Status of the CONTU Guidelines
Many libraries rely on the 1978 guidelines issued by the Commission on New
Technological Uses of Copyrighted Works (CONTU)—specifically, the “Rule
of Five”2—to provide a framework for complying with Section 108(g)(2), which
could bar libraries from using ILL arrangements as a “substitute for a subscription
to or purchase of” copyrighted works. While CONTU and the Rule of Five can
be helpful for libraries in establishing procedures for ILL, they are only
guidelines and do not have the full force and effect of the law. Indeed, the
Conference Report on the 1976 Copyright Act, which endorsed the guidelines,
also acknowledged 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.”3 In short, CONTU is not the law, and Congress and the
CONTU drafters agreed that the law allows more than CONTU contemplates.
Responsibilities of US Libraries
Libraries that make and supply copies in an ILL arrangement generally look for
confirmation from any requesting library that it is acting within the limits of
Section 108. The fulfilling library as a practical matter relies on the good faith
of the requesting library in order to assure that its services are within the scope of
the law. In a typical ILL transaction, a requesting library seeks a copy from
a fulfilling library of a work that is in the fulfilling library’s collection. The
requesting library is in the best position to know whether making the copy
satisfies a statutory exception (e.g., whether it is a “substitute for a subscription
or purchase”), yet the fulfilling library may have possible liability exposure
(because it makes and distributes copies). Therefore, while the fulfilling library
can watch for red flags that indicate bad faith, it must typically rely on
requesting libraries’ representations that all ILL requests are legitimate.
Because the Berne Convention and other international copyright agreements
do not specify any standards for ILL, nations have considerable discretion about
the terms of allowable reproduction and distribution, or even whether to allow ILL
activities at all. As a result, the law on such matters varies greatly from one country
to the next. In the context of a request from a foreign library, a US library that
fulfills the request is still making the copy in the US and therefore is subject to
US law. The fulfilling library accordingly may still want assurances from foreign
partners that can help the US library determine whether the services may run afoul
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White Paper: US Law and International Interlibrary Loan
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C O N T I N U E D
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JUNE 2011 RESEARCH LIBRARY ISSUES: A QUARTERLY REPORT FROM ARL, CNI, AND SPARC
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