Copyrighted Works (17 U.S.C. 108) Washington, DC: ALA, 1983
Boucher, Virginia. Interlibrary Loan Practices Handbook. Chicago: ALA, 1997
Bruwelheide, Janis. The Copyright Primer for Librarians and Educations. ALA, 1995
Crews, Kenneth. . Copyright essentials for librarians and educators. ALA, 2000
Dukelow, Ruth H. The Library Copyright Guide. Washington, D.C.: Copyright Information Services, 1992.
Gasaway, Laura N. Libraries and Copyright: A Guide to Copyright Law in the 1990’s.
Washington, DC: Special Libraries Association, 1994.
OCLC. Interlibrary Loan User Guide. Dublin, Ohio: OCLC Online Computer Library Center, 1992.
Useful Addresses:
American Library Association
50 E. Huron St.
Chicago, IL 60611
Tel 800-545-2433
Copyright Clearance Center
222 Rosewood Drive
Danvers, Ma 01923
Tel 978-750-8400
Government Printing Office
732 N Capitol St. N.W.
Washington, DC 20401
Info 202-512-1991
SOLINET
1438 W. Peachtree Street, N.W.
Suite 200
Atlanta, GA 30309-2955
Tel 800-999-8558
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