I’m currently reading Jason Epstein’s Book Business: Publishing Past, Present, and Future. The story behind that simple statement is a long one. The book has gone AWOL from my library’s collection, and after much fruitless searching, my library requested Epstein’s book through an inter-library loan.
Now, if you’re anything like me, then you’ve probably used inter-library loans before without much thought for the process. What’s there to think about? If you’d like to read a work that your library does not own & the library has a system in place for fulfilling patron requests by getting loans from another library, then you use the system, wait a week or so, and pesto chango — the book arrives, perhaps with a funny sleeve and a more restricted return policy, but otherwise, nothing is particularly noteworthy.
In cases where an entire work, in its original form, is delivered to the borrowing library, then besides the resources and technical support put in place to allow for such a process to operate smoothly, there’s indeed not much more to be said about inter-library loans (at least by me). However, in the case where a copy of the original material is made — perhaps because the requested material is a single article in a journal or the delivery method is electronic instead of snail mail — then a whole can of worms is opened — that of the legal, legislated, litigated kind.
§ 108(g)(2) of the US Copyright Act allows for libraries and archives to photocopy and distribute copyrighted works for the purpose of “participating in interlibrary arrangements” as long as those inter-library arrangements “do not have, as their purpose or effect, that the library or archives receiving such copies or phonorecords for distribution does so in such aggregate quantities as to substitute for a subscription to or purchase of such work”.
What does that mean? A lot of effort has gone into trying to answer that question. In particular, something called the CONTU Guidelines on Photocopying under Interlibrary Loan Arrangements was drafted by the National Commission on New Technological Uses of Copyrighted Works and adopted by many libraries as the standard for interpreting and complying with § 108(g)(2). The language of the CONTU guidelines may be read in full here and a briefer summary is here. In particular, the CONTU guidelines
- provide guidance for libraries to copy & distribute copyrighted materials whose publication date is less than 5 five years from the date of the request for the inter-library loan
- stipulate that no more than 5 articles from a single periodical may be copied in a calendar year
- prohibit copying of a non-periodical more than 6 times during the entire period for which the work is copyrighted
- mandate record keeping and display of copyright notice
Further complicating the matter is the question of whether the CONTU guidelines set necessary and sufficient conditions for complying with copyright laws, or simply sufficient, or simply necessary conditions. As the note accompanying the guidelines reads
It is recognized that their purpose is to provide guidance in the most commonly-encountered interlibrary photocopying situations, that they are not intended to be limiting or determinative in themselves or with respect to other situations, and that they deal with an evolving situation that will undoubtedly require their continuous reevaluation and adjustment.
Yet for all its complexity, the CONTU guidelines are recognized as one of the simpler, more clear-cut, and more easily executable of all the guidelines that set standards for using copyrighted materials in the classroom without the copyright holder’s explicit permission. That said, I will never look at an inter-library lent book in the same way again.
Addendum: An important lawsuit — Cambridge University Press et al. v. Patton et al. — involving interpretations around the
CONTU guidelines on Classroom Copying in Not-For-Profit Educational Institutions is currently brewing. A final judgment in the case is not expected for years (provided that the parties to the suit do not settle out of court). For more of commentary on the suspense (woo), please see here, here, and here.