Copyright Questions and Answers for Information Professionals: From the Columns of Against the Grain

Chapter 10: Interlibrary Loan and Document Delivery

173 CHAPTER 10 Interlibrary Loan and Document Delivery Libraries have long participated in interlibrary loan (ILL) activities . Traditionally, lending activities consisted of a borrowing library receiving a request from a user for a volume (usually a monograph or treatise) that the borrowing library did not have in its collection . Libraries developed systems to facilitate the search of holdings records across libraries that so a borrowing library could request the loan of a title from another library that owned a copy of the work. The lending library would then agree to provide the requested volume and mailed it to the borrowing library on the condition that the borrowing library would be responsible for ensuring that the volume was returned within the loan period. These activities did not implicate copyright because there was no reproduction. Though cumbersome, the system worked well and continues to be used to supply volumes for ILL. The primary borrowers were faculty and researchers, and the huge majority of lending libraries were in academic institutions, although some public and corporate libraries also participated in ILL activities. With the development of the photocopier, it became possible to reproduce book chapters and journal articles to satisfy ILL requests. While books continued to be sent through the mail for ILL, few libraries were willing to lend journal volumes. When a user needed only one article from a journal or one chapter from a book, lending a pho- Chapter 10 174 tocopy became standard practice. The photocopy was mailed, and in later years faxed, to the borrowing library. Section 108(g)(2) of the Copyright Act states that nothing prevents a library or archive from participating in interlibrary arrangements that do not have as their purpose or effect receiving copies in such aggregate quantities as to substitute for a subscription to or purchase of a work. As Congress debated the Copyright Act of 1976, it became clear that section 108 needed more specificity about ILL, and so Congress appointed the National Commission on New Technological Uses of Copyrighted Works (CONTU) and asked it to develop guidelines for ILL.1 CONTU produced and published the ILL Guidelines.2 The Guidelines state that each year a borrowing library may request five items from a journal title going back over the most recent 60 months of the journal. For books, the borrowing library may make five requests per year, each year, for the life of the copyright. The borrowing library must retain ILL borrowing records for three calendar years. The Guidelines suggestion of five is just that, and occasionally, a library may exceed that number and still conform to the spirit of the Guidelines. The borrowing library is also responsible for staying within the section 108(d) limits on one article per journal copy per user and to provide the copyright warnings to the user. In addition to the CONTU ILL Guidelines, libraries also follow the strictures of the Interlibrary Loan Code.3 The Code regulates the exchange of materials between libraries in the United States; it details the responsibilities of both borrowing and lending libraries and enjoys wide acceptance in the library community. As with many other library processes, ILL has become digital, and it uses electronic means to identify lending libraries that might supply the needed item, to forward the request, and even to provide the copy. Many lending libraries now send a digital copy to the borrowing library for the user. Borrowing libraries may post the article on a password-protected website for retrieval so that only the borrower who made the request may access it. 1 The other task was to decide what to do about computer programs. 2 H.R. Rep. No. 94-1733 (1976). 3 American Library Association, The Interlibrary Loan Code for the United States, rev’d 2008, http://www.ala.org/rusa/resources/guidelines/interlibrary. Interlibrary Loan and Document Delivery 175 Document delivery, as contrasted with ILL, involves providing copies to users, typically for a fee. Document delivery services may be commercial or nonprofit. If a nonprofit library charges for document delivery, the charge must be no more than cost recovery or the library must pay royalties for the copies, as do commercial document delivery services. Questions in this chapter cover using licensed databases to fill ILL requests, putting the burden for any royalty payments due on the requesting entity, and recordkeeping for ILL, as well as the responsibilities of both borrowing and lending libraries...