Libraries may make, send, and receive copies of copyrighted materials through interlibrary loan (ILL) services under Section 108. The sending and receiving libraries must comply with different provisions of the statute.
Requirements of the library making and sending the copy
In effect, the sending library is making the copy for a patron’s private study or research. In that regard, the library should therefore comply with the private study provisions of Section 108 that permit copies of short items and even entire works under defined circumstances. Copies typically requested through ILL include articles, chapters, and other similar works that are encompassed by those provisions of Section 108.
Requirements of the library receiving the copy
For many activities under Section 108, libraries are allowed to make single or isolated copies, and are not to engage in "systematic reproduction or distribution" of materials. However, libraries are allowed to engage in ILL arrangements, so long as the 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."
The concept underlying this language is that at some point the copying will signal to the library that demand for a work might justify the library’s purchasing its own copy of or subscription to a publication, rather than relying on ILL.
The law does not define the specific threshold at which the library should purchase its own copy of the work. However, the National Commission on New Technological Uses of Copyrighted Works (CONTU) promulgated guidelines that add specificity to this requirement as it applies to journal articles. The CONTU guidelines generally allow a library to receive, in one year, up to five copies of articles from the most recent five years of a journal title.
Alternatives for a library that has reached the prescribed CONTU limit
- The library may purchase its own subscription to the journal.
- The library may choose not to fulfill additional requests for articles from the journal.
- The library may seek permission from the copyright owner to make additional copies; for some works, a license may be available from the Copyright Clearance Center.
- The library may reconsider the appropriateness of the CONTU guidelines for a particular situation; these standards are not law.
- The library may evaluate whether the additional copies are within fair use or another statutory exception.
Used under a Creative Commons BY-NC license from the Copyright Advisory Office of Columbia University, Kenneth D. Crews, director