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CONFU Interlibrary Loan Working Group Summary of Discussions Held March 27, 1996 |
Nearly 25 individuals representing libraries, publishers, and scholars attended the Working Group meeting held at the Library of Congress on March 27, 1996. The proposed agenda focused on digital materials, but several participants noted that there was still interest in the issue of digital scanning of print materials. Most of the morning's discussion centered around descriptions of publishing and ILL processes. Barbara Polansky summarized the initiatives of the American Chemical Society as one example of new electronic publishing opportunities. Mary Jackson gave a lengthy description of current interlibrary loan activities, citing a number of statistics and describing the process from the perspective of a requesting library and the supplying library. A few statistics include:
Doug Bennett offered the following question/statement as a framework to begin the afternoon discussion and noted that the question contains many elements on which agreement must be reached: What is the legitimate use of digital technology for library to library sharing of individual items in response to specific requests of library patrons in situations not well served in availability, time, or fair-price by direct sale or license in a fashion that protects against inappropriate retransmission by either the library or the library patron?
Several concerns were expressed with elements of the statement, including a legal problem discussing price and a concern about technology. Jon Baumgarten drew a close to that discussion by proposing that it is premature to develop ILL guidelines for materials originating in digital/electronic format. He stated that fair use applies in a digital environment, but he was not prepared to define it at this point. After a poll of all present, the Working Group unanimously agreed with Jon's proposal. This decision will be shared with CONFU participants at the May 30, 1996 meeting.
Jon and Carol Risher then raised the possibility of using the next meeting to focus on digital transmission of print originals and listed several possible criteria for discussion topics. Jon agrees that fair use does cover print-to-digital but suggested that certain types of activities may not be covered by fair use, such as fee-based document delivery services. Jon also raised the possibilities of placing restrictions on the supplying library, prohibiting libraries from supplying materials to businesses, and having the supplying library quiz the requesting library on the purposes of the use of the supplied item. These are examples of the topics that could be discussed. Doug Bennett offered a second option, that to hold a one-day symposium on interlibrary loan, building on the morning discussion. Sensing less of an interest in the symposium option, most participants favored the discussion on digital transmission. Jon Baumgarten offered to develop a discussion document, after receiving approval from his clients.
For further information, please contact:
Mary Jackson
Access & Delivery Services Consultant
Association of Research Libraries
202/296-2296 tel /202/872-0884 fax
mary@cni.org
Memorandum
May 1, 1996
| TO: | CONFU Working Group on ILL |
| FROM: | Jon Baumgarten and Carol Risher |
| RE: | Guidelines for Interlibrary Loan and Document Delivery |
It was agreed among all participants at the last meeting of the ILL Working Group that it is premature to attempt to draft guidelines for interlibrary resource sharing of digital originals but that we would continue the discussions and consider guidelines for digital copying and delivery of print originals. We would also like to discuss and possibly reach agreement on some libraries and services that we understand the library community to agree are outside the scope of the Section 108 privileges for traditional print delivery including by photocopy and traditional fax machines (i.e., libraries that use document delivery as a revenue generating activity).
We believe that the May 3 discussion can prove fruitful if we address the issues of qualifying libraries, qualifying technologies, and qualifying practices.
More specifically, we would like to explore the following:
Libraries Ineligible for Section 108 Privileges:
Technologies that are not permitted for either sending or receiving digital delivery of printed copyrighted works under Section 108
| To:
From: Date: |
Copyright
Holder Representatives to the CONFU ILL Working Group
Library/Educator Representatives to the CONFU ILL Working Group 16 August 1996 |
No library can afford to build collections that are so comprehensive that the library is self-sufficient. Responsible use of library materials budgets targets acquisition of materials anticipated to be of highest use for local patrons. Interlibrary loan (ILL) is a service in which libraries request items (books or photocopies) used less often. The requesting library initiates ILL requests on behalf of its patrons so long as the library does not have as its primary purpose and effect the receipt of such aggregate quantities as to substitute for a subscription to or purchase of a work.
Since 1978 interlibrary loan has been guided by Sections 107 and 108 of the Copyright Act and the related CONTU Guidelines. The last Five-Year Review confirmed that the law and the Guidelines were working and that no further review was necessary.
Although the number of ILL transactions has increased in absolute numbers since 1978, ILL transactions still represent only about 2% of circulation transactions in research libraries. The percentage might vary somewhat in other types of libraries. All libraries have developed detailed methods for adhering to the law and the CONTU Guidelines. The CONTU Guidelines permit a borrowing library to receive in a calendar year five articles from the most recent five years of a specific journal title. If a library reaches the "suggestion of five" yet receives additional requests for recent articles from that journal title, ILL staff have a number of options from which to choose, all of which ensure that those requests are in compliance. Some of the options are detailed in our response to the May 1, 1996 Baumgarten/Risher memo.
Librarians comply with the Copyright Act of 1976 and reaffirm the applicability of the CONTU Guidelines for the digital environment. Sections 107 and 108 and the CONTU Guidelines provide sufficient protection for copyright holders in the print environment and will provide equally sufficient protection as we move into the digital environment. Because there is no evidence to suggest otherwise, librarians and copyright holders alike must not assume that there will be violations of ILL transactions in the digital environment. Libraries will continue to be as vigilant in the digital environment as they are in the print environment.
Some libraries have introduced document delivery services to meet the needs of certain types of external users. These cost-recovery-plus services, also called fee-based services, supply reproductions of locally held materials to external clientele, in many cases, from the local business community. When those library-based document delivery services provide documents at fees greater than reasonable cost recovery, they pay royalties or require their clients to do so.
Libraries embrace new delivery technologies and methods such as fax, Ariel, and Federal Express as they are introduced into the marketplace. Although many libraries are now using new delivery technologies, the type of material being requested and supplied has not changed. Because the copyright law is technology neutral, utilizing these new delivery technologies does not affect whether libraries comply with the law or guidelines.
Section 108(g)(2) and the CONTU Guidelines place responsibility for compliance on the requesting library. As suppliers, libraries are not required by law to assume responsibilities for enforcing or tracking specific photocopy transactions. The emphasis on the borrowing library should continue.
In the spring of 1996 representatives of publishers, libraries, scholarly societies, and educational groups agreed that it was premature within the current CONFU environment to develop fair use guidelines for digital transmission of materials publishers make available in digital-only format. The current law and related guidelines enable libraries to engage in ILL activities while moving into the digital environment. Libraries will continue to comply with the law during the transition to the digital future.
Libraries and representatives of scholarly societies and educational groups encourage publishers to increase the amount of copyrighted material available in digital-only format. Publisher-supplied citations and/or abstracts, or copies of digital-only documents, need to be accessible using a variety of methods. One option is for publishers to include information about and ordering links to digital-only documents in the common library utilities and union catalogs (OCLC, RLIN, DOCLINE/SERLINE, WLN, OhioLINK, etc.).
Another option is for publishers to develop and offer a comprehensive database that includes digital-only materials from multiple publishers. Publishers should provide librarians and library users no-fee access to this comprehensive database using a widely and freely available search engine, such as the Web. However, it is recognized that payment may be required for copies of the digital documents. Publishers' use of Z39.50 and other national and international technical standards will enable publishers to provide transparent links to this comprehensive database through libraries' local online catalogs, library utilities, union catalogs, or similar online sources.
Libraries have an interest in acquiring and accessing materials in a cost-effective manner. Libraries will obtain digital-only documents from publishers when publishers provide search access at no cost to a comprehensive, publisher-developed database, and access to and delivery of digital-only documents is reasonable.
A separate document (below) includes specific comments to the May 1, 1996 memo from Jon Baumgarten and Carol Risher to the CONFU ILL Working Group.
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LIBRARY & EDUCATOR COMMUNITY RESPONSE TO JON BAUMGARTEN & CAROL RISHER'S 5/1/96 MEMO RE LIBRARIES INELIGIBLE FOR SECTION 108 PRIVILEGES
August 16, 1996
The library and educator community have reaffirmed that if royalties are due for ILL or document delivery copying, royalties should be paid. The copyright proprietor community should not care whether royalties are paid by the library that makes the copies or the recipient of the copies.
1. Libraries that regularly service business
Libraries are defined in Section 108(a) of the Copyright Act. Section 108 permits libraries to make copies for their own users and for users in other libraries under certain conditions. Many libraries, such as public libraries, serve a variety of types of users; banning ILL for any library that sometimes serves the needs of businesses, particularly if that library is chartered to serve the public, is contrary to society's expectations about libraries.
2. Libraries that actively promote individual article supply services
Many libraries actively promote article supply services under Sections 108(d) and (e). This is an accepted use. Perhaps the real issue is whether libraries that promote article supply services (document delivery) and charge for services beyond reasonable cost recovery to clientele beyond their primary clientele are covered. If the fees for photocopying are beyond reasonable cost recovery, the library is profiting, and thus is no longer eligible for Section 108 exemptions for that activity. Because the library is not covered by Section 108, then royalties on that photocopying that exceeds reasonable cost recovery are required.
3. Libraries that charge more than cost recovery or a specified portion thereof for document delivery
We understand the term document delivery to mean the library service that reproduces documents and delivers reproductions to external clientele for a profit. Libraries that make a profit on this type of document delivery do not qualify for Section 108 library exemptions for such transactions because of Section 108(a)(1). This section states that a library is eligible if the reproduction is made without any purpose of direct or indirect commercial advantage. If a library makes a profit on document delivery services to external clientele, then the library should pay royalties for those reproductions on which a profit is made. If a library charges only on a cost recovery basis, that activity is covered by Section 108 because it is revenue neutral and there is no direct or indirect commercial advantage to the library. When that is the case, then the library is not required to pay royalties on those transactions.
4. Libraries whose volume of non-royalty paid copying exceeds certain aggregate amounts
Because Section 108 does not limit such activity, the library community cannot agree to this point.
5. Libraries that participate in concerted arrangements for the allocation of collections that expressly or implicitly anticipate cross-fulfillment of requests
Libraries in consortial arrangements currently comply with the law and the CONTU guidelines and will continue to do so. There is no need to redefine what constitutes "such aggregate quantities as to substitute for subscription to or purchase of a work." As far as copyright compliance is concerned, ILL transactions among consortial members are the same as those with non-consortial libraries. That is, after receiving five copies under the CONTU suggestion of five, the requesting library has a number of options for copyright compliance. Options include, but are not limited to, ordering subsequent articles from sources that pays royalties, placing a subscription to the title, seeking permission from the copyright holder, or paying royalties as requested.
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