Using Content: ILL
CONTU Guidelines
 
Test Your Copyright Knowledge
What You Need To Know

Interlibrary loan (ILL) is a service that allows your institution's library to borrow books, journals and other copyrighted material from other libraries. This type of service has been extended at most institutions to include the making and sending of copies even where no actual "loan" is involved.

Section 108 of the Copyright Act allows ILL copying under certain terms and conditions. Specifically, Section 108 allows a qualifying library to copy and send to another library portions of copyrighted materials as part of its ILL service, provided the "aggregate quantities" of copied items received by the borrowing library do not substitute a periodical subscription or purchase of a work.

Unfortunately, Section 108 does not define "aggregate quantities" – creating some ambiguity in interpreting the ILL provision. To help resolve this uncertainty, the National Commission on New Technological Uses of Copyrighted Works (CONTU) developed guidelines during the 1970s with specific allowable amounts for ILL photocopying. The CONTU guidelines are not law and have never been reviewed or revised despite the many changes in technology; however, they still serve as suggestions that help librarians interpret the ILL provision in the Copyright Act. They also help reassure copyright holders that ILL will not replace periodical subscriptions and book purchases by libraries.

Under the CONTU guidelines for delivering photocopies through ILL, the borrowing library tracks patron requests and, once the guidelines are exceeded, the borrowing library reports the usage and pays the required royalty fees.

ILL in the Digital Realm
With the use of digital technology, ILL is evolving and becoming almost indistinguishable from ordinary "document delivery". As a result, new guidelines may have to be developed for the digital environment. At the Conference on Fair Use (CONFU) convened by the U.S. Department of Commerce in the mid-1990s, an attempt was made to develop such guidelines, but nothing relevant to ILL was agreed upon. At the same time, libraries are increasingly transitioning their journal subscriptions from print to digital collections. With the move to digital, the collections are managed through license arrangements with the copyright holders or aggregators. These individual licenses vary widely by content, publisher, type of use and more.

The license accepted by the library is a binding contract. If the library has agreed to the limitations on the use of materials in ILL, then the library is bound by its agreement. Most libraries set internal rules for the kinds of licenses that they will accept, and it is important for libraries to be familiar with the terms of their various licenses. Some licenses are restrictive in terms of access to, and use of, the content by library patrons. For example, content may be accessible to patrons of the library only through a range of IP addresses or on a single workstation within the library. Once the material is accessed, some licenses state that it may only be viewed and printed by the patron.

Some libraries have been successful in negotiating broader terms of use into their licenses – terms that expand the institution's and patrons' rights to use their digital collections. For example, some licenses may allow links to the material for e-reserve purposes or from a course management system on campus. At the same time, these or other licenses may restrict other types of use, particularly interlibrary loan.

In yet other cases, the library may be allowed to use its digital collection to fulfill interlibrary loan requests, but only on a limited basis. For example, the library may be permitted to use content from an electronic journal to fulfill ILL requests, but only after the material is printed and scanned, or printed and then delivered to the patron via fax or mail. Publishers allowing delivery directly from the digital collection are rare and licenses may even restrict delivery to only faculty, staff and students on the campus.

Reporting ILL
Many libraries report interlibrary loan transactions for copyright clearance at the end of the calendar year, however, more frequent reporting makes it easier for the library to track its ILL and helps ensure that permission is recorded on a timely basis. The responsibility for determining compliance falls on the borrowing library and, as long as the copyright transaction is reported on a reasonably timely basis, the borrowing library is fulfilling its copyright obligation.

Once copyright permission is granted, it is a standard practice to retain records for three years, although individual institutions' record retention policies may dictate longer or shorter retention periods.

Library Services vs. For-Profit Information Services
The term ILL is now deemed by most academic institutions to include the delivery of materials, such as photocopies and digital content, that are not returned to the lending library. Therefore, in the broadest sense, ILL has become a type of document delivery.

Traditionally, as its name indicates, ILL has been a library-to-library transaction. However, newer ILL systems that provide copies directly to end-users—especially corporate users—blur this distinction. Many libraries add to the confusion by performing ILL and document delivery in the same section of the library, often called the document delivery service (DDS).

In an effort to distinguish traditional, exempt library services (as defined by section 108 of the Copyright Act) from for-pay information services such as document delivery, copyright holders have suggested that if a library charges for an ILL transaction then the fees received create a commercial benefit for that library because they help pay the library's costs, and the library should pay appropriate royalty fees. On the other hand, many libraries claim that fees received for ILL transactions result in no commercial gain because they cover just a portion of the copying, mailing and staff costs.

The Fee Based Services vs. Non Fee Based Services chart provides an overview of the differences between library services (as defined by section 108 of the Copyright Act) and for-profit information services, and offers guidance as to when copyright permission and royalty payments are, and are not, required.